Pretrial Diversion and Expunctions

In criminal matters, pretrial diversion is a common way in which cases are disposed. Pretrial diversion is simply a set of conditions that a defendant must meet in order for their case to be dismissed. In that way, it is similar to probation. A person placed on probation has to be on probation for a certain amount of time and meet certain conditions before they can get off probation. But probation occurs when there is a conviction. Pretrial diversion occurs prior to the conviction. The defendant is arrested, an indictment against the defendant is presented, the defendant completes a pretrial diversion program and then the indictment is dismissed.

Once dismissed, it’s effectively like there was never an indictment except for the fact that all the entities and agencies involved in the process from arrest to dismissal still have a record of the arrest and/or indictment. The arresting agency like the municipal police department or the county sheriff’s office will have a record of the arrest. The court and clerk in the county in which the case took place will have records of the proceedings. That’s where an expunction comes in.

The law to the rescue

Thankfully, the law explicitly provides for one to be able to clear their record after completing a pretrial diversion program. Pretrial diversion is what it’s called in places like Kaufman County and Rockwall County, but it is called a memo agreement in places like Dallas County. No matter what the program is called, it entitles you to have your record cleared.

Not to get too technical, but Article 55.01 of the Texas Code of Criminal Procedure is the specific provision of the law that deals with expunctions. Google it if you’d like to give it a read. It outlines many other ways in which one can be entitled to an expunction. But the specific provision dealing with pretrial diversion is 55.01(a)(2)(A)(ii) which states that a person is entitled to an expunction if:

“the person has been released and the charge…has not resulted in a final conviction…provided that…an indictment or information charging the person…was dismissed or quashed, and the court finds the indictment or information was dismissed or quashed because the person completed a pretrial intervention program.”

There you have it. A 2011 amendment to the law expanded the law to allow expunctions for both misdemeanors and felonies. Previously this section of the law only applied to felonies.

The expunction process

The process for obtaining an expunction involves filing a petition for the expunction of records in the county in which the indictment was presented. Certain information about the arrest, the court proceedings, and other ministerial information involved with the incident must be included in the petition. Once filed, some counties require that the case be set for a hearing on the petition at which the judge will consider the petition and any objection the district attorney may have. In some cases we are able to get the district attorney to raise no objection in which case no hearing is required.

If you completed a pretrial diversion program in Kaufman County or Rockwall County or a memo agreement in Dallas County, give one of our expunction attorneys a call at (972) 564-4644. We would be happy to meet with you for a free, initial consultation to review your case and discuss the options available to you.

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