On May 1, 2011, changes made to the Texas Expunction statute by the 82nd Legislature will take effect. Chapter 55 of the Texas Code of Criminal Procedure was altered to help defendants obtain employment, housing, as well as education. The changes were meant to overrule State v. Beam, 226 S.W.3d 392 (Tex. 2007), which held that a dismissed charge cannot be expunged until the statute of limitations had run.

Subsection (a)(2) was completely re-written. Language was added that entitles a person to an expunction (destruction of their criminal records), regardless of the statute of limitations, if an indictment or information has not been presented at any time after the arrest, and: at least 180 days has passed since arrest for a Class C misdemeanor such as public intoxication, at least one year has passed since arrest for a Class B or Class A misdemeanor; at least 3 years has passed since an arrest for a felony; or regardless of the waiting periods, the attorney representing the state certifies that applicable arrest records and files are not needed for use in any criminal investigation or prosecution, including an investigation or prosecution of another person. However, even if an indictment or information has been presented against the defendant, the attorney for the state can recommend the person for an expunction. If the attorney representing the state authorized to prosecute the offense that caused the defendant to be arrested, and recommends the expunction to the district court before the defendant is tried for the offense the defendant may obtain an early expunction.
The problem is figuring out how amenable prosecutors in the Travis County District Attorney’s Office, Travis County Attorney’s Office, and Prosecutors for the city of Austin will be to an early expunction. This law will cause statewide differences in how early expunctions are treated.