Expunction Allows the Removal of Some Criminal Information from the Public Record, With an Important Limitation Because of the Internet

The criminal justice system generates a vast amount of records, including case files, arrest reports, and jail records. An acquittal or dismissal of charges, unfortunately, does not end the impact of a case on a person’s life. A background search could reveal information that harms their chances at employment, even if they have no convictions. Most states allow people to remove information about dismissed cases from the public record, a process known as “expunction” or “expungement.” These processes predate the internet, though. Today, a background check might include a search of public records and a Google search. A recent court case considered whether an expunction requires private entities like news services to remove references to an arrest. The general rule has been and remains that expunction does not place restrictions on private individuals or businesses.

In Texas, expunction is available in many cases that resulted in an acquittal, convictions that have been overturned on appeal, cases in which the defendant received a pardon, cases in which the defendant has successfully completed a program of deferred prosecution and received a dismissal of charges, and cases in which charges were never filed. Tex. Code Crim. P. Art. 55.01. Juvenile records are typically sealed at some point after a case concludes, Tex. Fam. Code § 58.003, but expunction procedures are also available in many juvenile cases.

An individual must petition for an expunction in the same court that heard the criminal case, or in the same jurisdiction as the arrest if no charges were filed. Tex. Code Crim. P. Art. 55.02. If granted, the expunction order directs court clerks, law enforcement agencies, and other offices to remove and destroy records related to the case. Any use, distribution, or publication of expunged records is prohibited, and the person “may deny the occurrence of the arrest.” Tex. Code Crim. P. Art. 55.03.

An expunction order only directly addresses public officials and agencies, but in the modern world, arrests and criminal cases leave an online trail. The Second Circuit Court of Appeals heard the case of a woman who sued several news organizations for defamation when they refused to remove information about an arrest that was subject to expunction. She argued that, since the expunction effectively meant that the arrest never happened, the defendants had published false, damaging information about her. The case pitted a person’s “right to be forgotten” with the media’s First Amendment right to free speech. The Second Circuit sided with the media. Martin v. Hearst Corp., 777 F.3d 546 (2d Cir. 2015).

The general rule in the United States is that the government may not compel the removal or retraction of “truthful information about a matter of public significance.” Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103 (1979). The plaintiff’s claims in Martin had more in common with the rule established by the European Court of Justice (ECJ) in 2014. The ECJ ruled that search engines, such as Google, must remove information about a person upon their petition if the information is inaccurate, but also if it is “inadequate, irrelevant…[or is] not kept up to date.” Google Spain SL, et al v. Agencia Española de Protección de Datos, et al., Case C-131/12, judgment at ¶ 92 (ECJ, May 13, 2014).

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Board-certified white collar criminal defense attorney Michael J. Brown has over 20 years of experience representing people in west Texas criminal cases at the state and federal levels. To schedule a confidential consultation to see how we can assist you, contact us today online or at (432) 687-5157.

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