Can a Texas DA require you to give up your right to expunge an arrest to enter pretrial diversion?

Plain-English summary

The Nueces County District Attorney asked the AG whether the State may make a defendant waive the right to expunge the arrest record as a condition of entering a pretrial diversion program for that offense. The DA ran a pretrial diversion or intervention program to rehabilitate first-time offenders charged with minor, nonviolent crimes and let them avoid a conviction. The DA wanted to keep the record of a participant's offense, because if the person later reoffended, that history would matter to whether to offer a second chance at diversion. The question was whether the office could condition diversion on giving up the expunction right.

The AG concluded the State may do this. Expunction under Article 55.01 of the Code of Criminal Procedure is purely a statutory privilege, not a constitutional or common-law right, and completing a pretrial intervention program is itself one of the statutory grounds for an expunction order. But Article 1.14(a) of the same code provides that a defendant can waive any rights secured to him by law. Because the expunction right is one secured by law, a person may waive it.

The AG leaned on a consistent line of cases from the El Paso Court of Appeals, the only court to have taken up this specific question. Those decisions hold that a person may waive expunction rights as a condition of a pretrial intervention program, that a prosecutor and defendant who enter such an agreement are parties to a contract, and that the waiver is judicially enforceable so long as it is knowing and intelligent; one of them rejected the argument that such a waiver is against public policy. The role of an AG opinion is to predict how a court would likely rule, and the AG read these decisions as compelling the conclusion that Article 1.14 allows a person to waive the right to seek expunction of arrest records as a condition in a pretrial diversion agreement, provided the waiver is voluntary, knowing, and intelligent.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The requesting district attorney (as the opinion described it): The opinion answered that Article 1.14 of the Code of Criminal Procedure allows a person to waive the right to seek expunction of arrest records as a condition in a pretrial diversion agreement, so the DA could require such a waiver to let a defendant participate, as long as it was voluntary, knowing, and intelligent.

Prosecutors offering pretrial diversion (as the opinion described them): The opinion treated a pretrial diversion agreement that waives expunction rights as an enforceable contract between the prosecutor and the defendant, consistent with the El Paso Court of Appeals decisions.

Defendants considering pretrial diversion (as the opinion described them): The opinion described the expunction right as a statutory privilege a defendant may give up, and emphasized that a waiver is enforceable only if it is made voluntarily, knowingly, and intelligently.

Common questions

Can a prosecutor make me waive my right to expunge my arrest to get pretrial diversion?
Under this opinion, yes. The AG concluded Article 1.14 lets a person waive the right to seek expunction as a condition of a pretrial diversion agreement, if the waiver is voluntary, knowing, and intelligent.

Is expunction a constitutional right?
No. The opinion described expunction as purely a statutory privilege, not a constitutional or common-law right, which is part of why it can be waived.

Is a waiver of expunction rights enforceable?
The opinion said courts treat such a waiver as a judicially enforceable contract term, unless it was not made knowingly and intelligently.

What makes the waiver valid?
The opinion required that the waiver be made voluntarily, knowingly, and intelligently, and noted the trial court must ensure that is so.

Background and statutory framework

Article 55.01 of the Code of Criminal Procedure entitles a person arrested for a misdemeanor or certain felonies to have records and files relating to the arrest expunged on meeting specified requirements (Tex. Code Crim. Proc. art. 55.01), and completing a pretrial intervention program is one statutory ground for an expunction order (Tex. Code Crim. Proc. art. 55.01(a)(2)(A)(ii)). Expunction is purely a matter of statutory privilege, not a constitutional or common-law right (In re State Bar of Tex., 440 S.W.3d 621, 624 (Tex. 2014); T.C.R. v. Bell Cty. Dist. Att'y's Office, 305 S.W.3d 661, 663 (Tex. App.—Austin 2009, no pet.)). A defendant may waive any rights secured to him by law (Tex. Code Crim. Proc. art. 1.14(a)), so a person may waive the right to seek expunction (In re State Bar of Tex., 440 S.W.3d at 626; In re Expunction of Jones, 311 S.W.3d 502, 506 (Tex. App.—El Paso 2009, no pet.)).

The El Paso Court of Appeals, the only court to have considered the question, has established in several opinions that a person may waive expunction rights as a condition of a pretrial intervention program if the waiver is voluntarily, knowingly, and intelligently made: rejecting a public-policy challenge to such a waiver (In re Expunction of M.C., 412 S.W.3d 48, 53-54 (Tex. App.—El Paso 2013, pet. denied)); treating the prosecutor and defendant as parties to a contract (In re Expunction of D.R.R., 322 S.W.3d 771, 773-74 (Tex. App.—El Paso 2010, no pet.)); holding the waiver judicially enforceable unless not knowingly and intelligently made (In re Expunction of R.B., 361 S.W.3d 184, 187 (Tex. App.—El Paso 2012, pet. denied)); requiring the trial court to ensure the waiver is knowing, intelligent, and voluntary (In re Expunction of Jones, 311 S.W.3d at 505); and finding a signed agreement voluntary (In re Expunction of Arnold, 34 S.W.3d 583, 586-87 (Tex. App.—El Paso 2000, no pet.)). Because an AG opinion assesses how a court would likely rule in light of prior decisions (Tex. Att'y Gen. Op. No. KP-0143 (2017) at 2), these decisions compelled the conclusion that Article 1.14 allows a waiver of the expunction right as a condition in a pretrial diversion agreement, provided it is voluntary, knowing, and intelligent.

Citations

Statutes:

• Tex. Code Crim. Proc. arts. 55.01, 55.01(a)(2)(A)(ii), 1.14(a)
• Tex. Att'y Gen. Op. No. KP-0143 (2017)

Cases:

• In re State Bar of Tex., 440 S.W.3d 621 (Tex. 2014)
• T.C.R. v. Bell Cty. Dist. Att'y's Office, 305 S.W.3d 661 (Tex. App.—Austin 2009, no pet.)
• In re Expunction of Jones, 311 S.W.3d 502 (Tex. App.—El Paso 2009, no pet.)
• In re Expunction of M.C., 412 S.W.3d 48 (Tex. App.—El Paso 2013, pet. denied)
• In re Expunction of D.R.R., 322 S.W.3d 771 (Tex. App.—El Paso 2010, no pet.)
• In re Expunction of R.B., 361 S.W.3d 184 (Tex. App.—El Paso 2012, pet. denied)
• In re Expunction of Arnold, 34 S.W.3d 583 (Tex. App.—El Paso 2000, no pet.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0158
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0158.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

August 8, 2017

The Honorable Mark A. Gonzalez Opinion No. KP-0158
Nueces County District Attorney
Nueces County Courthouse Re: Whether the State may obtain a waiver
901 Leopard, Room 206 of a defendant's right to seek expunction of
Corpus Christi, Texas 78401-3681 the record of arrest for the offense for which
it places the defendant in pretrial diversion
(RQ-0148-KP)

Dear Mr. Gonzalez:

    Article 55.01 of the Code of Criminal Procedure entitles a person arrested for commission of a misdemeanor or certain felonies to have all records and files relating to the arrest expunged by meeting specified requirements. TEX. CODE CRIM. PROC. art. 55.01. You state that you have a pretrial diversion or intervention program to rehabilitate first-time offenders charged with minor, nonviolent crimes and thereby avoid a criminal conviction. [1] You explain that you would like to retain the record of a program participant's offense because, should the person reoffend, that information would be pertinent to whether to offer a second chance at pretrial diversion. Request Letter at 2. You ask whether the State may require a defendant to waive the right to expunge the record of the arrest for an offense in order to participate in a pretrial diversion program for that offense. Id. at 1-2.

    Expunction is purely a matter of statutory privilege, not a constitutional or common-law right. In re State Bar of Tex., 440 S.W.3d 621, 624 (Tex. 2014); T.C.R. v. Bell Cty. Dist. Att'y's Office, 305 S.W.3d 661, 663 (Tex. App.—Austin 2009, no pet.). One of the statutory grounds for granting an expunction order is a person's completion of a pretrial intervention program. TEX. CODE CRIM. PROC. art. 55.01(a)(2)(A)(ii). However, a defendant can "waive any rights secured him by law." Id. art. 1.14(a). Because a person may waive "any rights secured him by law," a person may waive the right to seek expunction. Id.; see In re State Bar of Tex., 440 S.W.3d at 626 (recognizing that expunction rights can be waived); In re Expunction of Jones, 311 S.W.3d 502, 506 (Tex. App.—El Paso 2009, no pet.) (reversing expunction order because of the defendant's signed waiver).

    While the El Paso Court of Appeals appears to be the only court to have considered your specific question, several of its opinions establish that a person may waive the right to expunction as a condition of participation in a pretrial intervention program, provided the waiver is voluntarily, knowingly, and intelligently made. See In re Expunction of M.C., 412 S.W.3d 48, 53-54 (Tex. App.—El Paso 2013, pet. denied) (rejecting argument that waiver of expunction rights as condition of pretrial diversion program is against public policy); In re Expunction of D.R.R., 322 S.W.3d 771, 773-74 (Tex. App.—El Paso 2010, no pet.) (holding that prosecutor and defendant who enter into pretrial diversion agreement waiving expunction rights are parties to a contract); In re Expunction of R.B., 361 S.W.3d 184, 187 (Tex. App.—El Paso 2012, pet. denied) (holding that a waiver of expunction rights "is judicially enforceable unless the waiver is not knowingly and intelligently made"); In re Expunction of Jones, 311 S.W.3d at 505 (holding that the trial court must ensure that "waiver is knowing, intelligent, and voluntary"); In re Expunction of Arnold, 34 S.W.3d 583, 586-87 (Tex. App.—El Paso 2000, no pet.) (finding that signed agreement was voluntary). The role of an attorney general opinion is to assess how a court would likely rule on a legal question in light of prior court decisions. See Tex. Att'y Gen. Op. No. KP-0143 (2017) at 2. The multiple opinions directly addressing the issue compel the conclusion that article 1.14 of the Code of Criminal Procedure allows a person to waive the right to seek expunction of arrest records and files as a condition in a pretrial diversion agreement, provided the waiver is voluntarily, knowingly, and intelligently made.

                                 SUMMARY

                   Article 1.14 of the Code of Criminal Procedure allows a
          person to waive the right to seek expunction of arrest records and
          files as a condition in a pretrial diversion agreement, provided the
          waiver is voluntarily, knowingly, and intelligently made.

                                        Very truly yours,

                                        KEN PAXTON
                                        Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Mark A. Gonzales, Nueces Cty. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 2 (Feb. 14, 2017), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").