If I bundle several charges on one Virginia expungement petition and the court only grants expungement on some of them, do I get my filing fee back?

Plain-English summary

The Clerk of the Chesterfield Circuit Court asked Attorney General Jason Miyares a practical question that comes up often: a person files a single expungement petition listing several criminal charges. The court grants expungement for some of those charges and denies it for the rest. Does the petitioner get a refund of the filing fee, and if so, how much?

Miyares concluded that the petitioner gets a full refund of the filing fee as soon as the court grants expungement on at least one charge. Section 19.2-392.2(L) of the Virginia Code says that "if the court enters an order of expungement, the clerk of the court shall refund to the petitioner such costs paid by the petitioner." The AG read that language literally. There is no provision authorizing the clerk to keep part of the fee or to prorate it based on which charges were denied.

The opinion turns on close statutory reading: the legislature wrote "an order" (not "a final order disposing of every charge") and "such costs paid" (not "the proportional share of costs attributable to the granted charges"). Where the General Assembly knows how to limit a refund and chose not to, the clerk must follow the plain text.

What this means for you

If you are filing an expungement petition in Virginia

Group your charges on a single petition where the law allows it. There is no procedural penalty for a denied charge inside an otherwise successful petition: as long as the court grants expungement on at least one charge, you should receive a full refund of the filing fee. There is no requirement to allocate the fee across charges or to refile separately for the granted charges.

If you need separate orders for charges arising out of different cases or in different jurisdictions, that procedural choice is independent of the refund question. The refund rule is about a single petition, not about how many petitions you might file.

If you are a circuit court clerk in Virginia

Treat the refund as automatic on entry of any expungement order tied to a multi-charge petition. The opinion forecloses arguments that the clerk should keep a portion of the fee in proportion to denied charges, and it forecloses arguments that the clerk should issue no refund unless every charge was expunged. Update internal accounting procedures so the full filing fee follows the first granted charge out the door.

If your office historically prorated or withheld refunds in this scenario, this opinion will produce a course correction. Document the policy change so that prior-petition follow-up requests can be answered consistently.

If you are a criminal defense or legal aid attorney

This makes bundling charges economically rational for the client. A single petition fee covers any number of qualifying charges, and even a partial win triggers a full fee refund. For clients with one strong charge and several weaker ones, bundling now has a built-in cost protection: the fee is recovered as long as the strong one wins.

For clients challenging an existing court denial of a refund based on partial-grant logic, this opinion gives you persuasive authority for a motion to reconsider or a writ targeting the clerk's fee handling.

If you are a Commonwealth's Attorney

The opinion changes nothing about your role at the merits stage. The only operational impact is that a partial victory by your office (denial of some charges) will not be matched by a partial keeping of the fee on the other side. That detail does not change how you evaluate or oppose petitions.

Common questions

Q: Does this opinion say I can lump unrelated charges from different cases onto one petition?
A: No. The AG explicitly limited his analysis to the refund question and noted that the Code is silent on how many charges may be listed on a single petition. Whether multi-case bundling is allowed in your circuit is a separate procedural question. Check your local practice and § 19.2-392.2(C) for the documentation each charge requires.

Q: What if all the charges in my petition are denied?
A: No expungement order is entered, so § 19.2-392.2(L) is not triggered. You do not receive a refund. The opinion only addresses what happens when at least one charge is granted.

Q: How much is the filing fee?
A: The amount is set by § 17.1-275, which is a fee schedule that gets updated by the General Assembly periodically. Confirm the current figure with the clerk's office before filing.

Q: Is there a fee waiver if I'm an identity-theft victim?
A: Yes. Section 19.2-392.2(B) eliminates the fee requirement when the petition is based on the petitioner having been a victim of identity theft. In that situation the refund question never arises because no fee was charged.

Q: Does the refund happen automatically or do I have to request it?
A: The statute uses "shall," which makes it mandatory. The clerk has no discretion to withhold it. In practice, you may need to follow up with the clerk's office after the order is entered, but the legal entitlement is automatic.

Background and statutory framework

Virginia's expungement statute, § 19.2-392.1, exists to "protect [qualifying] persons from the unwarranted damage [that] may occur as a result of being arrested and convicted." Eligibility is limited: only charges that ended in acquittal, nolle prosequi, or other dismissal qualify. § 19.2-392.2 lays out the procedure (petition with documentation, notice to the Commonwealth's Attorney, possible hearing, manifest-injustice standard for some charges, simpler standard for first-time misdemeanor petitioners).

Subsection (L) is the cost rule: the petitioner pays the filing fee up front (§ 17.1-275 sets the amount), and gets it back if the court orders expungement. The Chesterfield clerk asked about a gap in that rule: what happens when the petitioner bundled multiple charges and the court split the result. The General Assembly did not write a proration rule, so the AG declined to invent one. The opinion relies on the canon that "a statute directing [a] thing[] to be done in a particular manner implies that it shall not be done otherwise."

Citations and references

Statutes:
- § 19.2-392.1, Va. Code Ann. (purpose statement)
- § 19.2-392.2, Va. Code Ann. (expungement procedure and refund rule)
- § 17.1-275, Va. Code Ann. (clerk fee schedule)

Cases:
- City of Portsmouth v. City of Chesapeake, 205 Va. 259 (1964) (plain meaning canon)
- Palmer v. Atl. Coast Pipeline, LLC, 293 Va. 573 (2017) (legislative intent in statutory words)
- Phelps v. Commonwealth, 275 Va. 139 (2008) (ordinary meaning of "an" as "any" or "each")
- Jackson v. Fid. & Deposit Co., 269 Va. 303 (2005) (limitation-by-implication canon)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2023/22-057-Hughes-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA

Office of the Attorney General

Jason S. Miyares
Attorney General

202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

November 9, 2023

The Honorable Wendy S. Hughes
Clerk of the Chesterfield Circuit Court
Post Office Box 125
Chesterfield, Virginia 23832-0125

Dear Ms. Hughes:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether a petitioner seeking the expungement of records under Virginia Code § 19.2-392.2 is entitled to a full refund of his costs when multiple charges are listed on a single petition and the expungement is granted with respect to at least one, but not all of, the charges.

Response

It is my opinion that, when multiple offenses are listed on a single petition for expungement filed under § 19.2-392.2, the petitioner is entitled to a refund of his costs if an expungement is granted on at least one of the charges listed.

Applicable Law and Discussion

"[T]o protect [qualifying] persons from the unwarranted damage [that] may occur as a result of being arrested and convicted[,]" Virginia law affords individuals the ability to seek expungement of their police and court records relating to certain charges. Section 19.2-392.2 of the Code governs the procedures for obtaining an expungement. Only charges that resulted in an acquittal, a nolle prosequi or other dismissal are eligible for expungement.

Pursuant to § 19.2-392.2, an individual may file a petition for expungement with the appropriate court. The petition must include specified accompanying documentation, if available, or provide other pertinent information if the required documents are unavailable. The petitioner also must arrange for his criminal history record information to be delivered to the court. The Commonwealth's Attorney must be served with a copy of the petition and given an opportunity to object. A petitioner also is responsible for paying court costs to the clerk of court in the form of a filing fee as otherwise established by law.

Once the procedural requirements are met, the court will review the petition. Section 19.2-392.2(F) directs that

If the court finds that the continued existence and possible dissemination of information relating to the arrest of the petitioner causes or may cause circumstances which constitute a manifest injustice to the petitioner, it shall enter an order requiring the expungement of the police and court records . . . relating to the charge. Otherwise, it shall deny the petition.

"[I]n the absence of good cause shown to the contrary by the Commonwealth," a petitioner also is entitled to an expungement order if he "has no prior criminal record and the arrest was for a misdemeanor violation or the charge was for a civil offense[.]"

As you are aware, once the court orders a records expungement, the petitioner is entitled to a costs refund. Your inquiry envisions a situation involving judicial consideration of a single petition listing multiple charges, with the reviewing court then entering an order granting the petition with respect to at least one, but not all, of the charges, with the remainder denied. You ask the extent to which a petitioner is entitled to a refund in this circumstance.

Section 19.2-392.2(L) expressly provides that, "if the court enters an order of expungement, the clerk of the court shall refund to the petitioner such costs paid by the petitioner." This language is plain and admits of no construction. It is well established that "where the language of a statute is free from ambiguity, the plain meaning is to be accepted without resort[ing] to the rules of interpretation." Further, "[w]hen interpreting and applying a statute, we assume that the General Assembly chose, with care, the words it used in enacting the statute, and we are bound by those words."

I first note the use of the word "an" in the statute. The Supreme Court of Virginia has recognized that "[t]he ordinary meaning of the word 'a' means 'any' or 'each.'" Accordingly, I conclude that a clerk's obligation to provide a refund is triggered whenever the judge enters any order that grants an expungement of any record associated with any single charge listed in a petition. In addition, the statute requires the clerk to return the "costs paid." The Code thus does not contemplate the return of any amount other than that which the petitioner had paid when he filed his petition, and I find no authority for the clerk to reduce or prorate the amount of the costs that are refunded. "[A] statute directing [a] thing[] to be done in a particular manner implies that it shall not be done otherwise"; accordingly, the plain text of § 19.2-392.2(L) demands that the petitioner must be afforded a full refund of the costs he paid to file the petition. I therefore conclude that, in the event multiple charges have been placed on a single petition for expungement, the language of § 19.2-392.2(L) directs the clerk to afford the petitioner a full refund of his costs if an expungement is granted with respect to at least one of the charges listed.

Conclusion

Accordingly, it is my opinion that when multiple charges are listed on a single petition for expungement filed under § 19.2-392.2(A), the petitioner is entitled to a refund of all his costs if an expungement is granted with respect to at least one of the listed charges.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General