New U.S. Supreme Court Decision-Sentencing Guidelines

The Supreme Court ruled on Thursday that a federal criminal sentence within
the Guidelines may be presumed to be reasonable when the case is on appeal.
However, it said that such a presumption is not binding.. Although the
Court was divided in some respects, the vote on the result was 8-1 with
only Justice David H. Souter dissenting in Rita v. U.S. (06-5754).

In discussing its conclusion that such a presumption is not binding,
Justice Stephen G. Breyer's main opinion said: "The presumption...does not,
like a trial-related evidentiary presumption, insist that one side, or the
other, shoulder a particular burden of persuasion or proof lest they lose
the case...Nor does the presumption reflect strong judicial deference of
the kind that leads appeals courts to grant greater factfinding leeway to
an expert agency than to a district judge. Rather, the presumption reflects
the fact that, by the time an appeals court is considering a
within-Guidelines sentence on review, both the sentencing judge and the
Sentencing Commission will have reached the same conclusion as to the
proper sentence in the particular case. That double determination
significantly increases the likelihood that the sentence is a reasonable
one. Further, the presumption reflects the nature of the Guidelines-writing
task that Congress set for the Commission and the manner in which the
Commission carried out that task."

The Court added: "A non-binding appellate presumption that a Guidelines
sentence is reasonable does not require the sentencing judge to impose that
sentence. Still less does it forbid the sentencing judge from imposing a
sentence higher than the Guidelines provide for the jury-determined facts
standing alone. As far as the law is concerned, the judge could disregard
the Guidelines and apply the same sentence (higher than the statutory
maximum or the bottom of the unenhanced Guidelines range) in the absence of
the special facts (say, gun brandishing) which, in the view of the
Sentencing Commission, would warrant a higher sentence within the
statutorily permissible range. Thus, our Sixth Amendment cases do not
forbid appellate court use of the presumption."





David Finn

Finn Teams up with Dan Cogdell and Mike Gibson in Dallas DISD Case

Here's an interesting article that appeared in Texas Lawyer regarding Attorney Dan Cogdell. I've never met him but I look forward to working with Dan in the recently-indicted Dallas DISD case. The case described below reminds me of a good John Grisham novel. Maybe Dan's working on the screen-play now.

Enron Defendant Worked Alongside Attorneys to Win Acquittal
Brenda Sapino Jeffreys
Texas Lawyer
November 18, 2004


When Houston lawyer Dan L. Cogdell defends a client from criminal charges, the client usually is nowhere to be found when Cogdell studies discovery and develops a defense. But that wasn't an option for former Enron Corp. employee Sheila K. Kahanek, a self-described "major anal-retentive" who was determined to go to trial to fight the charges against her and felt compelled to analyze every piece of evidence in the government's case.

The unusual collaboration between Cogdell and his client paid off in a big way for Kahanek, who was the only one of six defendants in the so-called Nigerian barge trial to win acquittal on Nov. 3 in U.S. District Judge Ewing Werlein's court in Houston.

"There's no way I would have won the trial without Sheila working her ass off," says Cogdell, of Cogdell Law Group. "She literally had this trial indexed, highlighted, organized."

"She knows every document in the case -- cold," he says.

Cogdell estimates the value of Kahanek's work on her own defense at $150,000 to $200,000. An associate or paralegal normally would have handled much of the work Kahanek did, he says.

"She definitely saved herself a lot of money by doing a lot of the work, but her insight into the discovery, her insight into the processes of how things worked at Enron was definitely indispensable," says G. Allen Goodling, Cogdell's former partner who also worked on Kahanek's defense.

Jury consultant Richard Waites, who has assisted lawyers and parties in trials for 25 years, says Kahanek's role in her defense was not only very unusual, but also very effective.

"It's very simple. In this case she was motivated, she had an eye for detail, and she understood that she didn't know everything," Waites, president of The Advocate in Houston, says. "She was confrontational with Dan, but in a healthy way -- she asked lots of questions, in other words. If she didn't understand something, she spoke up, and she never presumed she knew the playing field and knew the rules of the game."

In the verdict returned on Nov. 3, a 12-member jury found Kahanek, 38, not guilty of charges of conspiracy to commit wire fraud and to falsify books and records. Five other defendants, including one former Enron employee and four former employees of Merrill Lynch, were found guilty of those charges.

In United States of America v. Daniel Bayly, et al., the government brought criminal charges in connection with a December 1999 deal in which Merrill Lynch bought some electricity-producing Nigerian barges from Enron. The indictment alleged Enron parked the barge assets with Merrill, promising to buy them back within six months at a profit for Merrill, to "enhance fraudulently" its 1999 financial reports.

The indictment alleged that there was an oral agreement in which Enron promised to buy the barges back from Merrill Lynch, but Kahanek testified that she knew nothing while working at Enron about any side deal.

NO STONE UNTURNED

Kahanek says she actually had a little practice at litigation support before she found herself in the precarious position of being one of the first two former Enron employees to go to trial in a federal criminal trial stemming from the downfall of the once high-flying energy company.

Kahanek, a graduate of the University of Houston-Clear Lake, wasn't a long-term employee of Enron. Before taking a position in Enron's Asia Pacific/Africa/China division (APACHI) in 1998, she worked in the audit department at Ernst & Young, where she did some litigation support. She left Enron in mid-2001, and after taking off a few months, returned to Ernst & Young.

While a director at APACHI in 1999, Kahanek says she worked on structuring the Nigerian barge deal, but says she knew nothing about an oral agreement between Enron and Merrill Lynch, and repeatedly warned against it as the people negotiating the deal for Enron proposed "what ifs" about the structure of the deal. She says she consistently said, "no buybacks, no commitments, no guarantees, period."

Kahanek says she was surprised when she was indicted in September 2003 in connection with the barge deal.

In 2002, Kahanek recalls, she met with two federal investigators who questioned her about Enron's Broadband division. Nothing at that meeting -- she says she met the investigators at a Starbucks coffee shop -- worried her.

But in August 2003, the Enron Task Force called Kahanek in for questioning again, and that time the meeting was at the offices of the task force in the Bob Casey U.S. Courthouse in Houston. After Assistant U.S. Attorney Andrew Weissmann, now head of the task force, told her that her status was somewhere between a witness and a subject, Kahanek asked to do the interview at another time when she could return with an attorney.

She was indicted the next month, before she could reschedule that interview.

Weissmann did not return a telephone message seeking comment before presstime on Nov. 11.

Kahanek says Houston criminal-defense lawyers Christopher Downey and Patrick Stallings represented her at the time, but she was determined to go to trial, and she wanted to hire a lawyer with a lot of trial experience in federal court. A friend arranged a meeting with Houston's Dick DeGuerin, of DeGuerin, Dickson & Hennessy, who gave her the names of a few other lawyers, including Cogdell. She says she interviewed three or four lawyers, but Cogdell impressed her immediately.

"I liked his attitude, his confidence," she recalls.

She told him at their first meeting that she wanted to have an active role in her defense.

"Because this was my case, I wanted to see everything. I wanted to review everything. I didn't want to leave a stone unturned, and I would be handling the majority of that," she says. "Dan has an amazing ability to understand some of the key concepts of some of the structuring issues, but at the same time, when I was aware of certain parts of it, it was easier for me to sift through some of the minutia."

Downey, of Downey Law Firm, says, "I don't think I've ever encountered anybody who was so willing to digest and collate more information than Sheila. She was truly unique in that regard." Stallings, of Stallings & Mount, says Kahanek made it clear she would be involved.

She says each of the lawyers she interviewed was receptive to her plans to work on her defense, and she acknowledges it was a factor in her fee negotiations.

"They all knew that I was available and I had a good understanding of all of these things, and they could pretty much stick to their core competency, which is the criminal aspects of it, and I could stick to my core competency, which is the business aspect of it."

Cogdell says he agreed to represent Kahanek because she's innocent and because he has problems with the Enron Task Force's selection of individuals to charge in connection with the Enron debacle. In his view, the government should not have brought charges against Kahanek, and should have charged some others who were witnesses for the government during the Nigerian barge trial. Cogdell says his fee totaled less than $100,000.

PIECING IT ALL TOGETHER

Since Kahanek's indictment in September 2003, she had a lot of time on her hands. After she was indicted, Kahanek lost her job at Ernst & Young. Other than the time Kahanek spent on her master's of business administration degree at Rice University -- she graduated in May -- she worked on her defense.

Kahanek says she installed a 4-by-8-foot white board in her home office, brought in a copier, printer and fax machine, and began to spend eight to 10 hours a day reading discovery and culling the relevant information. She says she had to go through some documents eight to 10 times to begin to piece together what may have happened with the Nigerian barge deal.

"My thing was to leave no stone unturned," she says.

She started that process in November 2003 with two binders of "hot documents" provided by the government. She says she went through a million or more documents and e-mail records over the next six months, and by April or May of this year, Kahanek says she had pretty much organized the evidence. She pulled it together into eight to 10 trial binders that highlighted the key information about each potential witness and included tabs to key documents.

Cogdell says they spent hours in his office going though those binders, page by page.

"It was not an easy process," he notes.

Kahanek says that while she did the document work, a private investigator, Clark Dickenscheidt of Houston's CDI Investigations, did witness interviews. Dickenscheidt, chief investigator at CDI, says Kahanek was able to go through the evidence much faster than he or Cogdell could to identify crucial witnesses.

"The potential witness list was exhaustive. There were so many people who worked in that division at Enron ... it really came down to tracking down who was worth talking to," Dickenscheidt says.

He says Kahanek did a good job of keeping him, Cogdell and others at Cogdell's office on track.

"She would call me and point out things and bring things up. I would call her and call the attorneys on the case as well. It was real open communication with her," Dickenscheidt says.

Cogdell says his former partner in Cogdell & Goodling, Goodling, worked on the case with him, but they dissolved their partnership shortly before trial because of the Kahanek case. It wasn't over strategy or money, Cogdell says.

Goodling, now a solo practitioner, declines comment on the breakup of their firm.

Cogdell says it became clear that Kahanek knew little about the reality of the deal until she plowed through the discovery. It was a "little troubling" to him that Kahanek would have to keep her prior knowledge of the deal separate from what she learned about it during research, but he says she retained a very specific memory of what occurred when she was at Enron.

"She's very bright, obviously, and I kept trying to reinforce that she keep clearing her mind, keep that distinction," he says.

Cogdell says Kahanek's knowledge of the evidence in the case helped her on the witness stand when Assistant U.S. Attorney Kathryn Ruemmler cross-examined her. [See "This Isn't New York," below.]

"I worked with Dan for six years, and I've worked with other lawyers before that in many capacities, and [I've] never seen a client with that much base and knowledge in that kind of case," Goodling says.

Cogdell says he doesn't know if there was an oral agreement. "Our position is I don't know or don't care if there was an oral agreement. Kahanek's position is she didn't know if there was one," he says.

Cogdell says the process of studying the evidence was cathartic for Kahanek, and Kahanek says it may lead to her new career.

With the trial over, Kahanek now is planning for the future and says she is thinking of working as a consultant to other white-collar criminal defendants. She says she has plenty of options for a job, and has had numerous people leave messages on her home answering machine offering to talk to her about a job.

Goodling, for one, says that after observing Kahanek's work on her own case he would definitely hire her as a trial consultant.

THIS ISN'T NEW YORK

Editor's note: Sheila K. Kahanek's acquittal is the best evidence that her testimony in the Nigerian barge trial resonated with the jury. According to an e-mail message juror No. 5 sent to Kahanek's lawyer, Dan L. Cogdell, on Nov. 10 -- a week after the verdict in which Kahanek was the only one of six defendants to win acquittal -- the jury found Kahanek's testimony credible. Jurors also were favorably impressed with the courtroom performance of Texan Cogdell, compared to the New York lawyers who represented the four Merrill Lynch defendants, the juror wrote. Juror No. 5's Texas-proud e-mail follows, edited for length and style.



Dan,

It's finally over! The whole jury panel was relieved. I did not talk with the Enron Task Force, but some of the others did. I did want to give you a little feedback on our verdict. Sheila's part was the easiest of the six. We had one holdout, but they conceded after finding no hard evidence except for the government witnesses. They were not considered credible. We liked Sheila for her courage to get up on the stand and describe her part. It appeared that you did not over-coach her, and she came off as believable.

So, congratulations! You and Sheila left those NY lawyers choking in your dust. They probably scratched their heads over that one while telling everyone how stupid we are down here in Texas. I noticed the big boys want to change their trial location. DON'T MESS WITH TEXAS! . . .

Thanks for the law lesson.

Juror No. 5

Motion for Judicial Clemency-Sample

NOS 12,043; 12,044

STATE OF TEXAS IN THE DISTRICT COURT

VS. OF WASHINGTON COUNTY, TEXAS

RODNEY GLENN GRAY 21ST JUDICIAL DISTRICT


MOTION FOR JUDICIAL CLEMENCY

RODNEY GLENN GRAY, Defendant in the above-captioned cause of action, makes this, his Motion for judicial Clemency, and shows:

1. Facts.
On May 16, 1995, RODNEY GLENN GRAY was placed on probation for two (2) offenses resulting from the same set of facts. Defendant was placed on "Regualr Probation" in Cause No. 12, 044 for the State jail Felony of Delivery of Marijuana, and was placed on Deferred Adjudication Probation in Cause No. 12, 043 for the Second Degree Felony of Delivery of a Controlled Substance

2. Defendant Discharged From "Regular Probation" in Cause No. 12,044.
On July 22, 1997, RODNEY GLENN GRAY was released from "Regular Probation" in cause No. 12,044 after serving his entire two-year term of probation. A true and correct copy of the Order Discharging Defendant From Probation is attached hereto as Exhibit "A."

3. Defendant Released From Disabilities in Cause No. 12,044
The Order Discharging Defendant From Probation in Cause No. 12,044 states, in relevant part:

It is therefore, ORDERED, ADJUCGED AND DECREED by the Court that the judgment of conviction heretofore rendered herein on the 16th day of May A.D., 1995assessing the punishment of Rodney Glenn Gray at confinement in the Texas Department of Corrections for a period of two (2) years, but with sentence thereon suspended, be and the same is hereby set aside; that the original sentence imposed is amended and modified to conform to the probationary period satisfactorily completed by the defendant; and the indictment against such defendant is hereby dismissed, and the defendant be, and defendant is released from all penalties and disabilities resulting from the crime of offense of which defendant has been convicted, except that proof of said conviction shall be known to the Court should the defendant again be convicted of any criminal offense.

4. Defendant Discharged From Deferred Adjudication Probation in Cause No. 12,043.
On November 4, 2003, the Court signed and Order Discharging Defendant from Probation (Deferred) (Early) that dismissed RODNEY GLENN GRAY from probation after his having served eight years and five months of his original ten-year probationary term. A true and correct copy of the Order Discharging Defendant From Probation (Deferred) (Early) is attached hereto as Exhibit "B."

5. Defendant Released From Disabilities in Cause No. 12,043.
The Order Discharging Defendant From Probation in Cause No. 12,043 states, in relevant part:

It is therefore, ORDERED, ADJUDGED AND DECREED by the Court that the deferred proceedings and adjudication of Texas Code of Criminal Procedure Article 42.12 Section 3d(a) of 16th day of May 1995, assessing ten (10) years of probation is hereby set aside; that the original probation term imposed is amended and modified to conform to Texas Code of Criminal Procedure, Article 42.12, Section 3d(c); and the indictment against such defendant is hereby dismissed and the defendant be and is released from all penalties and disabilities resulting from the crime of offense of the defendant for which defendant was brought into court, except that proof of said probation period shall be known tot he Court should the defendant again be brought before the Court for any criminal offense.

6. Defendant Has Been Rehabilitated.
RODNEY GLENN GRAY would show the court that he has reformed, rehabilitated, and changed his life since committing the offenses that are the subject of the above-mentioned orders. In partial proof thereof, RODNEY GLENN GRAY attaches hereto Exhibits "C" through "U," and includes them as though recited herein verbatim.

7. "Judicial Clemency" is an Established Concept of Texas Jurisprudence in Accordance With Cuellar v. State.
A. First Type of Discharge.
There are two types of discharge from probation. The first type of discharge from probation is that which is required after a person who has been placed on probation has completed his entire term of probation and satisfactorily fulfilled all of the conditions of probation. In this situation, the judge shall discharge the probationer. This is the case in Cause No. 12,044, above. In some cases, such as in Cause No. 12,043, above, the court may terminate Defendant's probation early. In this first and most common type of discharge from probation, Defendant essentially "graduates" from probation. In this type of discharge, the Defendant has been convicted of a felony, even though he never went to prison, and even though for some purposes the conviction may not be "final."

B. Second Type of Discharge.
The second, less-common type of discharge is one giving rise to the concept of Judicial Clemency. Judicial Clemency has been recognized by the Court of Criminal Appeals, Cuellar v. State, 70 S.W.3d 815 (Tex.Crim.App. 2002). this type of discharge is not a matter of right, but is a matter of "Judicial Clemency" within the trial court's sole discretion. According to this theory, when a trial judge believes that a person on community supervision is completely rehabilitated and is ready to re-take his place as a law-abiding member of society, the trial judge may set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pled guilty. If a judge chooses to exercise his discretion to grant judicial Clemency, the defendant is free to walk away from the courtroom released from all penalties and disabilities resulting from the conviction. Although a person who successfully completes all the terms and conditions of community supervision must be discharged from community supervision, whether to dismiss the indictment and set aside the conviction is wholly within the discretion of the trial court.

8. Defendant Requests Judicial Clemency.
Since being released from probation, RODNEY GLENN GRAY has had difficulty overcoming the record of conviction reported in such sources as "backgroundchecks.com," a true and correct copy of which is attached hereto as Exhibit "V." Additionally, although RODNEY GLENN GRAY has obtained a Bachelor of Science degree from Texas A & M University at Kingsville in the subject of Kinesiology Education, he has had difficulty in obtaining a job as a result of his criminal record. specifically, and without limitation, RODNEY GLENN GRAY has obtained a job as a teacher, but was fired because of his criminal record; has obtained a job at Academy, but was fired after two weeks because of his criminal record; has applied for jobs with the Houston, Katy, Klein, and Alief Independant Scholl Districts, but was turned down because of his record; and has applied for, but been unable to secure, jobs with at least fifty (50) employers. The grant of Judicial Clemency from the court would enable RODNEY GLENN GRAY to obtain and maintain employment.

9. Prayer.
Wherefore, RODNEY GLENN GRAY requests the Court grant him judicial Clemency with respect tot he above-listed offenses. RODNEY GLENN GRAY prays for general relief.

Respectfully submitted,



CONRAD DAY
Attorney-at-law
18 W. Main
Bellville, Texas 77418-1440
Tel: (979) 865-9103
Fax: (979) 865-9104





By: _______________________________________
CONRAD DAY
State Bar No. 05607550
Attorney for RODNEY GLENN GRAY







Notice of Hearing

Notice is hereby given that a hearing will be held on the above and foregoing Motion for Judicial Clemency on the 20th day of February, 2007, at 9:00 A.M.


CERTIFICATE OF SERVICE

This is to certify that on February 16, 2007, a true and correct copy of the above and foregoing document was served on the District Attorney's Office, Washington County, Texas, by hand delivery.





___________________________________________
CONRAD DAY












NOS 12,043; 12,044

STATE OF TEXAS IN THE DISTRICT COURT

VS. OF WASHINGTON COUNTY, TEXAS

RODNEY GLENN GRAY 21ST JUDICIAL DISTRICT



ORDER GRANTING JUDICIAL CLEMENCY

On this 20th day of February, 2007, this Court considered the Motion for Judicial Clemency of Defendant, RODNEY GLENN GRAY. After having considered the evidence and argument of counsel, the Court is of the opinion that said Motion is good, and should be GRANTED.
The Court finds that RODNEY GLENN GRAY is completely rehabilitated and is ready to re-take his place as a law-abiding member of society. The Court further finds that RODNEY GLENN GRAY is entitled to an Order of Judicial Clemency in Cause No. 12,043 and in Cause No. 12,044. The Court further finds that such an order is in the best interest of society and in the best interest of RODNEY GLENN GRAY.

IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED that the judgment in Cause No. 12,043 be, and it is hereby , SET ASIDE.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the judgment in Cause No. 12,044 be, and it is hereby, SET ASIDE. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the plea of guilty in Cause No. 12,043 be, and it is hereby, SET ASIDE.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the plea of guilty in Cause No. 12,044 be, and it is hereby, SET ASIDE.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that all charges, accusations, complaints, and indictments in Cause No. 12,043 be, and they are, hereby DISMISSED.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that all charges, accusations, complaints, and indictments in Cause No. 12,044 be, and they are, hereby DISMISSED.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that RODNEY GLENN GRAY be, and he is hereby, hereafter RELEASED FROM ALL PENALTIES AND DISABILITES RESULTING FROM THE OFFENSES OR CRIMES OF WHICH HE HAS BEEN CONVICTED OR WHICH HE HAS PLED GUILTY IN CAUSE NO. 12,043.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that RODNEY GLENN GRAY be, and he is hereby, hereafter RELEASED FROM ALL PENALTIES AND DISABILITES RESULTING FROM THE OFFENSES OR CRIMES OF WHICH HE HAS BEEN CONVICTED OR TO WHICH HE HAS PLED GUILTY IN CAUSE NO. 12,044.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that RODNEY GLENN GRAY be, and he is hereby, GRANTED JUDICIAL CLEMENCY IN CAUSE NO. 12,043.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that RODNEY GLENN GRAY be, and he is hereby, GRANTED JUDICIAL CLEMENCY IN CAUSE NO. 12,044.



IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that RODNEY GLENN GRAY be, and he is hereby, FREE TO WALK AWAY FROM THE COURTROOM FRLEASED FROM ALL PENALTIES AND DISABILITIES RESULTING FROM THE CONVICTION IN CAUSE NO. 12,043.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that RODNEY GLENN GRAY be, and he is hereby, FREE TO WALK AWAY FROM THE COURTROOM RELEASED FROM ALL PENALTIES AND DISABILITES RESULTING FROM THE CONVICTION IN CAUSE NO. 12,044.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that any and all public or private criminal record reporting services, including, without limitation, backgroundchecks.com, be, and they are hereby, ORDERED to remove any and all indication that RODNEY GLENN GRAY has been convicted or, or suffers any disabilities from, having been arrested, charged, indicted for, or otherwise accused of the offenses underlying Washington County Cause No. 12, 043; The State of Texas vs. Rodney Glenn Gray; In the District Court of Washington County, Texas, 21st Judicial District; and/ or Cause No. 12,044; The State of Texas vs. Rodney Glenn Gray; In the District Court of Washington County, Texas, 21st Judicial District.



Signed on February _______, 2007








____________________________________________
JUDGE PRESIDING





David Finn

New Case-Texas Class C Expunctions

David Finn: This decision is bad news. Hopefully the legislature will change this so Clients do not have to wait for the statute of limitations to expire in order to get an expunction once a Class C case has been resolved via deferred adjudication. The statute needs to be amended.

It makes absolutely no sense that a person has to wait for the statute of limitations to run/expire to get an expunction when the person already successfully completed a term of deferred adjudication. Why? Because they can't be subsequently prosecuted for the same offense- it would violate the double jeopardy clause of the Texas and United States constitutions.

Judge David Finn


Expunction

Holding: A petitioner for expunction of a misdemeanor arrest record must wait for the expiration of the limitations period to seek expunction.

State of Texas v. Judy Beam, Texas Supreme Court, 06-0974, 6-1-2007.

FACTS: On June 20, 2005, authorities arrested Judy Beam and charged her with a misdemeanor offense. Pursuant to a plea agreement, authorities later dismissed the charge and granted her deferred adjudication on the lesser charge of disorderly conduct.
On Feb. 16, 2006, less than two years later, Beam filed a petition for expunction pursuant to Texas Code of Criminal Procedure Art. 55.01. The state contended that Beam was not entitled to expunction until two years after the date on which she allegedly committed the misdemeanor offense, because under Art. 12.02, the state has a two-year limitations period during which it may present an indictment or information. Therefore, according to the state, Beam cannot seek expunction before the two-year limitations period has expired on June 20,2007.
The trial court granted Beam's petition for expunction, and the state appealed. The 7th Court of Appeals affirmed the trial court's judgment, holding that paragraph (a)(2)(A) of Art. 55.01 does not apply "when the sought expunction involves a misdemeanor offense."
HOLDING: Reversed and rendered.
Beam sought expunction pursuant to Art. 55.01(a)(2) of the Code of Criminal Procedure, which provides in relevant part that: "A person who has been placed under a custodial or non-custodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if...an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and ... the limitations period expired before the date on which a petition for expunction was filed under Article 55.02."
Beam argued that, because the preceding paragraph limits its reach to felonies, the limitations requirement is also limited. The state disagreed, contending that the plain language of the statute required the expiration of limitations for both felonies and misdemeanors before expunction may be sought. The court agreed with the state.
Before 2001, the court stated, Art. 55.01(1)applied only to felonies, and there was no requirement that the limitations period expire before expunction could be sought. In 2001, however, the Legislature amended Art. 55.01(a) to provide that the limitations period for the underlying offense must expire before a petition for expunction may be filed.
The state asserted that the Legislature added this requirement so that courts would not order expungement of all records and files relating to a person's arrest if that person were still subject to prosecution for a crime arising out of the transaction for which the person was arrested.
The state argued the Art. 55.01(a)'s recent amendment supported the view the limitations requirement of Article 55.01(a)(2)(A)(i) applied to both felonies and misdemeanors. Thus, the court agreed with the state, disagreed with the 7th Court and held that the limitations requirement in Art. 55.01(a)(2)(A)(i) applied to both felonies and misdemeanors.
The court also stated that to the extent that some courts of appeals held otherwise, it disapproved those decisions.
In this case, the court stated, authorities arrested Beam and charged her with a misdemeanor offense, but they dismissed the charge pursuant to a plea agreement, and she received deferred adjudication on a lesser charge. Beam sought expunction pursuant to paragraph (a)(2). No felony indictment or information has yet been presented against Beam, the court stated, but the limitations period for the underlying offense has not expired. Therefore, Beam does not satisfy the requirements for filing an expunction petition under Art. 55.01(a)(2).
Even though, the court stated, "Beam was arrested for a misdemeanor offense, she must wait until the two-year limitation period expires on June 20, 2007, before she may seek expunction - assuming she meets article 55.01's remaining requirements, a question we do not reach."
OPINION: Jefferson, C.J., delivered the opinion of the court.