‚ÄúThe State asserts that the Legislature added this requirement so that courts would not order expungement [sic] (isn‚Äôt it ‚Äúexpunction‚Äù‚Äîthat‚Äôs what the code says) 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. ‚Äú

If you plead, say, a class-b theft down to a class-c and get deferred, then you can no longer be prosecuted for the offense, even if we discovered that the item was worth 10,000.00 and it would have been a felony.

The Beam opinion discusses a dismissal and a plea to a “lesser” charge, but not necessarily a lesser-included charge.

If, say, you’re charged with class-b possession of marijuana, and the state agrees to dismiss that charge and let you plead to paraphernalia and give you deferred, then, yes, you’re still subject to prosecution on the marijuana charge, and, yes, you’d have to wait for the statute to run before you can get it expunged.

If you had to wait for the S/L to run in the lesser-included scenario, when would it run, seeing as it was tolled as soon as the complaint or information was filed?

CCP 12.05(b) indicates that “[t]he time during the pendency of an indictment, information, or complaint shall not be computed in the period of limitation,” which means, of course, that the s/l is tolled.

CCP 12.05(c) defines “during the pendency” to mean the time period “beginning with the day the indictment, information or complaint is filed in a court of competent jurisdiction, and ending with the day such accusation is, by order of a trial court having jurisdiction thereof, determined to be invalid for any reason.”

If you interpret Beam to mean that you have to wait until the S/L runs before you can expunge a class-c deferred, then you could never expunge it because the S/L would have been tolled and would never run. Yet we know that 55.01 allows for the expunction of class-c deferred cases because it makes specific reference to it in 55.01(2)(B).

As for dismissals that do not jeopardy-bar further prosecution, the Beam opinion is nothing new. I’ve always thought, except for the lesser-included class-c variety, that you couldn’t get an expunction on even a misdemeanor until the statute has run. It makes sense that, if you’re still subject to prosecution, you shouldn’t be able to expunge it. I think the part of 55.01 that really makes that the case is 55.01(a)(2)(B), which says that, among other things, in order to be entitled to an expunction, the person must have been released from the charge, and the charge, if any, has not resulted in final conviction AND IS NO LONGER PENDING and there was no court ordered supervision under 42.12 for any offense other than a class c misdemeanor.

That’s the part that keeps you from expunging a misdemeanor where the s/l hasn’t run: If you’ve been arrested on the charge, it’s a pending charge until it has been resolved by some jeopardy-barring action or the s/l running.

I think that the state and the court intuitively knew that you can’t expunge a case that can still be prosecuted, but I think they didn’t realize that 55.01 already provided for that without concluding that 55.01(a)(2)(A)(i) wasn’t addressing the language the follows “or” in 55.01(a)(2)(A).