PLAN AHEAD IN CASE YOU ACTUALLY GRADUATE

Expungement

by Mike McNamara - Island Lawyer

Every year at this time I receive plaintive messages from Spring Breakers or frantic phone calls from their parents. "Can my Public Intoxication conviction be expunged so my record is clean?" or "Can my simple Assault conviction be expunged?" or "I was convicted of Criminal Trespass. Can this be expunged?"

The answer of course is no. Convictions cannot be expunged. Most students who "get caught" on South Padre Island are charged with and convicted of Class “C” Misdemeanors. These include Assault, Criminal Trespass, Disorderly Conduct, DUI by a Minor, Failure to Identify, Minor In Possession of Alcohol or Tobacco, Possession of Alcoholic Beverage in Motor Vehicle, Public Intoxication and Theft of property with a value of less than $20.00. There are more but these are the most common offenses during Spring Break.

Ordinarily when a student is arrested for any of these offenses he either pays the fine immediately just so he can get back to the party or he posts a bond for the same reason. The student who pays the fine is convicted. The student who mails the fine in is convicted. These convictions remain in Town records and cannot be expunged.

Deferred Adjudication

Deferred Adjudication means that even though the youth pleads guilty or no contest to the charge he will not be convicted. The judge can defer a finding of guilt for a period of time - usually 90 days. If there are no further criminal referrals within that period of time the charge is dismissed and the student has no convictions. It is not necessary to have a lawyer to do this.

Of course the judge can refuse to defer a finding of guilt and convict you and that is the time to consult a lawyer. The conviction can be appealed but must be done within 10 days of the finding of guilt and taken up to the next level which is the County Court at Law. Everything that happened in the municipal court is erased and the charge is heard as if for the first time in this court. You deal with an assistant district attorney who will in almost all cases give a plea bargain which includes deferred adjudication. The only difference is the court costs run about $250.00 in County Court at Law whereas in the municipal court they are only around $40.00.

How Do I Get Deferred Adjudication?

You ask for it. If you go before the judge and plead guilty or no contest at that time you request deferred adjudication. If you mail your fine in enclose it with a letter requesting deferred adjudication. If you pay your fine without seeing the judge enclose it with a request for deferred adjudication. Make sure to call the municipal court on your appearance day and ask if you received deferred adjudication or if you were convicted.

What To Do If Convicted

Talk to a lawyer right away. You must insure that you can perfect your appeal to County Court at Law before the expiration of 10 days from your conviction. On the other hand, these are Class “C” Misdemeanors we are talking about and I have never heard of anyone being denied any application with a conviction of a Class “C” Misdemeanor on his record. But if you want to expunge the convictions you must appeal and seek Deferred Adjudication at the next level.

Court Appearances After Appeal

It is not necessary for a defendant to appear in court for Class “C” Misdemeanors if he has a lawyer. The lawyer can handle the entire matter without the necessity of the defendant making any court appearances. Of course the lawyer will have to make several appearances to dispose of the matter and the attorney fees will reflect the time required to obtain the desired result. It would be best to consult several attorneys immediately to be sure of what you will be paying in attorney fees for this procedure. Remember you only have 10 days to perfect an appeal so you must start immediately after learning of your conviction.

Be Alert

Of course if you can avoid arrest you are way ahead of the game.