Receiving an Expunction After a Pardon in Texas

Ex Parte Hernandez
Court of Appeals of Texas, Eastland
April 7, 2005

Holding: A petitioner who has been pardoned for reasons other than upon his guilt or innocence is still entitled to expunction under Texas Code of Criminal Procedure Article 55.01.

Why This Case is Important: A petitioner may successfully expunge his criminal record if he was convicted but subsequently pardoned for that offense. A pardon can either be based upon the petitioner’s guilt or innocence, or by a decree from the governor that restored the petitioner’s civil rights of citizenship. A petitioner therefore has multiple methods of approach available to him for an expungement based on a pardon. This is because the courts have recognized that the langue of Article 55.01 make no differentiation as to what type of pardon the petitioner receives. Therefore whether it is a pardon based on guilt or innocence, or a proclamation that restores the petitioner’s civil right of citizenship, a petitioner shall be granted expungement of his criminal records.

It is important to note that a pardon need not necessarily mention the word “pardon.” A petitioner may be eligible if he receives an act of clemency by a governing body that exempts him from his punishment and restores his civil rights, such as what occurred in this case.

Facts of This Case: The petitioner in this case was convicted of burglary and murder without malice. The petitioner was discharged of his crimes in 1973, and filed for expunction under Article 55.01 based upon a 1987 proclamation that was issued by Texas Governor Bill Clements, which restored the petitioner’s full civil rights of citizenship. The trial court denied this petition alleging that the pardon was not base upon the petitioner’s guilt or innocence.

The Texas court of appeals reversed the trial court’s decision. The court of appeals first determined that the proclamation by the Governor, although not mentioning the word pardon, was a pardon that qualified the petitioner under Article 55.01. The court of appeals determined this by comparing the proclamation to the definition of a pardon. The court of appeals defined a pardon as an act that exempt the individual from the punishment granted to him, and resorted his civil rights of citizenship. Because the proclamation restored the petitioner’s civil rights of citizenship, the court of appeals determined that the proclamation was a pardon.

The court of appeals then held that Article 55.01 did not differentiate between a pardon based on guilt and a pardon that the petitioner received. The court of appeals concluded that so long as the petitioner was pardoned from his conviction, then he has satisfied his burden, and should be granted his request.

The court of appeals thereby reversed the trial court’s decision and ordered expungement of his arrest records.

Key Language: The language of Article 55.01 does not distinguish between different kinds of pardons.

Expert Advise: “This case establishes the authority for enforcing expungement based on a pardon by a governing body, even if the word pardon is never actually used. Once pardoned, a petitioner will have met his burden of proof, making him entitled to expunction under Article 55.01.” Attorney Mathew Higbee

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