Opinion No.

The Honorable Mary Anne Salmon State Representative 29 Heritage Park Circle North Little Rock, Arkansas 72216-8568

Dear Representative Salmon:

I am writing in response to your request, on behalf of a constituent, for an opinion regarding the guidelines that apply to the expungement of criminal records. You have attached a memorandum from your constituent, noting that in August 2001, a motion to expunge a record was filed in the North Little Rock District Court. The District Judge reportedly sent a letter stating that he did not have authority to expunge the record. Your constituent poses the following four questions:

1. If the original trial judge does not have the authority to expunge a record, who does?

2. What specific state statute or court rule grants this authority?

3. Is there a statute of limitation and/or time limit in which such request for a record to be expunged must be filed?

4. What specific state statute or court rule provides the statute of limitations and/or time limit?

RESPONSE

You questions appear to be general in nature, and not intricately related to the facts of the particular case your constituent references. I must note that it is my staunch policy to decline to issue opinions on matters that are the subject of pending litigation. It is also my policy to decline to question or second-guess judgments rendered by courts. The applicable remedy in the particular North Little Rock case to which your constituent refers is to appeal to a higher court in the judicial branch, if possible. That being said, however, I can provide some general legal information in response to the questions you pose. A judge's authority to expunge a criminal conviction is strictly defined by statute. In order to be eligible to receive an expungement, a defendant must have been sentenced under one of the particular statutes that provide for expungement. Various state statutes have, over the years, granted this option. If the sentence is not an eligible one, the judge does not have the authority to enter an expungement, and in response to the first question posed, no one else does either. Finally, there is, to my knowledge, no time limit for filing a petition for expungement on a eligible sentence.

Question 1 — If the original trial judge does not have the authority toexpunge a record, who does?

No one. Trial judges do not have the authority to expunge sentences where the defendant was not sentenced under one of the statutes that specifically provides for expunging the record. See Shelton v. State,44 Ark. App. 156, 870 S.W.2d 398 (1994). See also Fulmer v. State,337 Ark. 177, 987 S.W.2d 700 (1999). See also Op. Att'y Gen. 95-132 (copy enclosed).

Question 2 — What specific state statute or court rule grants thisauthority?

Various statutes over the years have provided for the opportunity for an expungement for certain offenses. The most often-cited is Act 346 of 1975, the so-called "First Offender Act," codified at A.C.A. §§ 16-93-301 to -305 (Supp. 2001. Another more recent statute is A.C.A. § 16-93-1207 (Supp. 2001), which entitles certain persons sentenced for targeted offenses to an expungement, depending upon their age and previous conviction record. See Fulmer, supra. Other statutes include A.C.A. §16-90-601 (Supp. 2001); A.C.A. § 5-64-407 (for certain drug offenses); A.C.A. § 9-27-309 (Supp. 2001) (for certain juvenile offenders) and A.C.A. § 5-4-311. The procedure to obtain most expungements in now codified at A.C.A. §§ 16-90-901 to -906 (Supp. 2001).

Question 3 — Is there a statute of limitation and/or time limit in whichsuch request for a record to be expunged must be filed?

I am not aware of any such restriction. No time limitation is contained in A.C.A. §§ 16-90-901 to -906 (Supp. 2001).

Question 4 — What specific state statute or court rule provides thestatute of limitations and/or time limit?

It is not necessary to answer this question in light of my response to Question 3.

Senior Assistant Attorney General Elana C. Wills prepared the foregoing opinion, which I hereby approve.

Sincerely,

MARK PRYOR Attorney General

MP:ECW/cyh

Enclosure