La. C.Cr.P. art. 983(L) provides for the use of the in forma pauperis (IFP) provisions to allow an individual not otherwise eligible for a fee waiver to file an expungement without paying the statutory filing fees up front. This paragraph inserts Articles 5181 to 5188 of the Code of Civil Procedure into the Code of Criminal Procedure, so all procedures, standards, and outcomes from the civil in forma pauperis laws apply in the expungement context. This is the most likely route to avoiding filing fees for pro bono clients.

This provision has been law since 2018, but with very little use to date, practitioners may need to assist clients and provide judicial education in obtaining IFPs before filing expungements. Advocates are strongly encouraged to work with their indigent expungement clients to expand access to courts and expungements through this provision. Knowing the immediate and positive impact increased availability of expungements will have on Louisiana’s economy and families, the legislature intended to provide access to more individuals who are eligible for expungements, and costs should never be a barrier to court access.

Because this manual addresses the procedure for IFP filing in greater detail elsewhere,1  this chapter will focus on special considerations when using IFP to obtain an expungement.

• 1For more detailed discussion of IFP procedures, see the chapter on In Forma Pauperis Filings.

If your client receives federal benefits or is making less than 125% of the Federal Poverty Income Guidelines, there is a statutory presumption in favor of granting the IFP.1  Additionally, if the person’s expenses are near to or exceed their income, they may also be IFP-eligible.2  Because of the high cost of expungements, a person’s IFP eligibility might also be based on the total number of expungements to which they are entitled. For example, a person may earn sufficient wages to pay all their monthly expenses with a little bit of savings and thus might not qualify for IFP status to expunge one offense, but might be able to qualify for IFP if that person had 6 records to expunge (for a total cost of $3300).

• 1La. C.C.P. art. 5183(B)(2).
• 2Benjamin v. Nat’l Super Markets, Inc., 351 So. 2d 138, 142 (La. 1977).

IFPs will require notarization and a third-party witness that knows the individual’s financial situation. Be careful when completing, or helping clients complete, these forms as they are sworn statements to the court regarding income and expenses. It is very helpful to include supporting documentation (such as pay stubs and award benefit letters) when filing.

IFPs can be filed and granted off-docket in many cases before the individual files the expungement, but each expungement will require its own IFP. Some courts may allow a duty judge to grant all IFPs, or each section/division may want to consider and grant the IFPs individually. Additionally, judges can do one of the following with their IFPs: 1) grant the IFP; 2) deny the IFP with written reasons; or 3) set the IFP for a hearing for more information. If the IFP is denied or if a hearing is set, be prepared to argue for the person’s eligibility. If granted, and while an expungement is pending, an “opposing” party, the clerk, or the court may traverse an IFP to determine if the client is still eligible for the fee waiver. For expungements, this means that the clerk, the court, LSP, the DA, or the sheriff could challenge the facts contained in an IFP application if a person’s financial situation changes. This likely will not happen during the 60 days an expungement is pending, but it is important to caution an expungement seeker that it may happen as a result of a new job or an increase in income while the expungement is pending.

When working with clients pursuing IFP, keep in mind that no one should be required to file their expungement until the IFP is granted because denial of the IFP could generate an eventual court debt that the person cannot afford. According to La. C.Cr.P. art. 983(C), the clerk must collect the filing fee at the time the expungement is filed, therefore it is critical to get the IFP granted prior to filing the expungement motion, unless the person has an alternative fee waiver or plans to pay the filing fees.

It is also critical for practitioners and their clients to ensure that an expungement does not generate a later court debt. Under La. C.C.P. art. 5186, “[i]f judgment is rendered in favor of the indigent party, the party against whom the judgment is rendered shall be condemned to pay all costs due . . . .” Because an expungement is different from civil litigation, practitioners and their clients should ensure that the record states that the Order for Expungement is a judgment in favor of the indigent client for the purposes of waiving all fees associated with the expungement. Costs do not need to be cast on any opposing party, but it should be clear that no agency or office can attempt to collect on any of the $550 after the order is granted.