An expungement proceeding is a type of lawsuit in which a first-time offender convicted of a criminal act seeks that the records of that earlier conviction process be sealed, thereby making the records unavailable through the state or federal repositories. If successful, the records are said to be “expunged.” Black’s Law Dictionary defines “expungement of record” as the “Process by which record of criminal conviction is destroyed or sealed from the state or federal repository.” While expungement deals with an underlying criminal record, it is a civil action in which the subject is the petitioner or plaintiff asking a court to declare that the records be expunged.
A very real distinction exists between an expungement and a pardon. When an expungement is granted, the person whose record is expunged may, for most purposes, treat the event as if it never occurred. Rather, it constitutes forgiveness. In the United States, an expungement can be granted only by a judge, while a pardon can be granted only by a governor (for state law offenses) or the president (for federal offenses).
Each jurisdiction whose law allows expungement has its own definitions of expungement proceedings. Generally, expungement is the process to “remove from general review” the records pertaining to a case. In many jurisdictions, however, the records may not completely “disappear” and may still be available to law enforcement, sentencing judges on subsequent offenses and corrections facilities to which the individual may be sentenced on subsequent conviction.
Who can get a court record expunged?
Eligibility for an expungement of an arrest, investigation, detention or conviction record will be based on the law of the jurisdiction in which the record was made. Ordinarily, only the subject of the record may ask that the record be expunged. Often, the subject must meet a number of conditions before the request will be considered. Some jurisdictions allow expungement for the deceased.
Requirements often include one or more of the following:
- Fulfilling a waiting period between the incident and expungement;
- Having no intervening incidents;
- Having no more than a specified number of prior incidents;
- That the conviction be of a nature not considered to be too serious;
- That all terms of the sentence be completely fulfilled;
- That no proceedings be pending;
- That the incident was disposed without a conviction; or
- That the petitioner completed probation without any incidents.
Types of convictions that are often not eligible for expungement include:
- Felonies and first-degree misdemeanors in which the victim is under 18 years of age
- Sexual battery
- Corruption of a minor
- Sexual imposition
- Obscenity or pornography involving a minor
In some jurisdictions, all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person’s detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system can be expunged. Each state sets its own guidelines for what records can be expunged or for whether expungements are available at all. The petitioner requesting an expungement of all or part of their record will have to complete forms and instructions to submit to the appropriate authority. The petitioner may choose to hire an attorney to guide them through the process, or he or she can decide to represent themselves. This is called appearing pro se.
Most jurisdictions have laws that allow, or possibly even require, the expungement of juvenile records once the juvenile reaches a certain age. In some cases, the records are destroyed; sometimes they simply are “sealed.” The purpose of these laws is to allow a minor who was accused of criminal acts or, in the language of many juvenile courts, “delinquent acts” to erase his or her record, typically at the age of 17 or 18. The idea is to allow the juvenile offender to enter adulthood with a “clean slate,” shielding him or her from the negative effects of having a criminal record.
Texas expungement law allows expungement of arrests that did not lead to a finding of guilt and class C misdemeanors if the defendant received deferred adjudication and completed community supervision. The release, dissemination or use of expunged records by any agency is prohibited. Unless being questioned under oath, the defendant may deny the occurrence of the arrest and expungement order. If the defendant was found guilty, pled guilty or pled no contest to any offense other than a class C misdemeanor, the record is not eligible for expungement. However, it may be eligible for nondisclosure if deferred adjudication was granted. If the person who has had a record expunged is applying for enlistment into the armed services, the charge must be revealed or the person shall be disqualified from enlistment and may be liable for criminal action for fraudulent enlistment if the charge is not revealed.