When a person is arrested, a public record is made of that arrest. If the person is later charged with an offense, that record is also public, as is the status of that case and whether it is pending, probated or dismissed. Because the legislature recognized that these records create problems for people trying to get a job, rent an apartment or do other necessary tasks, and because it recognized that the government can make mistakes just as individuals can, Texas law allows narrow ways for people to clear their records after a period of time.
Expunctions are the ideal means to remove matters from the public record. All records of an expunged case are destroyed and by law the person obtaining the expunction is allowed to say that no arrest or charge ever occurred. However, expunctions are available only to those who qualify.
With only a few exceptions, if a criminal charge results in conviction, there is no method to remove that charge from a person’s record unless the charge is overturned on appeal or the person obtains a pardon from the governor. Convictions thus tend in normal circumstances to result in a permanent record. A DWI conviction, for example, will remain on a person’s records forever. The few expugnable convictions are particular misdemeanor juvenile convictions, convictions of minors for some alcohol offenses and convictions for failure to attend school.
If a criminal charge does not result in a conviction, but ends up being dismissed after the completion of Deferred Adjudication Probation, those records cannot be expunged. However, they may, under certain circumstance be sealed though a Non-Disclosure. This will be discussed in greater detail later.
If an arrest doesn’t ultimately result in a criminal charge, that arrest can be expunged, generally after the statute of limitations for the charge have run. If a criminal charge is ultimately dismissed for reasons other than completion of Deferred Adjudication Probation, those charges are often expungable.
An arrest or charge that has been dismissed generally is not expungable until the statute of limitations has run on that offense. The amount of time required for the statute of limitations to run depends on the offense charged.
In order for a person to qualify for an expugnable offense to be expunged, the person cannot have been convicted of a felony within five years of the arrest the expungement is sought for. Additionally, if the court determines that the arrest or charge sought to be expunged was part of a “criminal episode,” the court will not grant an expungement if the person was convicted of a different crime that occurred during that episode. A “criminal episode” means the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances:
- The offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or
- The offenses are the repeated commission of the same or similar offenses.
Certain specific charges have additional requirements in order for expungment to occur. Consult an attorney do determine whether a particular matter can be expunged.
The process for obtaining an expungment is as follows. First, a lawsuit must be initiated against against the state, by filing a Petition for Expungment in the court where the charge was filed. It is crucial that this document is correct, as a dismissal of such a Petition could have serious impacts on a person’s ability to obtain an expunction in the future. Once the Petition is filed, it is served on any necessary agencies, such as a District or County Attorney. Often, the DA will review the petition, and agree to the expunction. Typically when this occurs, the judge will grant the expunction without setting a court date. However, if the DA does not agree to the expunction, a hearing will be held. Both sides can then put on evidence, and the judge will determine whether to grant the petition or not. Once the petition is granted, an order signed by a judge must be presented to any agency or organization that has records of the arrest or charge, and those records must be destroyed.
As mentioned above, a charge that has been dismissed because a person completed Deferred Adjudication Probation may not be expunged. However, a person in this situation may, under certain circumstances, apply for a Non-Disclosure. Many offenses for which a person might complete Deferred Adjudication Probation are not eligible for non-disclosure. These include family violence offenses, certain sex offenses, and certain violent felonies. In order to qualify for a Non-Disclosure, Deferred Adjudication Probation must have been successfully completed, and a person must not have any additional convictions for a statutory waiting period which varies depending on the offense.
As with expunctions, non-disclosures require the filing of a petition, notice to the DA, and an opportunity for a hearing. A judge has more discretion with a non-disclosure than with an expunction, and may deny a petition if in his or her view, “justice would not be served” by granting it. Once a Non-Disclosure is granted, an order is sent to agencies with information about the charges demanding that the information be sealed. These records are then sealed from public view, but remain available for access by law enforcement, state licensing agencies and other officials. Consult an attorney if you are interested in clearing up your criminal record.