Anytime a person is arrested and booked into jail, a record is created. This record quickly proliferates to many databases and is easily accessible to the public. Many counties in the DFW and Houston areas have booking photos of each person arrested available online at no cost. Even if the case is ultimately dismissed, there is a finding of not guilty, or community supervision is successfully completed, the stigma of the arrest remains for all the public to see. Further, the reality is that the arrest record alone is often as harmful as being found guilty to many prospective employers. In Texas, there are two main avenues to limit the arrest and case record from public view: expunction and non-disclosure.
Expunction
An expunction is the complete erasure of the arrest and case record from government databases and downline reporting companies. In general, an expunction is available to a person under any one of the following circumstances:
- the person is found not guilty of the charge at trial
- the person is found guilty but later pardoned by the governor’s office
- the case is not filed and a specified time period has passed (depending on the level of the offense)
- the attorney representing the state agrees to it
- the case was dismissed because the person charged completed an approved program under the Government Code
- the case was dismissed because of mistake, false information or other similar reasoning indicating an absence of probable cause.
If a case falls under any of the above categories, the Court must grant an expunction if requested. Further, once the expunction is final, the person may legally deny the occurrence of the arrest and the existence of the expunction order unless they are questioned under oath in a criminal proceeding, in which case they may state that the matter has been expunged.
Texas also has in place expunction procedures available to victims of identity theft where someone has used their identity and created a criminal history.
Non-Disclosure
Non-disclosure is a partial erasure of the record. It prohibits the information from the public but allows law enforcement and many state agencies to have access to it. Nondisclosure is applicable to offenses where deferred adjudication community supervision (probation) was granted and the case was dismissed after successful completion of the deferred adjudication.
After the case is dismissed, there is a five-year wait on all felonies, and a two-year wait on some misdemeanors, during which time the person must not pick up any new convictions or probations, before a nondisclosure can be filed. Further, certain offenses, for example, cases involving family violence, kidnapping, stalking, or cases that require sex offender registration, are not eligible for non-disclosure.
Until 2015 all nondisclosure requests were discretionary with the court from which the case was heard. However, effective September 2015, if the case is the only deferred case the person has had, not including traffic offenses, and the community supervision is successfully completed, the judge must sign the Order for Nondisclosure. Otherwise, there is no right to a nondisclosure; instead, the court will conduct a “best interest of justice” analysis. If the District Attorney agrees, most judges will agree to the non-disclosure. If the District Attorney doesn’t agree, then it is up to the Petitioner to prove that it is in the “best interest of justice” to grant the nondisclosure.
Texas also enacted in 2015 a law allowing nondisclosure for first-time convictions where a defendant has successfully completed probation (but did not receive a deferred dismissal). This law excludes most alcohol-related offenses. These first-conviction nondisclosures also are determined under a “best interest of justice” analysis.
A person’s background check can be the difference between getting a job or not getting a job. It can affect many other things in one’s daily life. If you have been arrested for an offense and fall into one of the above categories, you should definitely take action to clear your record.
