Expunction — Moving on From Past Crimes in Texas

If you are charged with committing a crime in Texas, three things must be understood very quickly. First, obtaining an experienced attorney is paramount. A Texas criminal defense attorney can provide the necessary guidance through the legal system, detail the strong and weak points in your case (as well as the prosecution’s) and explain the legal implications of pleading to a particular charge compared to going to trial.

Second, understanding your legal rights is critical. Most people have no idea that they are under no legal obligation to help the police investigate their case, but they unwittingly incriminate themselves by trusting officers (or other detectives) to act in the accused’s best interests. People accused of crimes need to protect their rights and put forth their best criminal defense.

Third, if you are cleared of any charges against you, or you complete court-ordered deferment programs, any criminal record created during the process should be expunged.

Expunction in Texas, Generally

Expunction (also known as expungement) is the removal of a conviction or arrest record from a person’s criminal file. Under Chapter 55 of the Texas Code of Criminal Procedure, a defendant can petition the court to remove arrests that did not lead to a finding of guilt in a subsequent prosecution. Essentially, if criminal charges were dropped, the court (or jury) rendered a not guilty verdict or an appellate decision overturned a trial court conviction, all records relating to the prosecution could be destroyed.

Expunction is also available for those with class C misdemeanors. These are the most basic offenses under the Texas Criminal Code and are not punishable with a jail term. Fines of $500 or less are assessed. Class C misdemeanors include crimes such as disorderly conduct, criminal mischief or criminal trespass, texting elicit pictures of minors and various traffic violations.

If a defendant receives deferred adjudication, and completes all probation requirements, he or she may petition to have their record expunged. Many people who seek to clear their records fall into this category, as they want to avoid disqualification from certain jobs or security clearances. Minors cited for DUI may also want to be admitted to college and be eligible for certain scholarships. Expungement would be especially important in this regard.

If a criminal case is dismissed, an immediate expunction may be available. However, some records may remain if the statute of limitations for the crime has not run. Law enforcement agencies and prosecutors offices are allowed to keep the records of the defendant’s arrest until the statute of limitations for the particular crime has expired, even though an expunction request is granted by the court. As such, many defendants will prefer to wait until the statute of limitations has run because the expunction will be complete, with no records being available afterwards.

Non-Disclosure Orders

Defendants granted deferred adjudication for crimes other than class C misdemeanors cannot have their records expunged. However, their criminal records may be sealed through a non-disclosure order. Because they are a matter of public record, virtually anyone can access a person’s criminal records. A non-disclosure order prevents your records from being available to the public. Since they are not open to the public, information brokers and other entities that perform background checks may not access these records.

While an order of non-disclosure offers some protection, it does not allow a person to deny the arrest and subsequent prosecution of a previous crime. Only expunctions allow defendants this type of protection. However, there are some limited circumstances wherein it would be necessary to state that you previously had a case expunged, such as when you are a witness in a criminal proceeding or when answering questions posed by a federal investigator.

Also, law enforcement may still keep records of the proceeding, and they may be used in future prosecutions. State licensing agencies, such as medical and legal boards, may also access this information and use it for character and fitness determinations. Nevertheless, a non-disclosure order could be helpful in protecting sensitive information.

Indeed, people make mistakes in all stages of life; but particularly when they are young. In addition to feeling indestructible, they also believe that they will never get caught committing a crime. When they do, they invariably learn from the experience, pay their debt to society, and move on to live productive lives.

So in following the old adage “don’t judge a book by its cover,” people should not be judged by past faults. Unfortunately, many entities, including colleges, military recruiters and employers can be particularly sensitive about criminal records. Because of this, Texas law allows some criminal records to be expunged.

While this article should not be considered legal advice, an experienced Texas criminal defense attorney can answer further questions about the expunction process and specific terms of eligibility.

Practice Areas