Nearly everyone, at some point, has made a mistake or has been in the wrong place at the wrong time resulting in some type of criminal charge or conviction. This could be anything from a traffic ticket conviction all the way up to a felony conviction. While most convictions cannot be removed from a person’s record, Texas law does allow individuals to permanently remove information about an arrest, charge or conviction from their permanent records in certain circumstances. This is called an expunction. Once a person’s record is expunged, all information is removed from the criminal record and that person can deny the incident ever occurred.
Records eligible for expunction include:
1. An arrest for a crime that was never charged;
2. A criminal charge that was ultimately dismissed;
3. Certain qualifying misdemeanor juvenile offenses;
4. Conviction of a minor for certain alcohol offenses;
5. Conviction for Failure to Attend School;
6. Arrest, charge or conviction on a person’s record due to identity theft by another individual that was actually arrested, charged or convicted of the crime;
7. Conviction for a crime that was later acquitted by the trial court or the Criminal Court of Appeals;
8. Conviction for a crime that was later pardoned by the Governor of Texas or the US President.
There is a fair amount of misunderstanding regarding expunctions by non-lawyer Texans. Most individuals with criminal records are not eligible for expunction. The Court will not grant an expunction to adults who have received deferred adjudication or probation or who have been convicted of a felony within five years of the arrest the person is seeking to have expunged. This is important for people to understand, because many times a criminal defendant is told that a deferred adjudication or other type of “pre-trial diversion” will result in the charge not being on the defendant’s record. This is not the case. A deferred adjudication or other type of pre-trial diversion means that the defendant will not receive a conviction for the charge, however the fact that the defendant was charged will still appear on the defendant’s record.
The Court will also not consider expunction if the offense is part of a “criminal episode” and the applicant for the expunction either has charges pending for a different crime that occurred during that same episode or the person was convicted of a crime that occurred during that same alleged episode.
Finally, a person cannot file a petition seeking expunction of a felony charge that has been dismissed if the statute of limitations for the crime subject to the dismissal has not yet expired. The statute of limitations is the amount of time that the state or county has to prosecute an action against a person after that person has been arrested for an offense. The statute of limitations is different depending on the crime, but most are at least three years.
In many instances, any record of a conviction for an offense that a person committed when that person was a minor can be expunged. A misdemeanor punishable by fine committed prior to the age of 17, an offense committed by a minor under the Alcoholic Beverage Code and a conviction for Failure to Attend School are all offenses that may be expunged. As in expunctions for an adult, the individual must follow certain procedures and meet specific criteria before the court will expunge the person’s record. For example a person cannot apply for an expunction for a juvenile record until after that person has reached a certain age. Additionally, a person cannot have had multiple convictions.
When a juvenile offender is convicted of an offense, the courts are sometimes required to give the child and the child’s parents information about the expunction process and how to apply for an expunction. Different procedures can apply to expunctions for juvenile offenses. Consequently, you should conduct additional research or consult an attorney before attempting to apply for an expunction of a juvenile record.
Applying and Obtaining an Expunction
Prior to beginning the process for expunction, you should review Chapter 55 of the Texas Code of Criminal Procedure and any other statutes that may apply to the offense you are attempting to have expunged. The first step in gaining an expunction is to file a Petition for Expunction with the district court requesting that the court grant an Order for Expunction. A basic form for both the Petition for Expunction and Order for Expunction are included at the end of this pamphlet. As with any legal proceeding, errors in following procedure can have serious consequences. Therefore, it is always advisable to seek the assistance of an attorney.
The person applying for the expunction, known as the Petitioner, will have to prepare and file the Petition or hire an attorney to do so. The Petition should include certain personal identifying information of the Petitioner, the offense charged, when the arrest occurred, when the alleged offense occurred, the name of the arresting agency and a list of all of the agencies or facilities that may have a record of the arrest. If the offense was charged, the Petition should also contain the cause number for the case, the name of the court, how the charge was resolved (i.e. dismissed, no billed by the grand jury or acquitted) and the date the charge was resolved. The Petition must be verified, meaning that you must have it notarized when it is signed. Finally, the Petition should contain a blank “notice of hearing” so that the court can set a hearing on the issue.
After completing the Petition, it will need to be filed with the proper court. Whether the Petition should be filed in municipal, county or district court will depend on the level of the offense. If the offense was charged, then the Petition will most likely need to be filed in the same Court that was assigned to the case when it was originally charged. After the petition is filed, the court will schedule a hearing and send notice of the hearing to all applicable agencies and facilities, known as Respondents. After the notice has been properly sent, the court will conduct a hearing to allow the Respondents an opportunity to contest the expunction. However, if the Petitioner meets all of the necessary requirements, the court will grant the expunction.
After the court grants the expunction, the Petitioner will need to present an Order for Expunction to the court for the judge’s signature. The court will likely expect the Petitioner to have an Order drafted and ready for the judge to sign at the hearing on the expunction. The signed Order must then be submitted to any and all agencies or organizations that may have records or files relating to the expunged offense. The records will then either be deleted or returned to the court clerk pursuant to the court’s Order for Expunction.
If expunction is not an option due to the nature of the offense, charge or conviction, it may be possible to obtain an Order for Nondisclosure. A nondisclosure order does not completely destroy all record of any offense, but will limit the accessibility of the records. Records subject to a nondisclosure order are removed from public record and cannot be released or accessed by certain private parties. However, the records will remain available to government agencies and will be admissible in certain court actions. Under the Government Code §411.081, a person who has successfully completed deferred adjudication and received a discharge and dismissal of the deferred adjudication may apply for a nondisclosure order. In addition to successful completion of probation or deferred adjudication, an individual must meet certain criteria in order to qualify for a Nondisclosure Order. For example, a person cannot apply for a nondisclosure order until after the statutory waiting period has passed. During that time, the applicant cannot have been convicted of any other offenses. The waiting time varies anywhere from 0 to 10 years depending on the offense. Individuals charged with family violence, a sex offense requiring registration, aggravated kidnapping, murder and some other specific types of offenses will likely not be able to obtain a Nondisclosure Order.
The process for obtaining an Order of Nondisclosure is substantially similar to obtaining an Order for Expunction. A petition must be filed with the court that was involved with the original offense. A hearing will be conducted after proper notice to the required parties and the court will determine, at that time, whether to grant the order. It should be noted that the court generally has more discretion to decide whether or not an Order for Nondisclosure should be granted than a judge would when an expunction is requested. The judge will deny the order if justice would not be served by granting the order.
No agency, system or person is perfect and mistakes can happen. Although the criminal justice system may be tough on offenders, the law tries to allow those mistakes to be remedied. Whether the error is made by the system or the offender, the law attempts to right wrongs and, when deserved, give second chances.
It is important for those with criminal records to understand their options and rights regarding the expunction and non-disclosure orders. The Moon Law Firm handles expunctions and non-disclosure order requests. If you are in need of these services, please contact us.