Expunction of Criminal Records in Texas

July 4, 2009

People who were arrested for a crime, but not convicted, may be able to clear their records through expunction or nondisclosure orders in Texas.

July 04, 2009 /24-7PressRelease/ -- Expunction of Criminal Records in Texas

Article provided by David E. Cook, Attorney at Law
Visit us at http://www.davidcooklaw.com

Many people are aware of the effect a criminal conviction can have on their lives and how it can impact everything from their ability to get a job or rent an apartment, to their ability to gain credit or to retain a professional license.

However, most people are unaware of how an arrest for a crime they are never convicted of can similarly affect their lives. This information can be accessed by potential employers, landlords and others running criminal background checks.

Arrest records also are public records and can be accessed by family, friends, colleagues and neighbors.

Expunction and nondisclosure orders are two options available under Texas law to give those wrongly arrested for a crime the opportunity to clear their records and prevent potentially damaging information from unfairly affecting their lives.

Expunction

In Texas, expunction is allowed in limited circumstances to remove information about an arrest for a felony or misdemeanor from the records of certain classes of people. Once the record is expunged, the individual can deny the arrest ever occurred and any information related to it is permanently deleted from his or her record.

Individuals who are eligible for expunction include:

- Those who were arrested for a crime, but never charged with one
- Those who had charges brought against them, but those charges were ultimately dismissed
- Those who were acquitted by the trial court or the Criminal Court of Appeals
- Those who received a pardon from the Governor of Texas or the US President
- Those who were the victim of identity theft (i.e. the person arrested for the crime provided another person's name and information to the police instead of their own)

Otherwise, qualified individuals for expunction who are ineligible include:

- Those who received a deferred adjudication (more commonly referred to as probation)
- Those who were acquitted of a crime that occurred as part of a "criminal episode" and either have charges pending against them for a different crime that occurred during that same episode or were convicted of a crime that occurred during that same episode

Statute of Limitations and Prior Convictions

In cases where felony charges were dismissed, the statute of limitations for the crime subject to the dismissal must have expired before a petition for an expunction order can be filed. For most felonies, the limitations period is three to ten or more years.

Also, the individual requesting the expunction order cannot have been convicted of a felony within five years of the arrest he or she is attempting to have expunged, whether or not the arrest is for a felony or misdemeanor.

Requesting an Expunction Order

To request an expunction, the individual (referred to as the "petitioner") must submit a petition to the district court that includes information about the offense he or she was charged with, when they were arrested, who arrested them and a list of all of the agencies and facilities that may retain a record or file about the arrest. These may include police stations, detention facilities, county or state prosecutors' offices and central state depositories, for example.

After receiving the petition, the court will schedule a hearing and send a notice of the hearing to all applicable agencies and facilities. These parties have the right to contest the expunction order during the hearing. If the petitioner meets all of the statutory requirements for expunction, the court will grant the order. Once the order is granted, any agencies or facilities with records or files regarding the expunged information are required to remove them.

Nondisclosure Orders

Those who are not eligible for expunction orders because they received deferred adjudication may be eligible for a nondisclosure order. Government Code §411.081 allows nondisclosure orders to be issued for those who:

- Successfully completed the deferred adjudication and
- Received a discharge and dismissal of the deferred adjudication

Unlike expunction, records subject to a nondisclosure order are not destroyed, but rather are inaccessible to certain private parties and are removed from public records. Government agencies and departments, however, still will be able to access the files and records.

Eligibility Requirements

In order to be eligible for a nondisclosure order, the individual requesting the order must meet several requirements in addition to successfully completing probation and receiving a discharge and dismissal from the court. The individual also must:

- Fulfill any waiting period required because of the nature of the offense
- Not have been convicted of any other offenses - except traffic offenses - or received any other deferred adjudications during the waiting period
- Not have been previously convicted of certain crimes or received previous deferred adjudication for certain crimes

Certain classes of misdemeanors require a 5 year waiting period from the time of discharge and dismissal before the individual may request a nondisclosure order. These misdemeanors include:

- Kidnapping and unlawful restraint
- Sexual offenses
- Assault offenses
- Offenses against the family
- Disorderly conduct
- Weapons offenses

If the individual was charged with any other misdemeanor, they generally are eligible to file for the nondisclosure order immediately after receiving the discharge and dismissal from the court.

If the petitioner's deferred adjudication resulted from a felony, there is a mandatory 10 year waiting period after the discharge and dismissal before filing for the order.

If the petitioner previously was convicted of certain crimes or received deferred adjudication for these crimes, they ineligible for a nondisclosure order. These crimes include:

- Sex offenses requiring sexual offender registration
- Aggravated kidnapping
- Murder, capital murder
- Injuring a child, elderly or disabled person
- Abandoning or endangering a child
- Violating a protective order
- Violating a magistrate's order
- Stalking
- Any offense involving family violence

What is the process?

If the court grants the order, then any information subject to the order is removed from public information databases and records. However, government agencies still will be able to access the information, including the police.

The petition for a nondisclosure order must be filed with the court that issued the deferred adjudication. The court will then hold a hearing to determine whether or not the person is qualified to receive the order "in the best interests of justice." This means that the court has the authority to deny the order if it finds justice will not be served by granting it.

Article provided by David E. Cook, Attorney at Law
Visit us at http://www.davidcooklaw.com

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