Expunctions & Non-Disclosures in Texas

Imagine the following scenarios: 1) You hired an experienced criminal defense attorney who fought hard for your rights, obtaining a “not guilty” verdict. Even better, your criminal defense attorney was able to have the criminal charges against you dismissed entirely. Good news, right? Unfortunately, you may still end up dealing with the record of your arrest for a very long time to come. 2) Your seventeen-year old son is out partying after the prom with friends when he is arrested for Driving under the Influence as well as possession of marijuana. He receives probation for the DUI and a three-year deferred adjudication for the felony marijuana charge. Years later, this criminal blot on his record prevents him from getting a job he is well-qualified for, despite having a blemish-free record since that one mistake.

When a Single Bad Decision Can Change Your Life Forever


There are dozens more examples of good people who made a single bad decision, and end up paying for that mistake for years and years to come. In the past few years, the frequency of criminal background checks has literally exploded. Both potential employers and landlords are allowed to run a criminal background search. Further, you could find yourself unable to obtain a governmental student loan or a professional license due to your criminal record. Others can also access your criminal record, particularly through Internet avenues. This means practically anyone could end up with access to the record of your arrest.

Getting the Fresh Start You Deserve Unless you take specific action to avoid it, criminal arrest information and conviction information in the state of Texas can remain on your criminal record indefinitely. Having this record haunting you can hinder many aspects of your future. Even if your arrest or conviction took place many years ago, every detail may be available to the public, and the Internet has made the number of people who could have access to details of your private life truly staggering. The fact is, once your criminal case is resolved, you deserve a fresh start. Whether your charges were dropped or you were found not guilty, you are entitled to put that part of your life behind you and move on.


Expunctions vs. Non-Disclosures

There are two different avenues which can enable you to do just that; the one you choose depends on your particular situation. Whether non-disclosure or expunction is the best for you depends on many factors. Discussing your situation with your attorney is the best way to determine which process will work for you.


Obtaining a Non-Disclosure


Some deferred adjudication offenses may be sealed through a process known as non-disclosure. Deferred adjudication is a type of probation often given to first-time offenders. If you satisfactorily complete the mandated supervision period with no other offenses, the original charges will be dismissed, and there is no final conviction. If the terms are not satisfactorily completed, the state may file a motion to adjudicate, and a final conviction can be placed on your criminal record. Even when the deferred adjudication terms are satisfactorily completed, and the charges dismissed, the record of the arrest remains. Non-disclosure essentially seals your offense file. Only certain designated entities will then have access to your criminal history, including criminal justice agencies, school districts, public hospitals and state licensing boards.


Offenses Not Eligible for Non-Disclosure


Certain offenses are not eligible for non-disclosure, such as aggravated kidnapping, murder, injury to a child, stalking, any offense involving family violence and any offense which requires registration as a sex offender. If you received deferred adjudication for a felony offense, you must wait five years from the date of discharge of probation prior to filing a petition for non-disclosure. (This time period was recently shortened from ten years.) For the majority of misdemeanors, a petitioner is allowed to file immediately following completion of the terms of deferred adjudication. Other misdemeanors—assault, deadly conduct, unlawfully carrying a weapon and disorderly conduct—require a two-year waiting period. Any offense which requires a waiting period prohibits the petitioner from being convicted or placed on deferred adjudication for another offense during the interval.


The Process for Obtaining a Non-Disclosure


If you are eligible for a non-disclosure, you must file a petition in the same court where the original prosecution took place. The trial judge will determine whether non-disclosure is in the “best interests of justice,” making the procedure more subjective than an expunction as the trial judge can rule against the petitioner. If granted non-disclosure, you are then allowed to deny arrest and prosecution of the offense. This means when you are required to check a box on employment applications which asks whether you have ever been arrested or convicted of a criminal offense, you can legally check “no.” While expunction erases the records, non-disclosure seals the records—while allowing certain entities to access them.


Pursuing an Expunction


As stated, an expunction basically erases the criminal offense record. As with a successful non-disclosure, once an expunction is completed, you are allowed to legally deny having a criminal arrest or conviction in your past. Typically, expunctions occur when an arrest for a criminal offense occurs, but the charges are dismissed. If no indictment arises, you are required to meet the following requirements in order to be successful in your expunction petition:

 

• You were released with no final conviction or with deferred adjudication;

• You did not intentionally or knowingly flee after being released on bail;

• The prosecutor certifies your arrest records are no longer necessary;

• You had no felony conviction in the five years prior to the arrest in question;

• The charges were void based on false information or a mistake;

• If an indictment occurred, the statute of limitations must have expired, and

• The court must find the indictment was dismissed or quashed.

 

Another situation which could make you eligible for an expunction is if you were acquitted at trial. In the case of an acquittal, you will have an absolute right to expunction, and there is no filing fee if the petition is filed within 30 days of acquittal. Other instances when an expunction may be granted are when a person is a victim of identity theft, was acquitted by the Court of Criminal Appeals or was pardoned. A final criminal conviction in the state of Texas can never be expunged.


Frequently Asked Questions about Expunctions in Texas:


While the expunction statute is not particularly long, it is complex, attempting to create a broadly applicable set of rules which balances the interests of the person desiring a fresh start with the public’s right to information and the necessity of the State to preserve records for future use. There are a number of questions related to expunctions in the state of Texas, such as:

1) If I received multiple charges from a single arrest, can I have all of the charges expunged?

The answer to this question is essentially, “it depends.” While the First District Court of Appeals in Houston holds expunction orders may split up offenses, expunging only those meeting expunction requirements, the statute appears to focus on the arrest record rather than the specific offense. Your criminal defense attorney can best determine whether your particular jurisdiction allows partial expunction of your arrest.

 

2) What if I was found “Not Guilty By Reason of Insanity?”

The current insanity defense does not allow for an expunction, since it is not considered an acquittal, however a person who committed an offense prior to September 1, 2005 and was found not guilty by reason of insanity may be able to obtain an expunction as an acquittal.

 

3) What is an actual innocence expunction?

If you were granted relief from your charges on the grounds of actual innocence, the legislature created a new form of expunction which allows you to receive an immediate expunction. This immediate expunction is granted so long as the pardon or court order clearly indicates it was granted on the grounds of actual innocence.

 

4) What about juvenile offenses?

Most juvenile records of conviction can be expunged, however as with an adult expunction, certain procedures and specific criteria must be followed and met. An expunction for a juvenile offense cannot be applied for until the juvenile reaches a certain age, and those with multiple convictions are not eligible for expunction.

 

5) Are pre-trial diversions eligible for expunction?

In the past, a person who received a pre-trial diversion would, eventually, become eligible for expunction—after waiting out the statute of limitations. The Texas legislature amended the statute in 2009, allowing an immediate expunction to those who complete a pre-trial intervention program which is authorized under statute 76.011. However, some counties include a clause in their PDT contracts that require a waiting period. For example, Harris County requires a 2 year waiting period, unless the DAO agrees otherwise.

 

6) How long are the waiting periods?

Current expunction laws require you to wait a specific length of time prior to obtaining an expunction. The time periods are shorter than the statute of limitations for the specific crime, and vary depending on the class of crime committed. For a Class C misdemeanor, you must wait until 180 days after the date of your arrest. For a Class B or A misdemeanor, you must wait one year. If seeking an expunction for a felony, you must wait three years after the date of your arrest. If you choose to request an expunction based on the shorter waiting period as opposed to the statute of limitations, the prosecutor is allowed to retain your file. If you are not in favor if this, you may want to wait until the statute of limitations has run. In some situations, a DA may allow for an early filing of an expunction.

 

7) How long does it take once my expunction request is filed?

Generally speaking, it takes 2-3 months for the court to rule on your request. If the request is granted, the court orders city, state and federal agencies to destroy arrest records, which usually takes about four months, but can take as long as a year. It is strongly recommended that you discuss the particulars of your criminal record with an experienced Houston attorney who can clearly lay out your options and help you determine whether a non-disclosure petition or a request for expunction is right for you

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DISCLAIMER

DISCLAIMER: Statutes of Limitations limit the amount of time that an individual has to file a lawsuit, and not only vary from state to state, but also vary by cause of action. The information provided above and in the specific pages in this section is meant as a general guide, and is for informational purposes only. Each client’s case is unique, and the specific circumstances of any individual case can have significant bearing on the applicable statute of limitations. Any person who believes they may have a viable cause of action is strongly encouraged to consult with an attorney about the statute of limitations for his or her case. Attorney Andrew Sullo is licensed to practice law in Texas, and can prosecute cases that are part of a federal multi-district litigation. Andrew Sullo does not practice law in any other state, and is not certified by the Boards of Legal Specialization in any state. Not all states have board certifications. This information is not intended to solicit clients for matters outside of the State of Texas. Our firm is not accepting cases in any state where it would be impermissible for it to do so. Sullo & Sullo, LLP maintains its principal office in Houston, Texas.

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