Expungement in Texas
Texas law allows you to remove certain information about an arrest or charge from their permanent records. This is known as expungement or expunction.
Everyone at some point has made a mistake or been at the wrong place resulting in trouble. That trouble could lead to being arrested or charged, and this reflects in your criminal record. Most convictions are difficult to remove from a person’s record. However, Texas law allows individuals to remove certain information about an arrest or charge from their permanent records in certain circumstances. This is known as expungement or expunction.
Texas expungement law allows expunction of criminal records which did not lead to a finding of guilt and certain class C misdemeanors when the defendant successfully completed deferred adjudication.
If you are found guilty or pleaded guilty, you are not eligible for expungement. You are also not eligible for expunction if your arrest relates to a probation violation warrant or if you abscond from the jurisdiction after being released on bond. However, it may be eligible for non-disclosure or record sealing in the following circumstances:
Juvenile offenses – Certain juvenile offenses qualify for expunction. These include misdemeanors punishable by a fine committed prior to the age of 17, offenses committed by minors under the alcoholic beverage code and convictions for failure to attend school under the educational code. Multiple convictions and insufficient age are some of the disqualifying factors for expunction.
A criminal charge that was ultimately dismissed
An arrest for a crime that was never charged
Conviction for a crime that was later pardoned by the governor of Texas or by the president of the United States
Arrest, charge or conviction on a person’s record due to identity theft by another individual who was actually arrested, charged or convicted of the crime.
Conviction of a crime that was later acquitted by the trial court or the court of criminal appeals.
Arrest of a person not charged if a case is not filed and there is no felony offense arising out of the same transaction for which the person was arrested
Arrest for a person that is never formally charged if the prosecuting attorney’s office certifies that the records and files are not needed for use in any criminal investigation or prosecution of another person
Not all individuals with the above records qualify for expunction.
Expunction of records by a close relative
A close relative of a diseased person is entitled to expunction if the court determines that the deceased person would have been entitled to one.
Expunction for cases never filed
If you are arrested but not charged by an indictment, information or complaint, you may file for an expunction before the expiration of the statute of limitations if the case is not presented within the applicable timeframe and there was no felony charge arising out of the same transaction.
The time frame for receiving an expunction is:
At least 180 days from the date of arrest for an offense punishable as a Class C misdemeanor.
At least 365 days from the date of arrest for an offense punishable as a Class A or B misdemeanor
At least three years have elapsed for an offense punishable as a felony
Expunction for acquittal
If you have been arrested for an offense, you are entitled to have all records expunged if you are acquitted by the trial court unless the acquittal arose out of a criminal episode and you were convicted of or you remain a subject to prosecution for at least one other offense occurring during the criminal period.
Acquittal on appeal or pardon
You are eligible for expunction if you have been convicted and subsequently acquitted or pardoned if the pardon or court order clearly indicated on its face that the pardon or order was based on the person’s actual innocence.
The court may not grant expunction if you have been convicted or you remain a subject to prosecution for at least one other offense occurring during the criminal episode.
A criminal episode simply means the commission of two or more offenses that are either, committed pursuant to the same, two or more transactions that constitute a common scheme or plan or the repeated commission of the same offense.
Any court presiding over a case on actual innocence must enter an order of expunction not later than the 30th day after it receives notice of the pardon.
Expunction on prosecuting attorney’s recommendation
An expunction based on the prosecutor’s recommendation is within the court’s discretion. The court may reject the recommendation and deny the expunction. You are eligible to this type of expunction if the office of the prosecuting attorney recommends the expunction to the court before you are tried for the offense.
In most cases, records of conviction for an offense a person has committed when that person is a minor can be expunged. However, the individual has to follow certain procedures and meet certain criterias before their record is expunged. For instance, you cannot apply for juvenile expunction record if you have reached a certain age or if you have had multiple convictions.
When a juvenile has committed an offense, the court is required at times to give the parents of the offender information about the expunction process and how to apply for one. Different procedures can apply for different offenses. Conduct some research or consult a professional defense attorney before applying for expunction of a juvenile record.
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Application and obtaining an expunction
After being arrested for wrong doing, your life shouldn’t stop. If you qualify, you can petition the court for expunction or expungement as provided in section 55 of the Texas law criminal procedure. You can apply for expunction yourself by simply completing and filing a petition before the court and wait for judgment from the judge.
However, it is always advisable to seek assistance from an attorney before applying for expunction. The first step the attorney will guide you through is filing a petition for expunction with the district court. Any errors in the procedure of this legal proceedings can have serious consequences.
The petitioner or the person applying for expunction has to prepare and file the petition or hire a professional attorney to do so. Your petition should include certain personal identifying information, the offense charged, the time of arrest, the name of the arresting agency and a list of all of the the facilities that may have a record of the arrest.
If the offense was charged, the petition should contain the cause number for the case, the name of the court, how the charge was resolved and the date the charge was resolved. The petition must be verified, in that it should be notarized when it is signed. It should also contain a blank notice of hearing so that the court can set a hearing on the issue.
After completing the petition, file it with the proper court. The court will thereafter schedule a hearing and send a notice of the hearing to all applicable agencies and facilities. After the notice has been properly sent to the respondents, the court conducts a hearing to give them an opportunity to contest the expunction. If you meet all the necessary requirements, you will be granted an expunction by the court.
You will be required to present an order for expunction to the court for the judge’s signature after being granted the expunction. The signed order must be submitted to all the organizations that have records or files relating to the expunged files. These records will be deleted or returned to the court clerk pursuant to the court’s order for expunction.
In some instances, expunction is not an option. This could be due to the nature of your case. Don’t lose hope, you may still be eligible for an Order of Nondisclosure which is sometimes referred to as ‘sealing your record’ in Texas.
When you are granted an expunction, all your criminal records are essentially destroyed and they become largely untraceable. With a nondisclosure order, your records still exist. Accessibility to such records is however limited for instance civilian employers can’t get to it. Criminal records subject to nondisclosure orders are normally removed from the public record and can’t be released or accessed by certain private parties. However, these records are still available to government agencies and are admissible in certain court actions.
Laws in Texas allow you to file a nondisclosure petition after fully completing deferred adjudication probation. For instance, you can’t apply for a nondisclosure order until after the statutory waiting period has passed. During that time, you can’t have been convicted of any other offense. The waiting time varies between 0 to 10 years depending on the type of offense. Being charged with offenses such as family violence, aggravated kidnapping, murder, sex offense requiring registration or some other specific type of offenses are likely to deny you a chance of obtaining a nondisclosure order.
In recent changes to Texas nondisclosure laws, you can be allowed to seal your criminal history even with conviction. First time Driving With Influence (DWI) offenders may request nondisclosure of their DWI conviction if they have no other criminal history.
If you were a minor when being convicted of a crime, your chances are higher for having your record sealed. Judges tend to be more lenient towards minors in a court of law.
The process of obtaining a nondisclosure order is similar to that of obtaining an order for expunction. A petition needs to be filed with the court that was involved with the original offense. A hearing is conducted after proper notice to the required respondents or parties and the court thereafter determines whether to grant that order or not.
Generally, the court has more discretion to decide whether or not an Order for Nondisclosure should be granted than a judge would when expunction is requested. The judge could deny that order if justice would not be served by granting that order.
The legal process involved in expunction and nondisclosure in Texas takes less time. However, calculating your waiting period is a technical process and can be tricky even for experienced attorneys. For example, if you have been charged with a Driving While Intoxicated offense, you will have to wait for either two to five years for you to request a seal on the record. Regardless of whether or not you have done probation with a deep lung breath test device for at least six months.
A hearing appointment is usually 30 days after a request or even longer. If you have been granted your petition, respondents can take upto 12 months to have the records destroyed but must be quicker to seal them. If you need an expunction sealed faster, let your lawyer know.
An expunction takes 60 to 90 days for criminal records to disappear in background checks. Non Disclosure orders on the other hand are almost immediate, however, some private companies may not update their records without specifically being informed of the order.
Expunction or nondisclosure orders are required to better search for job opportunities, housing opportunities, education opportunities, get married or to repair credit. The sooner you begin the legal process, the better chance you have of getting on with your life.
People grow and change over time. Past mistakes should not be held against you. Many people have been arrested at one time and have changed greatly after facing charges. Expungement is one sure way to get your life back on track and restore justice for wrongs done in the past.
Call an experienced Texas expunction lawyer today and set up a confidential consultation. A phone call is always the first step towards your future free from criminal records. Discuss your options for clearing your name. The laws concerning expungement and nondisclosure orders in Texas are complex so always allow your attorney to take the lead.
Expenses for expunction vary depending on the lawyer or the law firm in question. Generally, your Texas expunction costs should be between $1000 and $2500.
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