By: Mark Diaz
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Can a Felony be Expunged in Texas?
If you have a felony arrest as part of your criminal record in Texas, it is likely you have already faced significant challenges due to your past. A felony arrest has numerous collateral consequences. For instance:
- You could be denied employment if a criminal background check reveals a past conviction, or if you are forced to disclose the matter on a job application.
- A felony may result in a suspension or revocation of any professional licenses you hold, which also affects your employment.
- You might be turned down for a mortgage, car loan, student loan, or other lines of credit since lenders often check or inquire about past criminal activity.
- Some landlords conduct criminal background checks or request information about previous convictions, so you could encounter hurdles when trying to lease an apartment.
Obviously, these collateral consequences can severely impact many aspects of your life, so you would certainly want to take advantage of any process that reduces the harsh ramifications. Fortunately, you may have options under the Texas statute on expunction. You may qualify to have your felony expunged under certain circumstances, essentially erasing the arrest and the residual effects of it from your criminal record. Alternatively, you might be eligible to have your criminal record non-disclosed or sealed, which means a previous felony would be hidden from the public, but may still be seen by law enforcement/governmental agencies.
Sometimes referred to as expungement, successfully navigating the expunction process means you get a fresh start after making a past mistake. However, the keys to success are meeting the eligibility requirements, filing the proper forms, and following other statutory and procedural rules established by Texas law. You are more likely to obtain a favorable result when you work with an expungement lawyer in Galveston who can guide you through the process. Because the initial question many people have is whether a felony can be expunged in Texas, here are a few things to know.
There are two basic eligibility rules on expunging a felony.
Removing a felony from your criminal record is an option only available to certain individuals, so you only qualify for an expunction if:
- You were arrested, but your case did not result in a conviction.
- If charges were not subsequently filed, were dismissed, or you were acquitted after a trial and never found guilty.
- There is no felony conviction on your criminal record, though arrest and other court records might remain. Note that if your conviction was overturned after an appeal, you would still qualify under this section, and you would also still be eligible for expunction if you were pardoned after being convicted.
The legal process for felony expunction in Texas is detailed and complex.
Any legal matter involves the preparation and filing of documents in court, and an expunction is no exception. You begin the case by filing a petition for expunction in the county where you were arrested. It is necessary to provide basic information about you, the offense, the sentence issued by the judge, and many other details. Upon filing your petition, the case will be filed into a district court within the county. After that happens, the court will then set a hearing date no earlier than 30 days from the date the petition was filed into the district court.
When your court date arrives, you will be called upon to prove why you are entitled to an expunction. Most of this information will be stated in your petition, but the judge may and likely will ask questions. There will be other parties present in court, and some of those parties may be present to contest the expunction. So, it is important to be prepared on how to dispute or counter the allegations the other parties may raise to the court. If a judge finds the other side compelling, these issues could affect whether your Texas petition for expunction is granted or denied.
You may have other options for sealing criminal records.
All is not lost if you do not qualify for expunction. You could be eligible for a process called a nondisclosure, in which you would not be required to disclose the felony on job applications, loan documents, leases, or applications for certain professional licenses. Still, information regarding your criminal past would show up on databases only accessible to law enforcement and/or governmental agencies.
Nondisclosures in Texas can be classified in one of two categories:
- Automatic Nondisclosure: If you were a first-time offender, arrested for a misdemeanor, and resolved the charges through deferred adjudication, you may be eligible. The key to this automatic nondisclosure is meeting all requirements of your probation and being successful on that probation. If so, at the completion of the probation, you may be eligible to automatically nondisclose the case without the necessity of filing a petition, paying the fees associated, etc.
- Regular Nondisclosure: For those that do not qualify for automatic nondisclosures, it is necessary to file a petition for nondisclosure in court. As with an expunction, other parties may be present during the hearing to contest the granting of the nondisclosure.
Keep in mind that Texas law prohibits a nondisclosure for certain types of crimes. You can never nondisclose a case where the underlying offense required you to register as a sex offender. Other offenses that could make you ineligible include:
- Various degrees of murder
- Aggravated kidnapping
- Causing injury to a child, an elderly person, or a disabled individual
- Abandoning or endangering a child
- Violations of bond conditions when the case involves family violence, sexual assault, sexual abuse, or stalking
There are strategies to consider at the pretrial stages of a felony case.
Even when your case is still pending at the trial level, you could benefit from some advance preparation. For instance, you might have good reason to believe that your case will end without being convicted. You would certainly like to qualify for expunction or nondisclosure if at all possible, so you would theoretically like to employ all available strategies to ensure eligibility.
One tactic would be to work out a plea bargain with the prosecutor. You might be able to work out an agreement for pleading to a lesser charge, such as a Class C misdemeanor, and you could request deferred adjudication. This same strategy could work to ensure you qualify for an expunction or nondisclosure.
You must comply with the minimum waiting period for expunction.
Timing can be a factor in expunction cases, and in those cases, you must allow the waiting period to expire before you can seek relief. The key date for starting the clock is the date of your arrest, and the following minimum waiting periods apply:
- For the expunction of a Class C misdemeanor, the waiting period is 180 from the arrest.
- There is a one-year waiting period for Class A and B misdemeanors.
- A felony carries a waiting period of three years before you can file a petition for expungement in these types of expunctions.
When it comes to petitioning for an order for nondisclosure, the minimum waiting period starts from the date of dismissal or discharge – not the date of arrest. For most Texas misdemeanors, you need to file your petition no earlier than two years after discharge. If you were charged with a felony, you may have to wait five years from the disposition date before you can ask the court for a nondisclosure.
There is no waiting period when you are seeking an automatic nondisclosure for first-time misdemeanors.
Retaining an experienced attorney increases your chances of success.
After reviewing this information on expunging a Texas felony arrest record, you can see the complexities of the process. Essential tasks go far beyond simply filling out a few forms and attaching documents. You may need to appear in court for a contested hearing, which is similar to a trial.
As such, it is wise to retain a criminal defense lawyer in Galveston for assistance. Your attorney will guide you and get crucial input as necessary and can tackle such matters as:
- Reviewing the trial court record, arrest documents, and other paperwork that impacts your expunction petition;
- Assessing your options for expunction, an automatic nondisclosure, and a petition for nondisclosure;
- Evaluating eligibility to expunge a felony arrest record;
- Preparing the petition for expunction or nondisclosure, along with supporting documentation to be submitted to the court for review;
- Appearing at a contested court hearing on your request for expungement or nondisclosure
Discuss Expunction with a Criminal Defense Lawyer in Galveston, TX
While this overview on expunging a felony may be useful, it should also convince you of the importance of retaining experienced legal counsel for assistance. You face an uphill battle if you do not have an attorney to help you navigate the complexities of the expunction process, since any errors or omissions have a significant impact on your future. Plus, you should also weigh your other options for post-conviction relief. You may qualify to seek an order for nondisclosure, which carries substantial benefits even if it does not completely eliminate a felony from your record.
To learn more about your expunction eligibility, please contact Criminal Defense Attorney Mark Diaz. You can set up a free consultation with a Galveston expungement attorney by calling (409) 515-6170. Once we learn more about the details of your case, we can advise you on whether you may be eligible and if so, what the next steps are in the process.
Mark Diaz & Associates is a Criminal Defense Law Firm in Galveston, Texas representing clients throughout Galveston, Chambers and Harris Counties including but not limited to Tiki Island, Jamaica Beach, Texas City, League City, Alvin, Algoa, Santa Fe, Hitchcock, La Marque, Bayou Vista, Bacliff, San Leon, Dickinson, Kemah, Bolivar Peninsula, Clear Lake Shores, and Friendswood.