By: Mark Diaz
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Can Felonies be Expunged in Texas?
Questions about whether you qualify for an expunction in Texas is important for those who have been arrested or convicted on felony charges. The answer to this question, unfortunately, is almost always not so black and white though. Whether you can clear a felony from your criminal record depends upon numerous variables under Texas law. Under the Texas statute on expunctions, the most important factors are the nature of the crime, how the charges were resolved, and the actions you take after your case concludes. When these factors work in your favor, an expunction enables you to avoid problems with background checks and being forced to disclose convictions.
Felonies can be expunged in Texas only under very limited circumstances. Errors and omissions can lead to denial even if you do qualify. Guidance from a Texas expunction attorney is crucial, though some background information is also useful.
Grounds for an Expunction in Texas
Clearing your criminal record is only available in limited situations, and you generally will not qualify if you were convicted of a felony. To illustrate how the expunction law works, here are a few key points:
- A conviction in general will almost always disqualify you for an expunction, whether by your entry of a guilty plea or finding of guilt by the court.
- If you were acquitted, you are almost always eligible to expunge your record. An acquittal means the judge or jury decided that the prosecution did not meet its burden of proof beyond a reasonable doubt, i.e., a not guilty verdict after a trial.
- You might also qualify for an expunction if the case against you was dismissed before going to trial. This may be the case where you were arrested by police, but the prosecutor later decided not to pursue criminal charges. The prosecution may have assessed the evidence, underlying facts, and legal concepts, and then determined that the case has serious flaws.
- The appellate process may also impact your eligibility for an expunction. An appeals court may overturn a conviction after a finding of guilty at the trial level. However, this rule does not apply when the appellate judges remand the case back to trial, instruct the trial court on correcting an error, or only reverse in part.
If you received a pardon from the Governor of Texas or the President of the United States after a conviction, you qualify to have the records expunged.
Exceptions to Expunction Laws in Texas
There are some important exceptions under the Texas expunction law; in other words, you CAN clear your record even when your case does not meet the grounds described above. One exception affects Class C Misdemeanor cases. If we enter a plea and are given what is referred to as a “one-day deferred probation” offer and successfully complete it, then you likely are eligible after a small waiting period.
Another exception is notable because it is a relatively new law, based upon the Texas constitutional carry legislation that became effective in September 2021. Under the current law, anyone over 21 years old can carry a handgun without a permit – so long as they are not prohibited from possessing a firearm and comply with other gun statutes. This measure effectively eliminated the crime of Unlawful Carrying Weapons (UCW) under these circumstances, so anyone convicted of the offense prior to September 2021 may be eligible to get the records expunged.
How an Expunction Impacts Your Future
If you qualify for expunction and meet all requirements for the process, the end result is a deletion of all records related to the arrest, charges, and conviction, if applicable. No private company or agency can access these documents, and public bodies must delete whatever records they have on you relating to the expunged charge. As such, the record of your arrest and/or conviction will not turn up when you are subjected to a background check for employment and other purposes. If you are asked about your criminal history, you are within your rights to state that you have not been arrested for the offense. That means, when asked specifically, the law allows you to deny the existence of the charge ever occurring.
Therefore, an expunction is an effective remedy for avoiding one of the most impactful, unexpected aspects of a criminal process: collateral consequences, which refer to the legal ramifications and disabilities that stem from having a criminal record. These implications follow you after your mere arrest, your sentence in prison, if applicable, probation conditions, payment of your fines, and restitution to any victims. Examples include:
- Being terminated from your job because of a criminal conviction
- Challenges with finding new employment
- Not being able to vote in elections or hold public office
- Having your business or professional license suspended or revoked by the Texas Department of Licensing and Regulation
- Getting suspended, expelled, or disqualified from attending school, college, or university
- Losing your Second Amendment right to possess firearms
- Being ineligible for financing opportunities and student loans
- Many others
Another collateral consequence could impact your family and rights as a parent, since courts may review your prior criminal record when making decisions about custody and visitation for minor children. Judges refer to the child’s best interests when determining these issues in a divorce or other family law case, opening the door to an argument about denying access to parents with convictions in their past.
Steps in the Texas Expunction Process
Though you may be eligible for an expunction, you will need to take steps to remove records related to the arrest. A Texas post-conviction relief attorney can help you initiate these first steps and rest assured, the attorneys at Mark Diaz & Associates know the ins and outs of this process from start to finish.
Other Post-Conviction Relief
While an expunction order is the most effective way to delete/clear your criminal record, you do have other options if you do not qualify for an expunction. One alternative that offers considerable benefits is requesting the court to issue a nondisclosure order. This process does not delete the records related to an arrest, charges, or a conviction, but it does limit access. In other words, while an expunction deletes the arrest record, an order of nondisclosure seals the arrest record from public view. Judges have more discretion with issuing nondisclosure orders as compared to expunction.
If successful with a nondisclosure petition, the documents are no longer public records and cannot be released by a government agency for most practical purposes. However, they still exist and may be used in certain legal proceedings.
A Texas Expunction Lawyer Will Help You Navigate the Process
This information sheds some light on the expunction eligibility process in Texas, but it may also lead to additional questions about your specific circumstances. For this reason, it is essential to discuss your situation with a Texas post-conviction relief attorney who can provide personalized advice.
At Mark Diaz & Associates, our team has extensive experience helping clients in Greater Houston and throughout Galveston County with an array of criminal law matters. We can explain expunction and other options for post-conviction relief, and our lawyers are prepared to assist with the process. Please contact criminal defense attorney Mark Diaz today by calling 409-515-6170. We can schedule a free consultation to review the facts and discuss how to move forward.