By: Mark Diaz
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How Difficult Is Expungement In Texas?
If you were arrested and/or convicted on Texas criminal charges, served your sentence through incarceration, and paid all related fines and restitution, you probably think the criminal process is over. In truth, even though you paid your debt to society, there may be lingering implications for your life. For instance, a criminal conviction or arrest may:
- Make it difficult to find a job and/or housing
- Revoke or suspend your driving privileges
- Lead to a suspension or revocation of any professional license you hold
- Restrict you from exercising child custody or visitation rights
- Impact your ability to get a mortgage, car loan, student loan, or line of credit
- Affect your Second Amendment rights to bear arms.
The primary issue with arrests specifically (even if you successfully beat the charge) is that they will appear on a criminal background check, along with the fact that the records can be drawn into other administrative and legal matters. Because of these ramifications, Texas enacted a statute on expunctions – sometimes called expungement. By going through the legal process, qualifying individuals can erase all details regarding a criminal conviction.
However, there is more to clearing your criminal record than filling out a few forms. Not only must you meet the strict qualifying criteria, but you need to determine which type of expunction suits your situation. It is also wise to consider other options for concealing an arrest record if you do not qualify. The numerous legal factors and rules are the reason many people in your position will retain La Marque criminal defense lawyers for assistance. Some background information will demonstrate how difficult it is to go through the expunction process in Texas.
Determining Eligibility For Expungement
Generally speaking, almost all criminal convictions cannot be expunged from a person’s record. However, if there was no conviction, but a person was arrested, then there may be options available to you, but you must meet certain criteria that requires strict compliance. An expunction granted by a judge can make details about an arrest, charge, or conviction unavailable for most purposes, and you can legally deny that the incident occurred.
The key for an expunction is eligibility, and you will typically NOT qualify if you have a conviction for any offense other than a Class C Misdemeanor. You are also not eligible when the arrest was connected to a probation violation or fleeing the jurisdiction while released on bond. The only criminal matters that may be expunged include:
- An arrest, when the person was never charged with a crime
- Criminal charges that were dismissed
- Some juvenile records for misdemeanor offenses
- An alcohol offense by a minor
- A conviction for truancy
- Any arrest, charge, or conviction that was the result of identity theft
- A conviction that was reversed, overturned, or acquitted on appeal
- Convictions that were later pardoned by the Texas governor or U.S. president.
Know What Type of Expunction Applies to Your Case
Assuming you are eligible based upon the above criteria, you must then assess the form of expunction. There are certain types that are available, and the requirements may vary according to the details of your case. A La Marque criminal defense lawyer can explain the following:
- Expunction after acquittal, in which you can eliminate all records related to the arrest unless there are associated charges from the same offense
- Expunction for charges never filed, a process that imposes a deadline of 180 days to 3 years from the date of arrest – depending on the charges
- Juvenile offense expunction when the individual reaches a certain age, so long as they did not have multiple convictions
- Expunging records after an appeal or pardon
- Removing records based upon the prosecuting attorney’s recommendation to the court, though the final decision on expunction is within the discretion of the court
Overview of the Application Process For Expungement In Texas
Much of the work involved with expunction occurs through paperwork, along with some courtroom involvement. Every case is different, and the details will depend upon eligibility and the type of expunction that applies. As a summary, the following steps will typically be required:
1. Petition for Expunction
You initiate the legal process by filing a petition for expunction asking the Court to expunge your arrest record, which includes the basics about your case. Assistance from a lawyer is not required, but it is certainly encouraged. An attorney can help you to prepare the proper documents in filing the petition and they will also assist in the remainder of the process too when it comes to court appearances, discussing the case with the State, and/or the court. The petition must include such details as:
- Your personal identifying information
- The location and date of the offense and arrest
- The arresting agency
- A list of all government bodies that may possess records of the arrest
- The charges and case number
- Name of the court
- How and when the case was resolved
2. File the Petition
You must submit the petition for expunction and supporting documentation to the proper court, typically in a district court in the jurisdiction where the arrest record exists in which you seek to expunge. The clerk will schedule a hearing and send notice to all necessary agencies, known as respondents. These agencies and facilities will have a chance to respond to the petition, at times by contesting the expunction.
3. Prepare the Order for Expunction
The court will likely grant your petition if all requirements are met, but you must still have the judge’s signature on the order approving the expunction for it to be valid. This order is the proof you need to remove all records related to a criminal matter, so you must follow up by forwarding the document to all agencies that have information in their possession. Failure to notify an agency means your records will remain on file, so mistakes can harm your rights.
If your criminal case was a federal proceeding before a U.S. court, you should note that there is no specific statute covering an expunction of records. There is, however, case precedent that establishes federal authority to expunge information when an arrest or conviction was invalid or due to a clerical error. Conversely, there is one federal statute that provides a process that is similar to an expunction for first-time drug offenders charged with a misdemeanor. Under this federal law, you may be able to remove records related to the arrest if:
- The charge was misdemeanor possession of a controlled substance
- The court imposed probation before entry of the judgment
- You met the terms of probation, leading the judge to dismiss the case without entry of judgment and no conviction resulting
- You were under 21 years old at the time of the crime
If you do not qualify for an expunction, you may be eligible for a process that carries similar benefits. A nondisclosure order may be an option when you cannot obtain an expunction due to the offense, the charges against you, or the fact that a plea was entered. It is wise to consult with a La Marque criminal defense attorney regarding the details of the nondisclosure process, but keep in mind a few important points:
- Nondisclosure orders do not erase the records related to a criminal matter, but it does enable you to limit access to this information.
- All details that are subject to a nondisclosure order are no longer public records, and they cannot be released by government agencies. Likewise, the information cannot be accessed by private parties, such as an employer or lending institution.
- A nondisclosure order does not prevent access by government agencies, and the information can be used in some court proceedings.
- If your case resulted in deferred adjudication, you met all requirements imposed by the court, and the judge dismissed the case, you can petition for a nondisclosure order if you qualify under Texas law. There is generally a waiting period set by statute, and this time must elapse before you can file your petition. The details depend on the offense, but the waiting period could be up to 10 years.
- The process of nondisclosure is similar to an expunction, so you will be required to complete the necessary petition and file all paperwork with the court. There will be a hearing, and respondents will have the opportunity to contest nondisclosure. Keep in mind that a judge is allowed some discretion with nondisclosure proceedings, more so than with an expunction proceeding. The goal is to serve the interests of justice, so it is critical to develop and advance an effective strategy that promotes fairness.
Reach Out to Our La Marque Criminal Defense Lawyers
After reviewing this information, you can probably see that expunctions in Texas are definitely difficult and challenging. Eligibility is the first and most important consideration, but the outcome in your case might not allow you to take advantage of one day getting an expunction. Even if you do qualify, the legal process can be daunting. Even when a nondisclosure order or other remedies are your best option, your situation can still be and usually is quite complex. There are still requirements and rules that can be confusing to someone not trained in the legal issues the way a lawyer is.
If your personal life, professional opportunities, and other interests are impacted by a criminal arrest, it is essential to retain legal counsel with extensive experience in expunctions. You can trust Mark Diaz, Criminal Defense Attorney, for help with the process. Our La Marque criminal defense lawyers represent clients throughout Galveston County and Greater Houston in connection with various post-conviction remedies. Please call (409) 515-6170 to set up a free consultation today. We can discuss your options after reviewing your unique situation.