How to Get an Expunction/Expungement in Texas
While most convictions cannot be removed from a person’s record, Texas law does allow individuals to permanently remove information about an arrest, charge or conviction from their permanent records in certain circumstances. This is called an expunction. Once a person’s record is expunged, all information is removed from the criminal record and that person can deny the incident ever occurred. Records eligible for expunction include:
i. An arrest for a crime that was never charged;
ii. A criminal charge that was ultimately dismissed;
iii. Certain qualifying misdemeanor juvenile offenses;
iv. Conviction of a minor for certain alcohol offenses;
v. Conviction for Failure to Attend School;
vi. Arrest, charge or conviction on a person’s record due to identity theft by another individual that was actually arrested, charged or convicted of the crime;
vii. Conviction for a crime that was later acquitted by the trial court or the Criminal Court of Appeals;
viii. Conviction for a crime that was later pardoned by the Governor of Texas or the US President.
Not all individuals with records eligible for expunction above qualify to receive an expunction. The Court will not grant an expunction to adults who have received deferred adjudication or probation or who have been convicted of a felony within five years of the arrest the person is seeking to have expunged. The Court will also not consider expunction if the offense is part of a “criminal episode” and the applicant for the expunction either has charges pending for a different crime that occurred during that same episode or the person was convicted of a crime that occurred during that same alleged episode.
Finally, a person cannot file a petition seeking expunction of a felony charge that has been dismissed if the statute of limitations for the crime subject to the dismissal has not yet expired. The statute of limitations is the amount of time that the state or 2 county has to prosecute an action against a person after that person has been arrested for an offense. The statute of limitations is different depending on the crime, but most are at least three years.
ORDER OF NON-DISCLOSURE
If expunction is not an option due to the nature of the offense, charge or conviction, it may be possible to obtain an Order for Nondisclosure. A nondisclosure order does not completely destroy all record of any offense, but will limit the accessibility of the records. Records subject to a nondisclosure order are removed from public record and cannot be released or accessed by certain private parties. However, the records will remain available to government agencies and will be admissible in certain court actions.
Under the Government Code §411.081, a person who has successfully completed deferred adjudication and received a discharge and dismissal of the deferred adjudication may apply for a nondisclosure order. 4 In addition to successful completion of probation or deferred adjudication, an individual must meet certain criteria in order to qualify for a Nondisclosure Order. For example, a person cannot apply for a nondisclosure order until after the statutory waiting period has passed. During that time, the applicant cannot have been convicted of any other offenses.
The waiting time varies anywhere from 0 to 10 years depending on the offense. Individuals charged with family violence, a sex offense requiring registration, aggravated kidnapping, murder and some other specific types of offenses will likely not be able to obtain a Nondisclosure Order.
In many instances, any record of a conviction for an offense that a person committed when that person was a minor can be expunged. A misdemeanor punishable by fine committed prior to the age of 17, an offense committed by a minor under the Alcoholic Beverage Code and a conviction for Failure to Attend School are all offenses that may be expunged. As in expunctions for an adult, the individual must follow certain procedures and meet specific criteria before the court will expunge the person’s record. For example a person cannot apply for an expunction for a juvenile record until after that person has reached a certain age.
Additionally, a person cannot have had multiple convictions. When a juvenile offender is convicted of an offense, the courts are sometimes required to give the child and the child’s parents information about the expunction process and how to apply for an expunction. Different procedures can apply to expunctions for juvenile offenses. Consequently, you should conduct additional research or consult an attorney before attempting to apply for an expunction of a juvenile record.