Records are generated from the moment you make contact with the police. At that point, additional records are created at every stage in the case. There will be records of arrest, records related to court proceedings, and records related to the disposition of your case. Even if your case gets dismissed, the records do not magically disappear—they still exist and could be extracted by a background check. In Texas, the only way to completely clear your record is to obtain an expunction.

What is an expunction?

An expunction (also called “expungement”) is a legal mechanism to remove all information about an arrest, charge, or conviction from your permanent record. The expunction order forces state agencies and private companies to remove and destroy any and all records related to the qualifying charge. Furthermore, the expunction legally allows you to deny that you were ever arrested for that offense.

How does the expunction process work?

Although you are seeking to expunge your criminal record, the expunction process is civil in nature. The first step is to file a Petition for Expunction within the district court according to the county in which you live or where you were arrested. The petition will require specific information including a list of all agencies or entities that have a record of your arrest.

Once your petition is filed, the court will set a hearing date. At the time of the hearing, you must present an Order for Expunction for the judge’s signature. A copy of the signed order must be provided to all relevant parties, including agencies that have records or files related to your offense. The agencies have 60 days to comply with the court’s expunction order.

Who qualifies for an expunction?

Not everyone is eligible for an expunction. Absent a pardon or acquittal on appeal, if you are convicted of any offense or you are placed on community supervision for an offense (other than a Class C misdemeanor), you are not eligible for expunction. Additionally, you are not eligible for expunction if your arrest relates to a probation violation or absconding after being placed on bond.

Records eligible for expunction include:

When can you get an expunction?

Even though your case is dismissed, you may not be eligible for an expunction right away.  A waiting period is usually required before filing a petition for expunction. The waiting period must satisfy the statute of limitations.

For example, let’s say you are arrested for a DWI on June 1, 2020. This offense is a Class B misdemeanor with a two-year statute of limitations. This means that the District Attorney’s office has two years from the date of your arrest to file the case. If on June 1, 2022, your case is not filed, the State is barred from further prosecution and you are eligible for an expunction.

Note, however, that the statute of limitations can be tolled. In effect, this would prolong your expunction date. Again, let’s say you are arrested on June 1, 2020 for DWI. On December 1, 2020 the State files your case. But, on June 1, 2021 your case is dismissed. Are you still eligible for an expunction on June 1, 2022, as in the last example? The answer is no. When the state filed your case, that tolled the statute of limitations period. That tolling did not cease until the case was dismissed; in this example, that period was 6 months. As such, you would not be eligible for an expunction until December 1, 2022.

Do all expunctions have a waiting period?

No, not all expunctions require that you wait the statute of limitations. In Texas, you are immediately eligible for an expunction upon the successful completion of a pre-trial diversion program.

If you were arrested for an offense and later acquitted at trial, you will be eligible for an expunction regardless of statute of limitations. This also applies to pardons given by the governor or U.S. President.

You may also obtain an expunction notwithstanding the waiting period if the prosecuting attorney recommends the expunction to the court. An expunction based on the prosecutor’s recommendation is within the discretion of the court, meaning that the court may reject the recommendation and deny the expunction.

Can an expunction be denied?

Expunctions can be denied for various reasons. This could include not meeting the required statutory waiting period or because the offense was part of the same criminal episode of another offense.

Do expunctions show on background checks?

Once your expunction is granted, agencies have 60 days to destroy all records of your offense. When all records of the arrest are destroyed, an expunction, or the offense relating to the expunction, will not show up on a background check. Moreover, it is a criminal offense for anyone to be in possession of records with an expunction order.

Is expunction the same as sealed?

No. An expunction is a destruction of criminal records. Sealed means the file still exists within the court. The sealing of records is completed through an order of nondisclosure.

Do I need an attorney?

Expunction law can get complicated. If you want to have your records expunged, or know if you are even eligible for an expunction, it is advisable to consult with a criminal defense attorney. An attorney skilled in expunctions can avoid errors that lead to unfortunate consequences down the line.  

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