An expunction is designed for individuals who have been wrongly arrested and/or wrongly charged with a criminal offense. If the expunction is granted, it allows you to deny the arrest ever happened. All government records of the arrest and prosecution file will be destroyed.
The ability to have your criminal record expunged is a statutory right, not a constitutional right. Therefore, to be eligible for a Texas expunction, a person must meet all of the requirements listed in the applicable statute, Code of Criminal Procedure Article 55.01. In cases where an expunction would not granted, a petition for nondisclosure may be an option.
Common Examples of When a Crime in Texas May be Expunged
- Any crime that you are charged within Texas for which you are found not guilty by a judge or jury (acquitted by the trial court) is eligible for expunction.
- If a person is convicted of a crime but then pardoned or, granted relief based on actual innocence, they are eligible to have their record for the applicable offense expunged.
- Crimes that fall under Texas Penal Code Section 46.02(a) for the unlawful carrying of weapons, as that section existed for an offense committed before September 1, 2021.
- Charges that do not result in a final conviction and are no longer pending, and no court-ordered community supervision, unless the offense is a Class C misdemeanor, provided that 1) that an indictment or other charging instrument has not been presented against the person at any time following the arrest or was dismissed or quashed, 2) a designated period of time has passed since the date of arrest (this length of time varies by offense), and 3) the person has not previously received an expunction of arrest records and files.
- Prosecution is no longer possible because the statute of limitations has expired.
- If a person is tried and convicted but then acquitted by the court of criminal appeals, the period for granting a petition for discretionary review has expired, or the government office authorized to prosecute the offense recommends the expunction.
- The person was pardoned for the offense by the Governor of Texas or the U.S. President.
- Certain qualifying misdemeanor juvenile offenses.
- Conviction of a minor for certain alcohol-related offenses.
Crimes That Cannot Be Expunged in Texas
Many different circumstances can disqualify a person with a criminal record for expunction. With limited exceptions, a person cannot get a criminal record expunged if they were convicted of a felony, one of the many consequences of a felony conviction.
Regardless of your current situation, if you commit certain offenses, you are not eligible to expunge your criminal record. In fact, most offenses that involve children, sexual assault, and violent acts such as criminal assault, are not eligible for record sealing in Texas including but not limited to:
- Capital Murder
- Indecency with a Child
- Aggravated Kidnapping
- Aggravated Sexual Assault
- Aggravated Robbery
- Sexual Assault
- Injury to a Child, Elderly Individual, or Disabled Individual
- Criminal Solicitation
- Some Drug Offenses [see Texas law and Drug Trafficking]
- Use of a Child in the Commission of an Offense
Procedure for Expunction in Texas
Texas, filing an expunction petition will remove an offense from an individual’s criminal history and force state agencies and private companies to remove references to the arrest in their electronic files and to destroy any hard files related to the arrest. While, as mentioned above, there are many ways to become eligible for expungement in Texas, they usually require a person to have their case dismissed or to be acquitted (found “Not Guilty”). Expunctions can be granted as soon as a case ends or even months or years later.
When you file a petition to have your criminal record expunged, you will have to appear in court at a hearing that is usually held a month after your initial filing. The court can grant expungement at the hearing, but it can also take up to six months for a decision to be handed down. If the court grants an expungement, it generally takes up to 180 days for local, state, and federal agencies to destroy their records.
Expunction vs. Petition for Nondisclosure
The petition for nondisclosure seals an offender’s criminal record but does not destroy the records. This means that any agent of the government can still see the records but, the public cannot access the information. To qualify for this relief, you have to meet specific criteria that are different than those for an expunction.
Having a criminal record can make life more difficult in many ways, including affecting a person’s ability to get a loan, whether they can sign a lease, or even finding a job. If you would like to speak to one of our experienced criminal defense attorneys, to discuss your legal options contact us today