Many accused of crimes are good, honest, and productive folks caught up in a bad situation.
Even if your case is dismissed, either outright or following a deferred adjudication, the general public can access your criminal history. This can devastate your ability to find work, housing, loans, etc.
Imagine a defendant accused of theft. His case is dismissed outright due to lack of proof. Even though his case is dismissed, anyone doing a background check will find the defendant was charged with theft. In other words, he does not have a clear or clean criminal record. Do you honestly think someone would trust this defendant enough to hire him, even though he was never convicted? Unless the defendant takes affirmative steps to clear his record, this theft will follow him like a curse.
Texas offers two different means--an expunction and nondisclosure--for defendants to destroy or seal their criminal records. Each method--expunge or destroy--has its own eligibility requirements. A criminal defense lawyer is generally best qualified, because of his education and experience, to file for expunctions or nondisclosure. Neal Davis is a Board Certified Houston criminal lawyer who has handled many expunctions and nondisclosures. Suffice it to say: Anyone who has a case that resulted in a final conviction, including from "straight" probation, is ineligible for either an expunction or nondisclosure on that case.
You do not want to leave it to some third party who is not a lawyer to pursue an expunction or a petition of non-disclosure on your behalf. Besides posing the risk of identity theft, such a third party cannot legally practice law. That means that this third party cannot file pleadings, appear in court for you, or render any other such legal services. Avoid false claims that, even if your are convicted, you can clean or erase a criminal record. Neal Davis has unique experience handling petitions for non-disclosure and expunctions because he has filed many of them in the past.
The following individuals are eligible to erase their records:
(1) Those who were arrested for, but never ultimately charged with, a crime,
(2) Those who had charges brought against them, but the charges were dismissed
(3) Those acquitted by the trial court or the Criminal Court of Appeals
(4) Those who received a pardon from the Governor of Texas or the President of the United States, OR
(5) Those who were the victim of identity theft (i.e. the person arrested for the crime provided another person's name and information to the police instead of their own)
Expunging records is unavailable for:
(1) Those who received a deferred adjudication (more commonly referred to as probation), OR
(2) Those who were acquitted of a crime that occurred as part of a "criminal episode" and either have charges pending against them for a different crime that occurred during that same episode or were convicted of a crime that occurred during that same episode.
In cases where charges were dismissed, the statute of limitations for the alleged offense must (absent rare circumstances) have expired before a petition to expunge can be filed. For most felonies, the limitations period is three to ten or more years. For misdemeanors, the statute of limitations is generally two years.
An individual requesting expunction cannot have been convicted of a felony within five years of the arrest the person is attempting to expunge, regardless of whether the arrest is for a felony or misdemeanor.
In cases where charges were dismissed, the statute of limitations for the alleged offense must (absent rare circumstances) have expired before a petition to expunge can be filed. For most felonies, the limitations period is three to ten or more years. For misdemeanors, the statute of limitations is generally two years, EXCEPT (new in 2011): You can obtain an expunction if you have been released and the charge did not result in a conviction, or community supervision, and no indictment or information has been filed for:
--at least 180 days since the arrest and the arrest was for a class C misdemeanor, or
--at least one year has elapsed since the arrest for a Class B or A misdemeanor, or
--at least three years have elapse since the arrest for a felony, or
--the state's attorney certifies the records and files are not need for any prosecution or investigation, or
--the limitations period has expired. Previously, someone seeking an expunction had to wait until the limitations period had run before one could request an expunction.
To request that the record of the offense be erased, the individual (referred to as the "petitioner") submits a petition to the district court. After receiving the petition, the court will schedule a hearing and send a notice of the hearing to all applicable agencies and facilities. These parties have the right to contest the expunction order during the hearing. If the order is granted, any agencies or facilities with records or files regarding the expunged information are required to remove them.
Once the record is expunged, a person can deny the arrest ever occurred and any information related to it is permanently deleted from his or her record.
Those who are not eligible for expunction orders because they received deferred adjudication may be eligible for a nondisclosure order. Nondisclosure orders are similar to sealing records. In order to be eligible for a nondisclosure order, the individual requesting the order must meet several requirements in addition to successfully completing deferred adjudication. The individual must:
(1) Fulfill any waiting period required because of the nature of the offense
(2) Not have been convicted of any other offenses - except traffic offenses - or received any other deferred adjudications during the waiting period, AND
(3) Not have been previously convicted of certain crimes or received previous deferred adjudication for certain crimes, as set forth below
Most misdemeanors have no waiting periods for nondisclosure orders. But certain classes of misdemeanors require a two year waiting period from the time of discharge and dismissal before the individual may request a nondisclosure order. These misdemeanors include:
• Abuse of corpse
• Advertising for placement of child
• Aiding suicide
• Cruelty to animals
• Deadly conduct
• Destruction of flag
• Discharge of firearm
• Disorderly conduct
• Disrupting meeting or procession
• Dog fighting
• False alarm or report
• Harboring runaway child
• Hoax bombs
• Indecent exposure
• Interference with emergency telephone call
• Leaving a child in a vehicle
• Making a firearm accessible to a child.
• Obstructing highway or other passageway
• Possession, manufacture, transport, repair or sale of switchblade knife or knuckles
• Public lewdness
• Silent or abusive calls to 9-1-1 service
• Terroristic threat
• Unlawful carrying of handgun by license holder
• Unlawful carrying weapons
• Unlawful possession of firearm
• Unlawful restraint
• Unlawful transfer of certain weapons
• Violation of protective order preventing offense caused by bias or prejudice
If the petitioner's deferred adjudication resulted from a felony, there is a mandatory five-year waiting period after the discharge and dismissal before filing for the order.
If the petitioner previously was convicted of certain crimes or received a dismissal following deferred adjudication for these crimes, they are automatically ineligible for a nondisclosure order. These crimes include:
• Indecency with a child
• Sexual assault
• Aggravated sexual assault
• Prohibited sexual conduct (incest)
• Aggravated kidnapping
• Burglary of a habitation with intent to commit any of the above offenses
• Compelling prostitution
• Sexual performance by a child
• Possession or promotion of child pornography
• Unlawful restraint, kidnapping, or aggravated kidnapping of a person younger than 17 years of age
• Attempt, conspiracy, or solicitation to commit any of the above offenses
• Capital murder
• Injury to a child, elderly individual, or disabled individual
• Abandoning or endangering a child
• Violation of protective order or magistrate's order
• Any other offense involving family violence
If the court grants the order, then any information subject to the order is removed from public information databases and records. However, government agencies still will be able to access the information, including the police.
The petition for a nondisclosure order must be filed with the court that issued the deferred adjudication. The court will then hold a hearing to determine whether or not the person is qualified to receive the order "in the best interests of justice." This means that the court has the authority to deny the order if it finds justice will not be served by granting it.
Unlike expunction, records subject to a nondisclosure order are not destroyed, but rather are inaccessible to certain private parties and are removed from public records. Government agencies and departments, however, still will be able to access the files and records.