Expunging a Conviction in Texas

Expungement is a legal process by which a court can ensure that a person’s criminal records are treated as if they no longer exist. This process is also known as “expunction.” Another similar process is that of criminal record sealing.

There are different options and rules in each state regarding record sealing and expungement, but some kind of process is available in all, including Texas. In addition, some form of expungement or record sealing is permitted in all states for juvenile offenses.

What Are the Laws Regarding Expungement in Texas?

In Texas, expungement is called “expunction.” Under Texas law, a person can request that their criminal record be expunged or sealed in some cases. Expunction and record sealing are two different processes. The result of both means that the general public is not able to see a person’s criminal record under most circumstances. But there are significant differences between the two processes as follows:

• Record Sealing Under an Order of Nondisclosure: This applies to some criminal records in Texas, and once a criminal record is sealed, the general public is not able to view it. But others are still able to view the records as follows:
  • Criminal justice agencies continue to have access to the sealed criminal record. However, they can only disclose it to the person whose records they are, other criminal justice agencies, and certain specified licensing and employment entities.
  • For example, if a person were to apply for a job in any kind of school, a Texas law enforcement agency would be required to share the sealed criminal record with this potential employer if the employer requests the information;
• Expunction: If a court has ordered that a person’s criminal record be expunged, the record may not be released to any member of the public or law enforcement or used for any reason. After a person is granted an expunction, they are permitted to deny that they have ever even been arrested or had a record expunged with one very narrow exception as follows:
  • The exception to this is if the person is asked about an expunged record while under oath in a criminal trial, they are not legally allowed to deny the existence of an arrest. However, they can state that the record of the arrest in question has been expunged.
  • Other situations in which a person might have to disclose the arrest include:
    • Applications in connection with immigration and naturalization procedures;
    • Applications for employment with the military or the federal government that require a security clearance or a background check;
    • Applications for state licenses that ask a person to swear under penalty of perjury about their criminal record.

Record sealing and expunction are similar in some ways. When a person’s record is sealed or expunged, most potential employers who conduct background checks are prohibited from accessing the information in the record. In many cases, once a person’s record has been sealed or expunged, a person does not have to disclose it, even on a job application.

Also, consider that a person is a close relative of a deceased person with a criminal record who is eligible for expunction. In that case, the person can apply for an expunction on behalf of their deceased relative. Parents, grandparents, spouses, adult brothers and sisters, and children are included within the definition of “close relatives” in Texas.

What Records Qualify for Expunction in Texas?

A person’s criminal record may qualify for expunction if the person was arrested for a misdemeanor or felony and if the following apply:

• A person was convicted but later pardoned or found innocent;
• A person was charged with a crime, but the case against them was dismissed;
• The statute of limitations for a criminal case has expired;
• A person was acquitted of a charge or charges at trial; or
• A person was never formally charged with a crime, and the required waiting period has expired.

What Is the Waiting Period for Expungement in Texas?

In Texas, if a person was arrested and not charged with a crime, they are required to wait for a certain period of time before they can apply for expunction. The waiting period is likely to be different depending on the crime for which the person was arrested as follows:

• 180 days from the date of the arrest for a Class C misdemeanor;
• One year from the date of the arrest for a Class A or B misdemeanor;
• Three years from the date of the arrest for a felony.

What Criminal Records Qualify for an Order of Nondisclosure?

A person’s criminal record may qualify for sealing under an order of nondisclosure if the judge deferred proceedings without finding the person guilty, placed the person under court supervision, and if, at the end of their period of supervision, the judge dismissed the proceedings against them.

There is a five-year waiting period for felonies, while the waiting period is two years for serious misdemeanors. Most misdemeanor convictions are eligible for sealing, and if the person’s punishment was payment of a fine only and no jail or prison time, then there is no waiting period.

For other misdemeanors, as mentioned previously, the waiting period is two years. Also, there are some crimes that are never eligible for sealing under an order of nondisclosure.

How to File for Expunction or Record Sealing?

If a person has a criminal record of the kind that qualifies for expunction or sealing, they must complete a Petition for Expunction or Petition for an Order of Nondisclosure form and file it with the court that handled their criminal case.

Courts do charge a fee for filing a Petition for Expunction. There are additional fees for notifying law enforcement agencies of the expunction. Different counties charge different fees, so a person would want to contact the clerk of the county in which they seek the expunction to find out what the fee is.

If a person has a low income, they can file a Statement of Inability to Afford Payment of Court Costs in order to get the fee waived. A person should file the Statement and the Petition at the same time.

The expunction procedures in the following situations are different, and a person should talk to a Texas expungement lawyer if they need to clear an arrest from their record after any of the following events:

• An acquittal after a trial;
• A pardon was granted after a person was found guilty;
• An order of actual innocence was made by a court;
• The prosecution never filed charges but might be able to do so because the statute of limitations has not yet expired;
• A person has not yet had a trial, and the prosecutor recommends expunction;
• A person’s case involves a “waiting period” and “discretionary expunctions,” which require the prosecutor’s help with the expunction petition;
• There is an error in a person’s criminal record because someone else used the person’s name when they were arrested;
• A person has been convicted of a similar crime in the past;
• The arrest that a person wants to expunge involves multiple charges, and the person was convicted of one or more of the charges. Or, the person may still be prosecuted for one or more of the charges.

Should I Contact a Lawyer to Expunge a Criminal Record in Texas?

Having a criminal record can lead to difficulties in different areas, such as finding a new job, applying for an apartment, or obtaining a professional license.

If you think that your criminal record may qualify for expungement or sealing, it is important to consult with an experienced Texas expungement lawyer who can inform you about the relevant laws and guide you through the process.