Do you have a criminal record that is interfering with your ability to get employment, apartment rental, home purchase, or a loan? Would your life be improved if you had the opportunity to take advantage of eliminating your criminal record? If you’ve been arrested but not charged with a crime, you should look into expunction. Most people don’t realize that being arrested for a crime they were later not convicted of can still hang around on their arrest record and affect the rest of their lives.
Expunction refers to the erasing of a person’s record. This is a civil lawsuit against all of the agencies that have records relating to your arrest. This lawsuit requires all agencies to destroy records relating to your arrest. There are different types of expunctions in Texas: standard expunction, expunction for pardon or acquittal, and discretionary expunction or dismissal.
You may be eligible for expunction of your criminal record if:
- You were arrested for a crime, but never charged
- You had charges brought against you, but they were eventually dismissed
- You were found not guilty of a crime in court at trial
- You received a formal pardon from the Governor of Texas or the President of the United States. (This is not a likely occurrence)
- You were a victim of identity theft
There are a range of other legal conditions surrounding expunction cases. For example, you cannot have been convicted of a felony within five years of the arrest you’re trying to have expunged. Also, the statute of limitations for the crime you’re trying to remove from your record cannot have passed. Consulting a knowledgeable expunction lawyer is the best way to find the type of expunction that is right for you. If you want to know more about the expunction process, give us a call!
If you successfully completed a probation or deferred adjudication, you are probably eligible for a nondisclosure. A nondisclosure prevents government agencies from publicly disclosing criminal history information resulting from an offense. In this way, private companies or entities will not know about your arrest or the charges. What makes you eligible for a non-disclosure? First, you cannot have taken a conviction. That means no straight probation or convicted jail time – i.e. only a deferred or a dismissal makes you eligible. Second, whereas an expunction is all about the statute of limitations period, a non-disclosure is all about the date of dismissal.
For most misdemeanors, a person may file a petition for an order of nondisclosure immediately after discharge from probation and dismissal of the offense. However, some misdemeanors require a defendant to wait two years from the date of the discharge and dismissal of the misdemeanor offense. During this two-year period, the applicant must not have received anything more than a citation for a fine-only traffic offense.
For all felony offenses, the applicant must wait five years from the date of the discharge and dismissal of the felony offense before a non-disclosure may be filed.
Even if a defendant has successfully completed a deferred adjudication probation, he or she is not eligible for an order of nondisclosure if he or she has ever been convicted or placed on deferred adjudication for certain offenses, including murder and aggravated kidnapping, if he or she is a registered sex offender, or if he or she has violated a protective order. Ultimately, the particular criminal offense will determine whether a person is entitled to an order of nondisclosure and, if so, when such an order can be obtained.
An order of nondisclosure does not, however, require the government to destroy the information. It may be released to criminal justice agencies, noncriminal justice agencies authorized by statute or executive order and to the subject of the criminal history information.
Misdemeanors in Texas
|Prostitution and promotion of prostitution||Within 2 years|
|Possession of marijuana less than 2 ounces||Within 2 years|
|Theft of property less than $100||Within 2 years|
|Other misdemeanors||Within 2 years|
Statute of Limitations in Texas for Felony Offenses
|Murder and manslaughter||No time limit|
|Sexual assault or aggravated sexual assault||No time limit|
|Offenses against young children||No time limit|
|Failure to stop and render aid when the accident resulted in death||No time limit|
|Trafficking of persons||No time limit|
|Offenses related to theft by a fiduciary||10 years|
|Theft by a public servant of government property||10 years|
|Injury to the elderly or disabled||10 years|
|Sexual assault or aggravated sexual assault||10 years|
|Compelling prostitution||10 years|
|Misappropriation of fiduciary property||7 years|
|Securing execution of a document by deception||7 years|
|Money laundering||7 years|
|Credit card or debit card abuse||7 years|
|Fraudulent use of identifying information or possession of identifying information||7 years|
|Medicaid fraud||7 years|
|Robbery or felony theft||5 years|
|Kidnapping or burglary||5 years|
|Injury to an elderly or disabled individual||5 years|
|Child endangerment or child abandonment||5 years|
|Insurance fraud||5 years|
|Sexual performance by a child, if the child is younger than 17||20 years from 18th birthday of the victim|
|Other felonies||3 years|
Juvenile Sealing of Records
In Texas, an individual between the ages of 10 and 17 who was arrested or charged with a crime likely has a juvenile file and record. Juvenile justice files are records of a minor who was brought before a court for delinquent conduct. The records of minors are generally confidential, but local law enforcement, the Texas Department of Public Safety, the FBI and other agencies can access them. These records can also be accessed when you grant a potential employer, prospective educational institution or licensing agency authorization to run a criminal background check on you or your child.
Juvenile records are generally permanent. To be destroyed, the record must qualify to be sealed, and you must petition the court to have the record sealed. Unfortunately, not every offense is eligible to be sealed. If the case ended with successful completion of a deferred prosecution, you can typically petition to seal the records immediately. Certain misdemeanors qualify to be sealed after a successful completion of probation. Other offenses have a waiting period of two years or until you or your child turns 18 or 21. Charges such as aggravated felonies and sex offenses can never be sealed.
Sealing results in a complete and permanent removal of the record. Once sealed, you or your child may deny that the juvenile records exist and that the event that led to the record — whether arrest, prosecution or adjudication — ever happened. You or your child can legitimately answer that they have never been arrested, convicted or adjudicated of a crime on job, licensing or school applications.
Eligibility for record sealing changes if a 17-year-old is convicted or placed on deferred adjudication for a crime in adult criminal court.
Six months after a person’s expunction or non-disclosure order goes into effect, their record should be clean. While some agencies and administrative bodies will still be able to access a person’s files if their expunction is subject to exceptions or if theirs is a non-disclosure order, the individual can take comfort in the fact that employers, colleges, landlords, blind dates, and nearly anyone else who might have reason to run a background check on them will come up with nothing regarding their sealed or destroyed records.