SEALING RECORDS & EXPUNCTIONS
Expunctions and non-disclosures are critical to removing record of your arrest. For the overwhelming majority of people, a criminal charge is a one-time event—it is not indicative or representative of the person’s character. Most people want to be able to move on with life following the resolution of a criminal case. Obtaining an expunction or non-disclosure is of paramount importance in allowing the person to obtain employment, attend college, rent property, and to move forward in life.
Be warned: the law concerning expunctions and nondisclosures is complex, and changes relatively often. The best way to determine if you are eligible is to call a lawyer.
What is the difference between an expunction and a non-disclosure in Texas?
As between an expunction and a non-disclosure, an expunction is the gold-standard.
Having your record expunged does two very important things: (1) by order of a district court, all agencies holding any record of the arrest, charge, etc. must destroy all copies of such records, under penalty of law; and (2) it allows you to legally, honestly, and ethically deny that the incident ever occurred. In short, an expunction removes all record of an alleged offense.
Conversely, a non-disclosure prevents any record of the arrest, charge, etc. from being seen by unauthorized persons. However, there is a list of approximately 30 agencies that are authorized to obtain information subject to non-disclosure. What types of agencies? A school district, charter school, private school, and other educational service-centers; The State Bar of Texas and Board of Law Examiners; a municipal or volunteer fire department; a commercial transportation company; Texas Medical Board; and many others.
Who is eligible for an expunction?
A right to an expunction post-arrest exists where one of the following has happened:
(1) Acquitted (found “not guilty”) at trial,
(2) Convicted, but subsequently pardoned,
(3) Tried, convicted, and acquitted by the Texas Court of Criminal Appeals (and no PDR pending),
(4) Charge was dismissed, or felony was no-billed (under some circumstances), OR
(5) Person has been released, charge no longer pending, and charge has not resulted in a final conviction, and no court ordered community supervision under CCP art. 42.12 (e.g. regular probation, deferred adjudication, etc.), and a set amount of time has passed since the date of arrest.
I successfully completed deferred adjudication probation for a charge. Can I get my record expunged?
I successfully completed Pretrial Diversion/First Offender Drug Court/Mental Health Court for a charge. Can I get my record expunged?
Yes! And, in the instance of successful completion of a Mental Health Court, you can get the expunction for free and within 30 days.
Sealing of Criminal Records
Where a person has successfully (1) completed deferred adjudication probation for an offense, (2) the charge has been dismissed and the person has been discharged from probation, and (3) the applicable waiting period has been observed, a person is eligible to petition the court to have his record sealed. The waiting period for all felonies is five years from the date of discharge and dismissal or the charge; and two years from the date of dismissal and discharge for misdemeanor offenses. Offenses such as assault, assault family violence, and unlawful carrying of a weapon that are excluded from automatic sealing, are eligible under Standard Deferred.
A person can have prior convictions or prior deferred probation to petition the court for sealing under Standard Deferred. The petitioner (person asking the court to seal his record) is required to show that sealing his record is in the best interests of justice.
The following new additions to the law concerning the sealing of records apply only (1) where a person has never been previously convicted or placed on deferred adjudication for another offense greater than a traffic citation punishable by a fine only; and (2) only to specific offenses.
Effective September 1, 2017, there are multiple situations wherein a person’s record can be sealed. The new changes apply to offenses committed on, before, or after September 1, 2017 (i.e. the application is retroactive in this respect.) Additionally, standard deferred exists for excluded offenses. However, for purposes of “automatic sealing,” only a person who was discharged from probation on, or after, September 1, 2017 is eligible for “automatic sealing.”
Automatic Sealing (Non-DWI) (no prior conviction or deferred)
Completion of deferred adjudication probation is grounds for automatic sealing for certain low-level offenses when the charge is dismissed following the end of the supervisory period, and the person has never been previously convicted or placed on deferred adjudication for another offense greater than a traffic citation punishable by a fine only.
There is no longer a waiting period where a person has successfully completed deferred probation under the automatic sealing changes. Section 2, 411.072 (b)(1)(2). Some offenses, such as assault family violence, unlawful carrying of a weapon, assault, unlawful restraint, and others, are excluded from eligibility under this section. However, such offenses remain eligible under Standard Deferred (see above). Offenses such as possession of marijuana, theft, and other misdemeanors are now eligible for automatic sealing under this section.
Once a person has been discharged from deferred under this section, and the charges have been dismissed the court shall automatically issue an order of nondisclosure.
DWI (Class B) Sealing (no prior conviction or deferred)
Following completion of probation for a Class B DWI, a person can petition the Court to have the person’s record sealed provided (1) the person has successfully completed probation, and (2) has never been previously convicted or placed on deferred adjudication for another offense greater than a traffic citation punishable by a fine only. Section 4, 411.0731.
What differs here is the applicable waiting period. If the person had ignition interlock on the person’s vehicle for at least six months as a condition of probation, the waiting period to petition for nondisclosure is two years from the date probation was completed. If the person completed probation, but did not have ignition interlock on the person’s vehicle as a condition of probation, the waiting period is five years from the date probation was completed. Section 4, 411.0731(f)(1)(2).
Time-Served Sealing (Non-DWI) (no prior conviction or deferred)
Now, sealing records is an option for some offenses where a person has done jail time, instead of probation. Section 5, 411.0735. Provided the person has (1) never been previously convicted or placed on deferred adjudication for another offense greater than a traffic citation punishable by a fine only; and (2) two years have passed since the Court sentenced the person to time-served on the charge, a person may now petition the court to have his record sealed. Section 5, 411.075(b)(2), (d)(2).
Time-Served Sealing (DWI) (no prior conviction or deferred)
There is a minor difference from the above where the offense the person received jail time for is a Class B DWI. However, the person might now still be able to have his record sealed. Section 6, 411.0736.
As with the previous section, the person must have never been previously convicted or placed on deferred adjudication for another offense greater than a traffic citation punishable by a fine only, and must wait the applicable time period. The waiting period where a person has agreed, as a condition of sentence, to have ignition interlock on the person’s vehicle for at least six months is three years following the completion of the sentence. If the person did not have ignition interlock as a condition of sentence, the applicable waiting period is five years from completion of the sentence.