An Expunction is a valuable tool which enables a person with a criminal history to have his or her reputation restored by having the arrest or charge removed from their record. This is a very important remedy to protect your reputation.
I frequently get calls from people who had a criminal case dismissed years ago; however, after applying for a job, they were turned down due to their criminal history. They were under the impression that since their case had been dismissed, it would not appear on their record. They were incorrect. (It should be that way, but it’s not.) Furthermore, you would think with the presumption of innocence we all hear about, one would need to be convicted before we are going to allow public or private agencies to post a criminal history on them. However, the presumption of innocence is a Constitutional right to protect us in a court of law. Unfortunately, we as a society and thru our legislatures do not have a presumption of innocence in the minds of the people, once we are arrested for an offense. The arrest is public record and almost immediately available on the web. There are even what I refer to as bottom feeders, private companies who purchase criminal histories from governmental agencies and then post mug shots of the people arrested on websites designed to embarrass them. I am sure their position would be to inform the community. In order for the record to be cleared, it must be expunged. When the Texas Department of Public Safety receives an expunction order, then they have a duty to notify any private agency that purchases criminal histories from the department to expunge their records.
The law allows for expunctions under certain circumstances, but an expunction proceeding is required. In most situation, a District Court has jurisdiction over expunctions. Anyone who has had a criminal case dismissed, no-billed by the grand jury, never charged or found “not guilty” should explore whether their case is eligible for expunction.
Common Questions Regarding Having Your Criminal Record Expunged:
Can I get my criminal record expunged?
This is an important and common question because there are so many different scenarios and different factors that play into who is eligible to have their criminal record expunged. As a general rule, you can have your record expunged in Texas if:
- You were arrested but not charged with a crime
- You went to trial and the judge or jury found you not guilty
- You were convicted but later acquitted by the court of criminal appeals
- You were convicted but later pardoned
- Your case was dismissed prior to trial
- You completed a pre-trial diversion program offered by the court and your case was dismissed
- You completed a deferred probation for a Class C misdemeanor
These are the basics. There are others and each case needs to be evaluated and investigated individually.
Why do I need to have my record expunged?
Our society continues to make more information available online. This is true for criminal records as well and criminal records are being used by employers, schools, apartment complexes and other organizations for application purposes. Records that used to be difficult and cumbersome to obtain are now available within minutes.
If you have something on your record from your past – no matter how long ago – they can see it. For example, let’s say you have arrested 10 years ago for theft but were never charged. You would think that because you were never charged, it wouldn’t show up on your criminal record, right?
Wrong. When you apply for a job and they run your criminal record, it will probably show that you were arrested for theft. Chances are, you probably won’t get that job. Take the steps to get your record expunged so it will no longer show up when someone runs your background.
How do I get my criminal record expunged?
Hiring a criminal defense attorney is important if you want to get your record expunged. If you chose to hire the Law Office of Stephen D. Handy you will have peace of mind knowing that we will act quickly and you will be assured that everything will be done and all procedures will be followed correctly. Whether you know you are eligible for an expunction or not, call my office and I will do some research to see if you are eligible.
Recent Changes in Chapter 55 of the Code of Criminal Procedure
Recent Changes in the Code of Criminal Procedure Chapter 55, the expunction statutes, is filtering down to my clients. Some of these changes are positive and some have created some new challenges.
One area that the Legislature addressed was the issue involving cases where people had been arrested for an offense, but then the case was never prosecuted. In this situation, a person had been arrested and the arrest record and book-in photo were readily available for anyone to see but nothing was happening on the case. This issue has been addressed by what we criminal defense lawyers refer to as a “partial expunction”. Chapter 55.01 (A) states: relating to waiting periods
“regardless of whether any statute of limitations exists for the offense and whether any limitations period for the offense has expired, an indictment or information charging the person with the commission of a misdemeanor offense based on the person’s arrest or charging the person with the commission of any felony offense arising out of the same transaction for which the person was arrested:
(i) has not been presented against the person at any time following the arrest, and:
(a) at least 180 days have elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a Class C misdemeanor and if there was no felony charge arising out of the same transaction for which the person was arrested;
(b) at least one year has elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a Class B or A misdemeanor and if there was no felony charge arising out of the same transaction for which the person was arrested;
(c) at least three years have elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a felony or if there was a felony charge arising out of the same transaction for which the person was arrested”;
In essence, this part of the statute allows the client to file for and receive an expunction order on the arrest without having to wait for the entire statute of limitations period when in most cases it appears formal charges are not going to be brought by the State. However, the State does not have to destroy their records so that they may continue to investigate or use if they later chose to prosecute. However, the record of your arrest is expunged from public view and removed from databases the public may have access to. You further would be able to legally deny the arrest. Once the Statue of Limitations period has run you should then able to file for a complete and full expunction.
Another specific area that the legislature has addressed allowing for expunctions without waiting the entire statute of limitations period is when a person completed a pretrial intervention program authorized under Section 76.011 of the Government Code. Pretrial intervention, diversion programs are sometimes used by the State and Defense to help rehabilitate a person without them having to be on a legal probation that can never be cleaned up. There are several different types of pretrial diversion programs that Tarrant County and surrounding counties use that would fall under the type of intervention program reference in Section 76.011 of the Government Code. Knowledge of these programs and options is a must for a good criminal defense attorney. They are sometimes the best option for a client mentally, physically, and legally. Furthermore, they often provide the quickest way to have a client in a position to have the case expunged
Expunction law is complex and can sometimes be confusing. Our legislature has tried to clear up some areas, just to muddle others. Overall, it is easier to look at individual cases and circumstances to determine eligibility.
Expunctions are a valuable tool that far too many people don’t know about and don’t utilize to their advantage. It usually takes a negative event like being denied a job or position they really wanted for them to pursue an expunction. Don’t wait. Call my office today to discuss your past criminal record and whether or not it can be expunged.
What if I’m not eligible for an expunction, is there any other remedy?
In Texas, you may be able to have your record “expunged” as we have discussed, or in certain circumstances, you may petition to have your record sealed (“non-disclosed”). Due to the nature of the offense, charge or conviction, an expunction may not be an option. However, it may be possible to obtain an order of nondisclosure if you have successfully completed deferred adjudication probation and have not been charged with any other offense during any mandatory waiting period.
An expunction removes the offense from your record as if the offense never happened. An order of nondisclosure will “seal” the records from the public and cannot be released or accessed by most private parties. However, the records will still remain available to some government agencies and may be admissible in certain court actions. However, the general public would not be able to see the prior case and you are allowed to deny the allegations of arrest.
If you have completed deferred adjudication for any of the following criminal offenses and have waited the appropriate period of time, you may be eligible to file for an order of nondisclosure:
I. Most felonies – 5 years from date of discharge and dismissal
II. The following misdemeanors – 2 years from date of discharge and dismissal
• 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
• 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 passageways
• 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
III. Most misdemeanors – may file immediately upon discharge and dismissal.
The key takeaway of these procedures is that even though you may have made a mistake in the past and have a criminal record, the law tries to allow those mistakes to be remedied. Don’t wait until you suffer a negative consequence to correct a past mistake.
I’ve practiced criminal defense law for over 15 years and have seen the frustration and regret that comes with waiting to file an expunction or order of non-disclosure. Call my office today to see if you are eligible for an expunction or an order of non-disclosure.
Call Fort Worth criminal attorney Stephen Handy today at (817) 589-2134, if you need help with expunction of criminal records. He offers one-on-one, vigorous representation for expunction of criminal records in Tarrant County and all surrounding areas.