How Does Expungement Work? And Answers to Other Questions
In Texas, expungement is the legal procedure in which all criminal records relating to a misdemeanor and felony arrest are erased, deleted, and destroyed. Having your criminal record expunged allows you to legally deny the arrest, the original criminal case, and any other history relating to the arrest and criminal case.
The following article is an overview of expungement law in Texas and the questions our Fort Worth criminal defense attorneys are frequently asked. If your questions are related eligibility requirements, specifically your own eligibility, you may contact The Clark Law Firm for more information.
Is My Case Eligible for Expungement?
Under Texas Code of Criminal Procedure Section 55.01, you may be eligible for expungement if one of the following applies:
- The charges were never filed
- The charges were filed, but then were later dismissed
- You were acquitted
- You were convicted but later proven innocent
- You were not tried and the prosecutor recommended expungement
- You were no-billed by a grand jury
- You were pardoned by the Governor of Texas or U.S. President
- Otherwise granted relief based on your actual innocence
Although My Case Was Dismissed, Why Does It Still Show on My Record?
Contrary to what many people assume, a criminal record does not automatically go away over time. It remains public, showing that you were arrested and charged with a particular crime, and readily available unless it is expunged. An expungement will permanently remove the criminal history from your record.
Does It Matter If I Pled Guilty or No Contest?
If you pled guilty or no contest, then the case is not able to be expunged. The only exception is if the case was for a misdemeanor class C and you completed deferred adjudication.
What If I Received Deferred Prosecution or Deferred Adjudication?
If you successfully completed a pre-trial diversion program that you were referred to after deferred prosecution, you could be eligible for expungement. However, people who were sentenced to deferred adjudication are eligible for expunged only for Class C misdemeanors.
People who received deferred adjudication for Class B misdemeanors, Class A misdemeanors, or felony offenses of any level are not eligible for expungement. However, they may be able to seal their criminal records through an order of nondisclosure.
After My Case is Dismissed, What is the Waiting Period before I Can Apply for Expungement?
Yes. There is a two-year waiting period for misdemeanors and there is a three-year waiting period for most felonies. For more serious felonies, there is a longer waiting period. The waiting period starts to run from the date of arrest or incident.
Furthermore, there are some circumstances where you can get your record expunged before the waiting period ends. For example, if your case was dismissed due to lack of probable cause or error, then you can file before the waiting period expires.
What are the Reasons that a Texas Expungement Can Be Denied?
An expungement could be denied because of one of the following:
- There was an inaccuracy in the court records and/or in the expungement petition
- The court does not find that expungement is in the interest of society
- You have not paid your fines
Do I Have to Go to Court?
In most cases, your lawyer can appear in court on your behalf and you do not have to attend the expunction hearing. However, the court may require the client to appear as well in some circumstances.
How Long Does the Expungement Process Take?
From start to finish, the process for expungement will typically take a few months. To begin the process, you need to first file a petition in district court. Then, a hearing will be scheduled no sooner than 30 days after the petition is filed. In Tarrant County, a hearing date is often set about four to six weeks form the date the petition is filed.
How Long Does It Take for the Records to Be Removed?
From the time an order for expungement is granted, it often takes up to 90 days for the agencies to destroy the records.
What Happens After My Expungement is Granted?
Once the expunction order is granted, the petitioner can legally deny the arrest which has been expunged. Keep in mind, the arrest and case records will not be destroyed right away. Rather, an order is sent to the Texas DPS and any agencies listed in the order that maintain the records instructing them to destroy records.