There are two procedures under Texas law that citizens can turn to when they have an arrest record that is eligible for cleaning up. One is expunction, and the other is an order of nondisclosure. They are similar, but do differ in some important ways. And the critical thing to understand at the outset is that neither of these procedures are available to erase a criminal conviction. If there is a conviction on your record and the appellate period has expired, that conviction will remain on your record forever, end of story. This is why I strive to handle my clients’ criminal cases in such a way that they never receive a conviction. But even if you do have a conviction, there may be other parts of your criminal record that can be cleaned by one of these two procedures.
A criminal record is created not just when a person is convicted, but when they are initially arrested and later charged. Even if a case is dismissed, the public is still able to see a person’s arrest record and make judgments – sometimes very unfair judgments – about that person’s character. A criminal record makes it very difficult to be treated fairly by others who make decisions that affect our lives, like employment, education, and housing. Anyone turned down for an apartment lease or a job because of some bad youthful decisions knows what I’m talking about.
Expunctions: The Statutory Remedy to Expunge an Arrest Record
An expunction is a statutory remedy to clean up the official record of people who were unlawfully arrested, and as a tool to assist victims of identity theft in removing their information from other people’s criminal records. When successful, a granted expunction requires the removal and destruction of all records and files relating to an arrest.
There are technical requirements for eligibility that I can explain to you in a personal consultation, but generally speaking you may be entitled to expunge an incident if you were arrested, and then the case was never charged, or you were found not guilty, or the charge was dismissed and is no longer pending, and you did not suffer any penalty greater than a Class C deferred adjudication for the offense.
When an expunction is granted, not only are your arrest records destroyed, but you would be entitled to deny that the arrest ever took place at all (with one rare exception we can discuss in consultation). Moreover, if you’ve been granted an expunction, and a government official knowingly uses or releases your expunged records, they may be committing a Class B misdemeanor.
If you are legally entitled to expunge your arrest record, it makes all the sense in the world to seek one.
Orders of Nondisclosure
An order of nondisclosure is also a statutory remedy, similar to expunction, to shield the records of a person who has successfully completed a deferred adjudication probation and had their criminal charge dismissed by the court. When successful, an order of nondisclosure will seal records from public view (so that apartment manager or private employer can’t see them), but government agencies and law enforcement would still be able to view the records and see what happened in the person’s case.
As in expunctions, there are technical requirements for eligibility that I can explain to you in a personal consultation, but generally speaking you may be entitled to an order of nondisclosure if you were charged with an offense, pled guilty, and successfully completed a court-ordered term of deferred adjudication probation. Remember, this means that if you received a conviction, including being placed on “straight” probation, you would not be eligible for an order of nondisclosure.
Another important thing to understand is that if your offense is one involving family violence, or if you have ever had a conviction or deferred adjudication for certain serious felony offenses, any family violence offense, or any offense requiring sex offender registration, then you cannot receive an order of nondisclosure for any offense in your criminal record at all.
So, as you can see, these remedies can be very powerful and helpful, but we will need to pull your records and discuss in detail whether they apply in your situation or not. If you or a loved one would like to explore cleaning up an arrest record or have any other questions, please email me or call me. Your initial consultation will be free of charge.