Who is eligible to have their criminal records completely wiped clean? Chapter 55 of the Texas Code of Criminal Procedure has the answer! It outlines who is eligible to have their record expunged and I have provided the various scenarios below. Quick disclosure, if you were placed on deferred probation, skip this section and go down to the Non-Disclosure section. If you were placed on straight probation or served jail time, you CANNOT get an Expunction OR Non-Disclosure.
- Scenario #1:
Person is tried for an offense and is ACQUITTED by a judge or jury trial. This means the person was found not guilty! As a result, the expunction can be requested immediately.
- Scenario #2:
Person is convicted of a crime but is later pardoned for a reason OR pardoned on the basis of actual innocence. As a result, the expunction can be requested immediately.
- Scenario #3:
Person has been released and the charge-
- Has not resulted in a final conviction
- Is no longer pending
- No court-ordered community supervision (probation)
Regardless of whether the statute of limitations exists or expires AND an indictment or information has not been presented against the person, then the person has to wait
- At least 180 days from the date of arrest for an offense punishable as a Class C Misdemeanor and no felony charge stemming from the same transaction
- At least ONE year from the date of arrest for an offense punishable as a Class B or A Misdemeanor and no felony charge stemming from the same transaction
- At least Three years from the date of arrest for an offense punishable as a Felony or if there was a felony charge stemming from the same transaction OR
- The attorney from the State certifies that the arrest records and files are not needed for use in a criminal investigation or prosecution, including the investigation of another person
- Scenario #4:
Person is arrested but later the charge was DISMISSED or QUASHED and the court finds the indictment or information was dismissed or quashed because:
- The person completed a pre-trial intervention program because the presentment of such charge was due to mistake, false information, or other reasons indicating absence of probable cause at the time of the dismissal OR
- The indictment or information was VOID
Here, the person would have to wait until the statute of limitations expires or wait under Scenario #3 timeframes. Unless the State agrees to certify that the arrest records and files are not needed then they can get an expunction immediately. If no certification is given by the State, you can get an expunction BUT the court shall provide in its expunction order that the applicable law enforcement agency and prosecuting attorney MAY RETAIN the records until entitled to an expunction of those records as in Scenario #3. It is rare the State will agree to certify the expunction so its best to wait until the time allows so you can get a complete expunction.
- Scenario #5:
Prosecution is no longer possible because the statute of limitations has expired. For a misdemeanor it is 2 years and for a felony it depends on the crime. As a result, the expunction can be requested immediately.
The difference between a non-disclosure and expunction is that only a partial clean up of your record will be obtained. What this means is that the Google search will no longer appear but certain agencies such as the FBI and several Texas Boards will still be able to see your criminal history. The advantages of getting a non-disclosure are for employment or housing.
Under Section 411.07 of the Government Code of Texas, once you have completed your deferred adjudication and the proceedings are dismissed, you can petition the court for an order of non-disclosure. After discharge and dismissal, the petition can then be sought as follows:
- Immediately for most Misdemeanors
- The Second anniversary for the following Misdemeanors: Unlawful Restraint, Public Lewdness, Indecent Exposure, Voyeurism, Unlawful Disclosure or Promotion of Intimate Visual Material, Assault, Deadly Conduct, Terroristic Threat, Disorderly Conduct, Obstructing Highway or Other Passageway, False Alarm or Report, Interference with Emergency Request for Assistance, Harassment, Prostitution, and Unlawful Carrying of a Weapon.
- The Fifth anniversary for a Felony.
A person is not entitled to petition the court if the person was placed on the deferred adjudication community supervision for or has been previously convicted or placed on any other deferred adjudication for:
- An offense requiring registration as a sex offender.
- An offense under Section 20.04, Penal Code, Aggravated Kidnapping.
- An offense under Section 19.02, 19.03, 22.04, 22.041, 25.07, or 42.072, Penal Code; (Murder, Capital Murder, Injury to child/elderly/disabled, Abandoning/Endanger child, Violation of bond in FV/Sex/Stalking Cases, Stalking)
- Any other offense involving family violence, as defined by Section 71.004, Family Code or the court makes an affirmative finding that the offense involved family violence.
If a non-disclosure is granted the court shall issue an order prohibiting criminal justice agencies from disclosing to the public criminal history record information related to the offense giving rise to the deferred adjudication.
If you need your record cleaned, please contact the lawyers at the Law Office of Patrick J McLain, PLLC. We can help defend you against various crimes and will fight vigorously to protect your legal rights. You can call us 24/7 by calling (214) 416-9100 or visit our law office at 3316 Oak Grove Ave St #200e, Dallas, Texas 75204. Don’t wait before it is too late!