Are You Eligible For an Expunction? Find out here.

The Texas expuction statute provides detailed eligibility rules for explaining how to know if you are eligible for an expunction in Texas. The legislature codified the law regarding all expunction eligibility (except for expunctions of age-restricted offenses, like DUI) in Chapter 55 of the Texas Code of Criminal Procedure.

Whether you are eligible for an expunction under Texas law depends on whether your case fits into one of the specific circumstances described in the particular applicable expunctino statute. I have listed each one of these circumstances below. If your case fits into one of these categories, then you are eligible for an expunction.

Are you eligible for an expunction? Or entitled to an expunction?

Under the Texas expunctions statutes, you will be either entitled to an expunction or only eligible for an expunction. The difference is that, if you are entitled to an expunction, then a judge must grant you and expunction (so long as you properly apply for it). If you are not entitled to an expunction but eligible for an expunction, then the judge has some discretion and can possibly deny your petition.

The Texas expunction statutes in Chapter 55 of the Code of Criminal Procedure specify whether you are entitled to, or only eligible for, an expunction. Section 55.01(a) describes the circumstances under which you are entitled to an expunction (meaning the court must order the expunction), and CCP Section 55.01(b) describes the circumstances under which you are only eligible for an expunction.

Other expunction statutes that may affect your eligibility

The expunctions statutes also provide rules that prevent courts from granting expunctions when someone would otherwise qualify for an expunction.Arrests for violation of community supervision (aka probation), having a record of jumping bail, and committing an offense during a criminal episode can all disqualify you. Accordingly, if one of these rules apply to you, your expunction may be denied even if you are otherwise eligible.

Acquittal by Judge or Jury (after trial)

You are entitled to an expunction if you are tried and acquitted by the trial court.^[1] An acquittal means that a jury or judge has found you not guilty.

Interestingly, under this eligibility scenario, the judge is not supposed to require a petition for expunction.^[2] Rather, the expunctions statute requires either the prosecutor or your defense attorney to prepare an order granting expunction that the judge presiding over you case (or, if it’s a misdemeanor, that a district judge in the same county) is supposed to sign. The judge is supposed to sign this order within 30 days.

This is the most powerful type of expunction and the fastest as the procedural expunctions statutes do not allow for objections.

Pardon or Actual Innocence Finding (post-conviction)

You are entitled to an expunction if you are tried and convicted AND either ultimately pardoned or “otherwise granted relief on the basis of actual innocence with respect to that offense, if the applicable pardon or court order clearly indicates on its face that the pardon or order was granted or rendered on the basis of the person’s actual innocence.”^[3]

Similar to the situation in the Acquittal Expunctions statute, a judge is supposed to sign an order granting an expunction 30 days after the pardon or finding described in this section.^[4] However, in this case, your trial attorney is not tasked with preparing the order granting expunction, and you have the responsibility of providing the necessary information to the district judge.

This scenario is one of the rare circumstances in which the Texas expunctions statute creates expunction eligibility after a conviction.

Acquittal by Appellate Court (post-conviction)

You are eligible (not entitled) to an expunction of records related to a final conviction if an appellate court overturns the final conviction and acquits you.^[5]

This circumstance is, like the Pardon Expunction, one of the exceedingly rare expunction eligibility scenarios available after a conviction.

UCW Conviction prior to September 1, 2021

In 2021, the legislature created a law that allows for expunctions of certain Unlawful Carrying Weapons (UCW) convictions for offenses committed before September 1, 2021.^[6]

This new law creates an expunction eligibility scenario only for earlier violations of Penal Code Section 46.02(a), which prohibited all instances of intentionally, knowingly, or recklessly carrying a handgun except under certain circumstances. Prior to September 1, 2021, the law said: “a person commits an offense if the person: intentionally, knowingly, or recklessly carries on or about his or her person a handgun … and is not: (A) on the person’s own premises or premises under the person’s control; or (B) inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person’s control.” After September 1, 2021, this law no longer applied to people over 21 years old who have not been convicted of an offense under Section 22.01(a)(1), 22.05, 22.07, or 42.01(a)(7) or (8) committed in the five-year period preceding the date the instant offense was committed.

So, if you were convicted of UCW just because you intentionally, knowingly, or recklessly carried a handgun without a permit, you should be able to get an expunction.

No Charges Presented Within Certain Time Period (limited expunction)

This type of expunction does not require the expiration of the limitations period, and it applies even to offenses without a limitations period (such as murder). However, this type of expunction is known as a “limited expunction” because the expunction statute allows law enforcement and prosecutorial agencies to retain copies of records related to the arrest.^[7]

You are eligible for this type of expunction if:^[8]

• (1) you have been arrested and released, AND
• (2) the charge, if any, has not resulted in a final conviction and is no longer pending AND
• (3) there was no court-ordered community supervision, unless the offense is a Class C misdemeanor AND
• (4) an indictment or information charging you with the commission of a misdemeanor offense based on the arrest or charging you with the commission of any felony offense arising out of the same transaction for which you were arrested has not been “presented” against you at any time following the arrest, AND
• (5) the applicable time period, as described below, has elapsed.

The statutory time periods that you have to wait before receiving the expunction are as follows:^[9]

• 180 days 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 individual was arrested
• one year 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 individual was arrested
• three years 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 individual was arrested

If you meet these applicable criteria, you are entitled to an expunction, albeit a limited one.

No Charges Presented + State’s Certification

A more powerful version of an expunction for which eligibility does not require the expiration of the statute of limitations is the state certification expunction. Under this expunction statute, you are eligible if:^[10]

• (1) you havebeen arrested and released, AND
• (2) the charge, if any, has not resulted in a final conviction and is no longer pending AND
• (3) there was no court-ordered community supervision, unless the offense is a Class C misdemeanor AND
• (4) an indictment or information charging you with the commission of a misdemeanor offense based on the their arrest or charging the person with the commission of any felony offense arising out of the same transaction for which you were arrested has not been “presented” against you at any time following the arrest, AND
• (5) the attorney representing the state certifies that the applicable arrest records and files are not needed for use in any criminal investigation or prosecution, including an investigation or prosecution of another individual.

Charge Dismissed or Quashed + Pre-trial Intervention, Mistake in or Void Charging Instrument

The requirements for expunction entitlement under this expunction statute are 1) the person has been released, 2) the charge, if any, has not resulted in a final conviction and is no longer pending, 3) there was no court-ordered community supervision, unless the offense is a Class C misdemeanor, and 4) any charge presented was dismissed or quashed, and the court finds that the indictment or information was dismissed or quashed because the person completed a pretrial intervention program OR because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the individual committed the offense OR because the indictment or information was void.^[11]

Expiration of Statute of Limitations + No Final Conviction

The only statutory requirements for expunction eligibility under this category are that 1) you have been arrested and released, 2) the charge, if any, has not resulted in a final conviction and is no longer pending, 3) there was no court-ordered community supervision, unless the offense is a Class C misdemeanor, and 4) prosecution for the offense for which you were arrested is no longer possible because the limitations period has expired.^[12] You are entitled to an expunction if you meet the criteria of this section.

This is one of the most powerful forms of expunction. Unfortunately, there are many offenses in Texas that have no statute of limitations, so many cases will never be eligible for expunction under this eligibility scenario.

Recommendation by State Attorneys

The law provides an entirely separate road to eligibility for expunction that does not rely on any of the above requirements. The only eligibility requirements for expunctions in this category are that you have not been tried and a state prosecutor recommends expunction to a district court.^[13] You are eligible for (not entitled to) an expunction under this section.

This eligibility method is described in the statute as follows:

A district court may expunge all records and files relating to the arrest of a person who has been arrested for commission of a felony or misdemeanor under the procedure established under Article 55.02 if:…an office of the attorney representing the state authorized by law to prosecute the offense for which the person was arrested recommends the expunction to the appropriate district court before the person is tried for the offense, regardless of whether an indictment or information has been presented against the person in relation to the offense.

Note that under this category, you are eligible even if you have been charged or indicted.

Your name was Falsely Used

Finally, if someone falsely used your name without your consent, you are entitled to an expunction.^[14]

What does “presented” mean?

Because certain expunction eligibility scenarios hinge on when an indictment or information has been “presented,” it is important to understand what that means. Article 12.06 of the Texas Code of Criminal Procedure defines a felony indictment as being Presented when “it has been duly acted upon by the grand jury and received by the court.” Article 12.07 of the Texas Code of Criminal Procedure defines a misdemeanor information as being presented when “it has been filed by the proper officer in the proper court.

How to know if you are eligible for an Expunction in Texas: Exceptions to Expunction Eligibility

To find our whether you’re eligible for an expunction in Texas, you need to know not only whether you are fit into one of the eligibility categories above, but also whether you’re prohibited from obtaining an expunction under one of the eligibility exclusions. Each of the exclusions is discussed below.

Arrests for Violation of Community Supervision (Probation)

You are ineligible to expunge the record of an arrest that occurred as the result of a warrant issued out of a community supervision (probation) violation.^[15] One important note is that this exception is not limited in the language of the statute to any particular expunction eligibility category. So it would seem that these arrests would not be able to be expunged under any circumstances.

Jumping Bail

Any person who “intentionally or knowingly absconds from the jurisdiction” after being released on bond following an arrest is not eligible for subsection (a)(2)(A)(i)(a), (b), or (c) and subsection (a)(2)(B) expunctions.^[16]

Criminal Episodes

The expunctions statute also forbids courts from expunging the arrest of an individual who would otherwise be entitled to an expunction if the arrest was part of a “criminal episode.”^[17] The statute explains:

A court may not order the expunction of records and files relating to an arrest for an offense for which a person is subsequently acquitted, whether by the trial court, a court of appeals, or the court of criminal appeals, if the offense for which the individual was acquitted arose out of a criminal episode, as defined by Section 3.01, Penal Code, and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.

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Legal References:

^1. Texas Code of Criminal Procedure Section 55.01(a)(1)(A)^2. Texas Code of Criminal Procedure Section 55.02, Sec. 1^3. Texas Code of Criminal Procedure Section 55.01(a)(1)(B)^4. Texas Code of Criminal Procedure Section 55.02, Sec. 1a^5. Texas Code of Criminal Procedure Section 55.01(b)(1)^6. Texas Code of Criminal Procedure Section 55.01(a)(1)(C), as enacted by HB 1927, 87th Texas Legislature, Section 4^7. See Texas Code of Criminal Procedure Section 55.02, Sec. 4 (a-1) provides a notable deficiency in the power of expunctions of this type.^8. Texas Code of Criminal Procedure Section 55.01(a)(2)(A)^9. Texas Code of Criminal Procedure Section 55.01(a)(2)(A)(i)(a)-(c)^10. Texas Code of Criminal Procedure Section 55.01(a)(2)(A)(i)(d)^11. Texas Code of Criminal Procedure Section 55.01(a)(2)(A)(ii)^12 Texas Code of Criminal Procedure Section 55.01(a)(2)(B)^13. Texas Code of Criminal Procedure Section 55.01(b)(2)^14. Texas Code of Criminal Procedure Section 55.01(d)^15. Texas Code of Criminal Procedure Section 55.01(a-1)^16. Texas Code of Criminal Procedure Section 55.01(a-2)^17. Texas Code of Criminal Procedure Section 55.01(c)