2021 Legislative Notice: Significant changes were made to expunction laws in the 87th Texas Legislature in 2021. This page is being updated accordingly. If you have urgent questions, please book a consultation with us.
An Expunction is the only way to entirely remove records of an arrest from public availability. Law enforcement agencies and courts maintain records related to arrest and prosecution, including offense reports, documents filed with court clerks and evidence collected by the government. For the most part, these are public records, meaning anyone can access them – with certain limitations. Private companies may even acquire copies of all of the public records and keep them in their own databases and offer access to them for sale.
The police begin to generate records the moment that someone makes contact an officer. These typically include dashcam videos, bodycam videos, radio transmissions, and 911 transcripts. Additional records are created soon after any officer contact. Police officers almost always write arrest reports, offense reports or incident reports. There are also records generated at every court proceeding and prosecution. Even if a case is dismissed, these records do not simply disappear. In Texas, the only way to completely destroy these arrest records is to have the records expunged. But not everyone is eligible for an expunction. We describe various scenarios in which you might be eligible for an expunction below.
EXPUNCTION ATTORNEY FAQs
- What is an Expunction?
- What does Expunction and Expungement mean?
- Can I expunge my record? Am I eligible for an Expunction?
- How much does an Expunction cost?
- What is the waiting period for an Expunction?
- Who grants Expunctions?
- If I received probation, can I get an Expunction?
- If I plead guilty, can I get an Expunction?
- Do deferred prosecution cases qualify for Expunction?
- Do deferred adjudication dismissals qualify for Expunction?
- What is the difference between Expunction and Non-Disclosure?
- What does “presented” mean?
If your case is dismissed, some people unfortunately might still harbor animosity or judge you negatively just because you were arrested, even though the case was dismissed. These people may not be smart enough to realize that just because you were arrested or charged with a crime, you were not guilty of it. Our clients often want an expunction because they want to clear their criminal record to pass a background check for a job. Others want to clear their records because they do not want the police to pre-judge them if the police run their license plates. You may want to be able to save yourself from the embarrassment of having to explain a wrongful arrest any time someone runs your background. Whatever the reason, an expunction will force the government to destroy those records.
If you were wrongly arrested, you probably would not want that wrongful arrest to prevent you from getting a job, and you certainly would not want the general public to find the record of that arrest. The only way to permanently remove an arrest from your record is through an expunction. If you successfully obtain an expunction, under Texas law you can legally say that you have never been arrested.
You should hire an attorney to draft your Petition for an Expunction because you only have one opportunity to get it, and if done incorrectly you may never be able to entirely remove the records. Every petition is different, and the law is highly complex. Do not use a form (whether you found it online, at a courthouse or elsewhere) to obtain your Expunction. If the form that you use is incorrect, you may never be able to fully remove your records from the public domain. It’s not worth the risk.
Winning your criminal case in court is sometimes only the first part of your legal battle. If you have been successful in court, and your case has been dismissed or you have won an acquittal through trial, then you may be eligible for an Expunction to keep the arrest record and all other records of criminal court proceedings out of the public eye. Paul Saputo and his expunction attorney team can draft your Petition for Expunction if you meet the expunction eligibility requirements.
An expunction is the strongest legal mechanism available to protect your reputation through the court system after a successful outcome in a criminal case. Remember that even if you win in court, your record is not sealed from the public. Anyone will be able to look you up and find out that you were once arrested, what the charge was and any other court documents and records related to that arrest. If you want to keep this information out of the public record, then you will want to get an Order of Expunction. We can help you do that.
What is an Expunction?
An expunction is a judicial order that requires certain records relating to an arrest to be destroyed or sent back to the District Clerk for destruction.
What does Expunction and Expungement mean?
An expunction or expungement means that a court has ordered documents or other physical or digital items related to an arrest to be destroyed. The process to receive and expunction and the eligibility qualifications for it were created by the Texas state legislature and put into law at Chapter 55 of the Texas Code of Criminal Procedure. Many people refer to expunctions as a way to “seal” their records, but this is the incorrect word to describe Expunctions because “record sealing” is used in the law to describe juvenile record sealing, which is entirely different from Expunctions.
It is important to note that records relating to your arrest are not automatically removed from any public or private database (including the databases of companies who sell your data and post it online) if your case is dismissed. An arrest will remain in the public record and show up in pre-employment background checks and online database searches until you have received an Order of Expunction and the company or government agency has been removed the record from its database. In order to obtain an order of expunction, you have to file a petition for expunction and have a judge a sign the order granting you the expunction.
After receiving an expunction, you are allowed by state law to deny that you had ever been arrested, even on employment applications.1
Can I expunge my record? Am I eligible for an Expunction?
Under most circumstances, in order to be eligible for an expunction, you must not have been convicted. You are considered convicted whether you were found guilty by a judge or a jury. It does not matter whether you stood trial or plead guilty or no contest: if a judge found you guilty after a guilty plea or no contest plea, then you have been convicted. If a jury found you guilty after a trial, then you are also convicted.
Generally, if you were sentence to probation, even deferred adjudication probation, you are not eligible for an expunction. One exception to this is if you plead guilty to a Class C Misdemeanor and the case was ultimately dismissed (typically because it was deferred probation). Another exception is for DUI and other age-restricted offense. Another exception was created by the 87th Texas Legislature in 2021. If you were convicted of UCW, as it existed prior to September 1, 2021, you can get your record expunged. Learn more details about this expunction eligibility scenarios
If you did not get convicted or plead guilty after you were arrested, or if you were convicted of UCW, you may be eligible for an expunction. In order to do this, you need to obtain a court order to have the arrest records destroyed. You can then legally deny the arrest ever occurred, even on an employment application.1 You may be entitled to an expunction if your case was dismissed, if it was no-billed by a grand jury, if you were acquitted (or found “not guilty”) at trial, if someone else was arrested using your name without your permission, or if you were convicted but later pardoned. See a more detailed discussion of expunction eligibility
You are strongly encouraged to hire a lawyer to handle your expunction because you only get one chance to do it. If you want to clear your criminal record, you should make sure to do it right. At the Saputo Toufexis | Criminal Defense, we keep up with the latest law related to expunctions as well as the most innovative technologies involved with the sale and distribution of public arrest record documents to private companies.
How much does an Expunction cost?
The total cost of an expunction is the combination of the statutory fees, the filing fees and your attorney’s fees. Attorney’s fees vary depending on the complexity of the case, and the statutory and filing fees vary slightly depending on the county in which you have to file.
What is the waiting period for an Expunction?
A waiting period is usually required before you are able to file a petition for expunction. After filing the petition, it may take up to sixty days to get a petition for expunction to be heard in court depending on statutory notice requirements and how quickly your criminal defense attorney works.
Immediately after the expunction order is granted, you may deny the arrest on employment applications. However, it can take the Texas Department of Public Safety a few weeks or even months to destroy your records after an expunction is granted, so you should get started on the expunction process as soon as possible if you need the record expunged to pass an employment background check. Do not wait until the last minute if you need a record removed for a job application.
Who grants Expunctions?
If you qualify for an expunction, then in most cases you have an absolute legal right to have the records of your arrest and prosecution deleted and destroyed. A judge must sign off on the expunction, but if you meet the eligibility criteria, then the judge does not have legal right to deny the petition. However, sometimes expunctions are discretionary. And in most cases, the district attorney will review the petition and offer the court its opinion as to whether you are entitled to the expunction or not. For this reason, an expunction attorney usually will talk to the district attorney in advance to determine whether anything needs to be worked out before the hearing date.
If I received probation, can I get an Expunction?
Any conviction will typically disqualify you from an expunction, including a “straight” probation sentence, except for DUI and other age-related alcohol offenses and, after the 87th Texas Legislature, any UCW convictions as the statute existed prior to September 1, 2021. You are also not eligible for an expunction if you received deferred adjudication for an offense, unless that offense was a Class C misdemeanor or for a UCW. However, if you have received probation and you’re not otherwise eligible for an expunction, you may still be eligible for an order of nondisclosure. You may also qualify to apply for judicial clemency if you received a probation sentence after conviction. Learn more information about Judicial Clemency here
If you were convicted, pled guilty, or pled no contest, then your arrest may not be able to be expunged. You also may not be able to expunge your record if you jumped bail or violated the terms of probation or if it was part of a “criminal episode.”
If I pled guilty, can I get an Expunction?
You are generally not eligible to have your arrest expunged if you were ultimately convicted, whether after a guilty plea, a no contest plea or trial unless you are pardoned by the governor of the state of Texas or you were convicted of UCW before September 1, 2021. A no contest plea has the same impact as a guilty plea in Texas, and you will not be able to expunge your record if the judge found you guilty unless you are pardoned or it was UCW conviction.
Do deferred prosecution cases qualify for Expunction?
“Deferred prosecution” refers to a pre-trial diversion program. Deferred prosecution is only available through a plea bargain and results in a dismissal. If you successfully complete the program and your case is dismissed, then you usually qualify for expunction, but it depends on the specific program. Deferred prosecution is entirely different from deferred adjudication. Deferred adjudication is a type of probation.
Do deferred adjudication dismissals qualify for Expunction?
You generally do not qualify for an expunction if your arrest resulted in a deferred adjudication dismissal unless you successfully completed deferred adjudication probation on a Class C Misdemeanor case. However, the 2021 Texas Legislature did create another exception for UCW cases. Other than UCW cases, dismissals obtained after a successful deferred adjudication probation for a Class A or B misdemeanor or felony are not eligible for an expunction. However, you may still be eligible for an order of nondisclosure. Orders of non-disclosure are similar to expunctions, but there are important limitations to orders of non-disclosure and differences between the two.
What is the difference between Expunction and Non-Disclosure?
Expunctions and orders of nondisclosure are very similar, but there are important differences between the two. Both expunctions and nondisclosure are judicial orders that can clear your criminal record, but they do it in different ways. An Order of Expunction is a more powerful judicial order that can extend to a wider array of private, public and governmental agencies. If your arrest is expunged, all parties subject to the order are required to redact, delete or destroy all records relating to the arrest (except that for limited expunctions, the applicable law enforcement agencies and prosecutors may retain the records).
Nondisclosure merely prevents the disclosure of records by government agencies to the general public, but the records are not destroyed, and the records may be shared with various government and certain other private entities. The records are never destroyed.
Both orders of nondisclosure and expunctions do not change the status of your record for immigration purposes. Under immigration law, if you plead guilty, you will be considered guilty whether or not you were eventually adjudicated guilty. So a guilty plea resulting in deferred adjudication will still count as a conviction for immigration purposes.
Eligibility rules are different as well for nondisclosure. If you successfully completed deferred adjudication probation, your record may be eligible for an Order of Nondisclosure, but you will not be eligible for an Expunction.
If you qualify for an Expunction, then in most cases you have an absolute legal right to have the records of your arrest and prosecution redacted, deleted and destroyed. Nondisclosure is different from expunction in that regard. Judges have the authority to order nondisclosure if the court believes that it would be in the best interest of justice to seal your record from the general public. Under most circumstances, judges are not required to grant nondisclosure to everyone that qualifies. Learn more about Orders of Nondisclosure
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.”
1Texas Code of Criminal Procedure Article 55.03(2). Note, however, that 55.03(3) provides an exception to testimony under oath.