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Every person has, at some point in his or her life, made a mistake, or has been accused of acting unlawfully. Having a criminal record, even if it is only the record of an arrest, can have a major impact on your life for years to come. The way to deal with a criminal record is to attempt to have it expunged. The process in Texas is known as “expunction.”
What is Expunction?
A final order of expunction means, under Article 55.03 of the Texas Code of Criminal Procedure, that:
- The records in question may not be released, disseminated, maintained or utilized for any purpose;
- You may lawfully deny both the arrest itself and the existence of the order of expunction; and
- If questioned in a criminal proceeding, under oath, you or anyone else may say only that the matter has been expunged.
The most important issue, of course, is what types of records can be expunged, and under what circumstances?
Am I Entitled to an Order of Expunction?
The expunction law is aimed primarily at those who have been arrested but not convicted of a crime. It covers more than simply wrongful arrests and includes a number of different situations. It applies in most cases if:
- You have been acquitted at trial;
- The indictment or information has been dismissed because it was void, or you completed pretrial intervention, or there was no probable cause for the charge;
- You were convicted but later pardoned;
- You were released from custody, there was no conviction, the case is no longer pending, no indictment is pending, and it has been at least (a) 3 years since the arrest in the case of a felony, (b) 1 year since the arrest in the case of a Class A or Class B misdemeanor, or (c) 180 day since the arrest in the case of a Class C misdemeanor;
- You have been released from custody, and the statute of limitations for the offense has expired; or
- You were convicted but the conviction was reversed on appeal.
There are various additions and exceptions to the law. In addition, a prosecutor has the discretion to recommend an expunction to the court, which may grant or deny the request in the interests of justice. Other expunctions may apply to juvenile offenses after you reach adulthood.
In most cases, once an order of expunction has been entered, the clerk of the court must return all records of the case to the court, or obliterate any portion of the record identifying the person arrested, and delete from its index of public records all reference to the files that have been expunged under the terms of the order.
What is a Nondisclosure Order?
Not every charge is eligible for an order of expunction. Some may nevertheless be entitled to the entry of a nondisclosure order. This does not destroy the record of the old arrest, but it will limit the ability of most people to access the information. The procedure is similar to that utilized when seeking an expunction. On the other hand, a nondisclosure order will not be granted in certain situations, including, among others, the following:
- If you received a sentence of probation or deferred adjudication, and were convicted of a felony within 5 years of the date of your earlier arrest;
- If the charge is part of a “criminal episode,” meaning two or more offenses that are part of the same transaction or a repeated offense;
- If the charge was a felony, and the statute of limitations has not yet expired; or
- If the charge was family violence, a sex offense requiring registration as a sex offender, aggravated kidnapping, and certain other charges.
If a nondisclosure order is entered, it is not the same as an expunction. While it will go a long way toward cleaning up the record of an old arrest, the record will still be accessible to law enforcement agencies and certain licensing boards. Nevertheless, it will accomplish most of what you are seeking.
Expunction Attorney in Houston, TX
Applications for expunctions and nondisclosure orders are highly technical, and a mistake can make the difference between cleaning up your record and having to deal with the consequences of an arrest – even a wrongful arrest – forever. It pays to have an experienced Houston criminal lawyer who will advise you whether you qualify, and if so, who will take the proper steps to clear your record.
If you believe you may be entitled to an expunction or a nondisclosure order, contact the Law Office of Nathaniel Pitoniak for a consultation.
