SECOND CHANCES: HOWTOGET RIDOF YOUR TEXAS

CRIMINAL RECORD
You Can Clean Up Your Texas Criminal History Through Expungement (Destruction) or
Nondisclosure (Sealing) of Texas Criminal Records
By Michael Lowe, Esq. written on January 24, 2014
Police officers arrest people all the time; it doesnt mean that everyone arrested is guilty of a
crime. An arrest is not a conviction. Nevertheless, for anyone who has been arrested, their
future has been forever changed because now they have a criminal history of arrest in a
permanent record. That arrest record can haunt someone for a very long time, as many will
simply assume that the arrest is synonymous with being guilty of doing something bad. Its not
fair, but its reality.
Additionally, some people get swept up into circumstances and violate the law; however,
judges that are convinced that these folk are worthy of protection from the stigma and harm
that can come from an established criminal record can allow deferred adjudication of the
matter, giving an opportunity for the person to move forward without the shadow of a criminal
record.
Not every state allows for the mercy of erasing, purging, sealing, destroying, or otherwise
protecting criminal records. Moreover, not every crime (for example, a serious felony like
capital murder) is permitted the opportunity of cleansing from a criminal history. For more
information on various states as well as the possibility of federal expungement or seal, see
Myrick, A. (2013), Facing Your Criminal Record: Expungement and the Collateral Problem of
Wrongfully Represented Self. Law & Society Review, 47: 73
104. doi: 10.1111/lasr.12002.
Luckily for Texans, the Texas legislature has passed laws
allowing for the destruction, as well as alternatively the
sealing, of past criminal records. Felony and misdemeanor
crimes are both permitted to be protected from future
revelation if statutory conditions are met under Texas law,
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specifically the provisions contained in Chapter 55 of the Texas Code of Criminal Procedure.
CLEARING A TEXAS CRIMINAL HISTORY IS POSSIBLE
Clearing a criminal history in Texas is therefore legally permitted, and it is easier than many
might think. Many people are eligible to have their criminal records expunged in the state of
Texas, and others can free their futures of a past criminal record through filing a Petition for
Non-Disclosure with a local Texas court.
Having the ability to expunge a criminal history or to have a court grant a non-disclosure (sealed
record) request can be extremely important to protecting future employment goals, scholarship
awards, military advancement, admission to certain organizations as well as colleges and
universities, and more. The opportunity to shield a past criminal history offers an invaluable
second chance to many people.
WHAT IS ANEXPUNCTIONINTEXAS?
Expunction is a process available to criminal defendants in Texas. Here, a criminal defendant
files a specific kind of document called a petition with the proper Texas court, requesting that
the judge grant their desire to have all documents associated with an arrest and prosecution
destroyed by those law enforcement agencies involved in the matter. It is available for charges
based upon Texas state law.
Successful expunctions can include the court ordering and directing these law enforcement
agencies to destroy their files, including everything from the initial police reports and jail
records, all the way through to the prosecution reports and trial court files. The key to an
expunction in Texas: once the court grants a criminal defendant his or her expungement, that
person can legally deny that they were ever arrested for, much less charged with, the crime
involved in the expunction.
WHAT IS A PETITION FOR NONDISCLOSURE?
In Texas, a criminal defendant can also file a formal request with a criminal court judge called a
Petition for Nondisclosure which offers similar protections to an expunction but does not
involve the destruction of files. When a petition for nondisclosure is granted, there is a court
order that directs the pertinent law enforcement agencies that there cannot be any disclosure
to any third party of the subject criminal records involving the persons arrest, prosecution, and
deferred probation. The records are not destroyed in a nondisclosure like they are in an
expungement.
Importantly, as with an expunction, someone who has been granted a nondisclosure petition
request can legally deny the existence of his or her arrest, charge, and deferred probation.
Imagine how important this can be to a college student who has been arrested, who now with a
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nondisclosure order can freely apply for jobs after graduation without having to relate these
details.
Some may worry that without destruction, these criminal records may still be accessed or
criminal histories revealed by third parties. This is especially worrisome given todays digital
age. To address this concern, court orders in Texas granting nondisclosure of criminal histories
will specifically include language where the judge requires that any third party purchasing
criminal history information from the State of Texas must remove that information from any
and all databases. Failure to do so by these third party vendors places them in violation of the
Texas Court Order and subject to civil penalties.
EXPUNGEMENT VS. NONDISCLOSURE OF CRIMINAL HISTORY: THE
DIFFERENCES
Texas law does not allow an individual to choose between expungement or nondisclosure.
Different criminal defendants are allowed to expunge their criminal records under Texas law
than those who are eligible to petition the court for nondisclosure of their criminal record.
Who is eligible for expungement of criminal records under Texas law? The following criminal
defendants are eligible to have their criminal records expunged and destroyed, if the judge
agrees and approves of their request:
1. DISMISSED CASE OR GRAND JURY NO BILL
For those who have had a criminal case dismissed by the Office of the District Attorney or have
seen the Grand Jury refuse to indict them (the matter has been No Billed by the Grand Jury),
Texas law allows them to request that the records be expunged. This is true for misdemeanors
and felonies.
For felony crimes no billed by a Texas Grand Jury, there may be a time period set in Texas
statutes before the criminal defendant can request that their record be expunged. For example,
the limitations period for felonies ranges anywhere between five years and ten years. Some
serious felonies, such as Murder, have no time limitations period. Once time has passed, and
the calendar shows that there has been expiration of the applicable limitations period, the
felony case can be expunged.
2. EXONERATED DEFENDANTS
Being found not guilty in a Texas criminal court is important for someones freedom and
reputation, of course. However, it is also vital to these criminal defendants that they can have
their criminal records regarding the matter expunged if there has been a trial on the merits and
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the fact-finder (the judge or the jury) has come back with a verdict of not guilty. This is true in
Texas for every criminal offense.
For those who cannot have their criminal histories expunged, they may be able to file a Petition
for Nondisclosure of Criminal Records in Texas. Here, the key factor is having successfully
completed their deferred adjudication probation prior to filing the Petition for Nondisclosure of
Criminal Record. If you successfully completed deferred adjudication, you may be able to seal
your records.
Not every criminal defendant is eligible for nondisclosure because they have not been dealing
with the appropriate kind of probation. In Texas, there are two types of probation. Only one
kind allows for nondisclosure of criminal records.
The first kind of probation in Texas is called regular probation. Here, a conviction is involved.
The criminal defendant has been convicted of a crime in a Texas court which means that he or
she has be adjudicated guilty of a crime as that is defined in Texas law. The judge, instead of
imposing jail time on that defendant, instead suspends imposition of the jail sentence for a set
period of time. This is regular probation.
However, pursuant to article 42.12 of the Texas Code of Criminal Procedure, that Texas criminal
judge can decide to place that criminal defendant on probation for a period of time and to
additionally DEFER any finding of guilt while the defendant completes the probation. If the
defendant successfully completes probation, the court will dismiss the case without an
adjudication or finding of guilt.
This is called Deferred Adjudication and it is a non-conviction type of probation. The court
judgment or the sentencing order in a criminal case will delineate what kind of probation was
ordered by the judge. If the court ordered deferred adjudication and this was successfully
completed, then there is no criminal conviction and the case is dismissed.
CRIMES WHERE NONDISCLOSURE OR EXPUNGEMENT IS NOT
ALLOWED
Some crimes and offenses in Texas have been excluded from being eligible from having criminal
records sealed. If you have ever been required to register as a sex offender, that cannot be
sealed by a Texas court. Anyone who has been placed on probation or convicted of a family
violence offense is not eligible, as well (other than Class C Misdemeanor cases). Finally, if you
have ever been placed on probation or convicted for any of the following crimes, then a Texas
judge will not grant a Petition for Nondisclosure:
Aggravated Kidnapping
Violation of a Protective Order
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Stalking
Murder
Capital Murder
Manslaughter
CANYOUGET RIDOF AFELONY ONYOUR CRIMINAL RECORD
BY HAVINGIT SEALEDINTEXAS?
If you were placed on Deferred Adjudication and not formally convicted of any criminal offense
(other than traffic tickets) for 5 years from the date that you were discharged from the deferred
adjudication of your felony, then you may be eligible to have your criminal record for that
felony sealed.
CANYOUGET RID OF A MISDEMEANOR ONYOUR RECORD INTEXAS?
If you have a misdemeanor on your criminal record in Texas, then you may be able to get that
record sealed. How? First, review the following list for your misdemeanor criminal record. If
your misdemeanor case is not on this list, then you can have it sealed immediately upon
completion of deferred adjudication probation.
If your type of case is on this list, then (1) if your misdemeanor deferred adjudication involved
you being placed on probation and (2) you have not been convicted for any type of offense
(other than traffic tickets) for the 2 years following the date you were discharged from your
misdemeanor deferred adjudication probation, then (3) you are eligible for having your record
sealed if it has been at least two years from the date you were discharged (finished) your
deferred adjudication probation.
Homosexual Conduct
Assault
Aiding Suicide
Deadly Conduct
Terroristic Threat
Leaving a Child in a Vehicle
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Bigamy
Harboring a Runaway
Violation of a Protective Order
Advertising For Placement of a Child
Disorderly Conduct
Riot
False Alarm or Report
Indecent Exposure
Interference With Emergency Telephone Call
Possession, manufacture, transport, repair or sale of switchblade knife or knuckles
Public Lewdness
Unlawful Carrying of a Handgun by a License Holder
Unlawful Carrying Weapons
Unlawful Possession of Firearm
Unlawful Restraint
Obstruction of a Passageway or Highway
Disrupting Meeting or Procession
Abuse to 9-1-1 service
Harassment
Stalking
Abuse of a Corpse
Cruelty to Animals
Attack on Assistance Animal
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Dog Fighting
Destruction of Flag
Discharge of Firearm in a Municipality
Use of Laser Pointers
Unlawful Transfer of Certain Weapons
Hoax Bombs
Making a Firearm Accessible To a Child
DOYOUNEEDA LAWYER TOGET RIDOF ATEXAS CRIMINAL
RECORD? NO.
In Texas, forms are available to anyone who would like to request that their criminal records be
expunged or sealed. These forms can be found online, at for example RecordHelp.com, and can
be completed and filed with the appropriate court by the person whose record is involved.
The purchase of these forms do not, in any way, create an attorney-client relationship between
any person and any attorney. If you believe that you are eligible to have your record sealed but
these forms do not address the conditions making you eligible, you should consult with an
attorney.
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About the Author: Michael Lowe is a Texas trial attorney practicing criminal defense law in the
Dallas area for many years after first serving as a felony prosecutor for the Office of the District
Attorney for Dallas County. He is Board Certified by the State Bar of Texas in Criminal Law. Mr.
Lowe has tried to verdict over 150 criminal trials so far in the state and federal systems.