Tim Cole Assistant Professor of Law, UNT Dallas College of Law
SPRING 2018 Issue
Criminal Activity & Liability
There are many misconceptions about when expunctions are allowed and how to ensure that a record has been expunged. This confusion can lead to a false belief that one’s record has been expunged when in reality, it has not. This article debunks the myths surrounding the methods available to get an expunction.
The Myth of Deferred Adjudication Deferred adjudication—does it really go away? The simple answer is no, and in some cases the record will not, and cannot, be expunged. This is a myth about expunction. Many people serve probation believing that the records of their arrest and conviction will be erased if they successfully complete the probationary period. Successful completion of deferred adjudication only means that the conviction never becomes final. All the records produced by the arrest and charge (police agency records, jail records, the prosecutor’s file, the court’s file, and data input into state and national criminal records databases) remain intact, and many of those records remain on the public record.
The truth is that successful completion of deferred adjudication, community supervision, or any other form of probation, cannot lead to expunction of those records under Chapter 55 of the Texas Code of Criminal Procedure. Any type of adjudication, whether a final conviction or deferred adjudication, disqualifies the records for that case from expunction. The only exception to this rule is a completed deferred adjudication for a Class C misdemeanor (i.e., a traffic offense or public intoxication).
So, when is expunction available? The Texas courts have made it clear that the purpose of expunction is to correct an arrest or conviction that should not have occurred. What that means is that a person who is acquitted—or found not guilty—of the offense by a judge, jury, or appellate court on appeal, may have records of the offense expunged. Expunction is available so long as no other case that was filed based on the same incident remains pending, and the person has not been convicted of a different case arising from the same criminal episode as the acquitted offense.
‘Waiting Period’—Expunctions After Wrongful Arrest A person who is wrongfully arrested but not prosecuted should be allowed to have the records of that arrest expunged. It would be unfair to saddle a person with a lifetime of criminal history records that should never have been produced in the first place. There are several different ways this can happen. One way is that if the arrest did not result in community supervision or a conviction, but remains pending, records of the arrest can be expunged under the ‘waiting period’ section of the expunction law.
Under the waiting period, if a person is arrested and released for either a felony or a misdemeanor case that is no longer pending or did not result in a court-ordered community supervision, and a charging instrument was not presented within the specified time period following the arrest, the arrested person may have the arrest records expunged. The waiting period is 180 days for a Class C misdemeanor, one year for a Class A or B misdemeanor, and three years for a felony arrest. The prosecuting attorney with jurisdiction of the charge may waive the waiting period by certifying to the court that the records are no longer needed for prosecution.
Another way of obtaining an expunction for a wrongful arrest is to allow the statute of limitations to pass. This situation occurs if you have been mistakenly arrested for an offense and everyone, including the prosecutor, agrees that you should not have been arrested. Unfortunately, the wrongful arrest will remain on your record until the statute of limitations has passed. Even worse, if the arrest was for an offense that did not have a statute of limitations, those arrest records would remain in place forever.
Expiration of the Statute of Limitations A person who can no longer be prosecuted for a crime because the statute of limitations has passed may have the records of the arrest expunged, so long as no case remains pending and no prosecution resulting in probation or a final conviction has occurred. A case that has not been filed within the statute of limitations can never be revived and prosecuted.
Quashed or Dismissed Charge An additional method to obtain expunction exists in very limited circumstances when an indictment or information was actually filed, but was later dismissed. An indictment or information that was dismissed or quashed because the charge was based on a mistake, false information, or any other reason indicating that probable cause for the arrest and charge did not exist, or was void, also entitles the arrested person to expunction.
Expunction is available to a person who completes a prosecution program called “pretrial intervention” or “pretrial diversion,” so long as the program qualifies as such under the Texas Code of Criminal Procedure. Dismissal of the charge upon completion of the program is required. These programs are available in many counties throughout Texas, and in various forms.
Pardon by the Governor A pardon by the Governor is the only avenue that exists for expunction cases that result in community supervision, a final conviction, or a finding of innocence. A person who receives a pardon from the governor is entitled to expunction. Pardons are rare because the Governor grants a very small number of requests for pardons each year. The process for requesting and obtaining a pardon is daunting, with many hurdles to overcome. Very few people even make this attempt, which often results in a long wait-time and a disappointing outcome.
Procedure to File; Effect of Expunction Order The procedure for filing a petition—a request for expunction of criminal records—is extremely detailed, and a person seeking expunction should hire an attorney experienced in filing expunction petitions to ensure that all the filing and notice requirements are met. If a person successfully obtains an expunction order, that person may then deny the occurrence of the arrest and the existence of the expunction order. The only exception to this is if the person is questioned under oath in a criminal proceeding. In all other circumstances, such as a job interview, the person may deny that the arrest occurred.
Orders of Nondisclosure A person who cannot obtain expunction of arrest and conviction records will often qualify for an order of nondisclosure. This is similar in some ways to an expunction order, but does not remove the arrest and conviction records completely. Criminal justice agencies, state regulatory agencies, and even some private employers such as financial institutions can still obtain the records, as well as employers who handle, manufacture, or transport hazardous materials. Orders of nondisclosure do not prevent subsequent use by the prosecution if the person is later prosecuted for a new offense.
Orders of nondisclosure, found in Chapter 411 of the Texas Government Code, were added to Texas law to provide those who have successfully completed deferred adjudication, and in some cases probation or jail sentences, with an avenue to avoid the adverse impact of a conviction when trying to obtain employment. In 2015, the Texas Legislature made significant changes to the statutes allowing the order of nondisclosure to be available to a much wider group of offenders. The changes were made in recognition of the extreme difficulty most people have in obtaining expunction orders, and in many cases, orders of nondisclosure.
Two basic requirements must be met to obtain an order of nondisclosure: first, the person cannot have been convicted or placed on deferred adjudication for any offense except a fineable only traffic violation; and, second, the person cannot have ever been convicted of certain serious offenses such as murder, family violence, or a sexual offense. Some low-level offenses automatically qualify for nondisclosure, such as first time offenders who successfully complete deferred adjudication. Unlike an expunction order, offenders who have successfully completed probation and even misdemeanor jail sentences can obtain an order for nondisclosure.
Orders of expunction and nondisclosure benefit offenders by allowing them to deny the existence of an arrest or conviction.
For more general information about expunction and nondisclosure please visit: ccresourcecenter.org or seek legal counsel through an attorney. Sources ¹ Tex. Code Crim. Proc. §55 (West 1965). ² Tex. Gov’t Code Ann. §411 (West 2015). ³ Houston Police Department v. Berkowitz, 95 S.W.3d 457 (Tex. App. – Houston [1st Dist.] 2002, pet. ref’d).