Expunction Requirements & Eligibility in Texas
A criminal record can have far-reaching consequences, even if the criminal charges do not result in a conviction. Fortunately, Texas law provides an opportunity for expunction to people who were arrested but their cases were dismissed or they were found not guilty after trial.
However, you will not be eligible for an expunction if you were placed on probation, deferred adjudication, or you finished your case by doing jail time.
Eligibility for an Expunction in Texas
Persons who are eligible to seek an expunction of records include: (1) those who have been acquitted or found “not guilty” of a crime, (2) those who have been convicted and later pardoned, (3) those who were not formally charged with a crime within a certain period of time, depending of the offense level, (4) those who have completed a pretrial intervention program (and have waited any period required in an agreement with the prosecutor), and (5) those for whom the statute of limitations has run out, meaning that the State has waited too long to file charges. However, there are some exceptions to these. An attorney experienced in criminal defense and expunctions will be able to help you determine whether you are eligible.
Because the expunction process is essentially a civil lawsuit against the various agencies that hold records relating to the arrest or prosecution, the first step after determining eligibility is to file a petition in a civil district court. In some counties, such as Harris County, the District Attorney’s office may agree to an expunction of any cases in which the person is eligible.
Other counties may have different procedures. After the petition is filed, the district clerk will issue citations to the various agencies and serve them with a copy of the petition. These agencies include the police department involved in the arrest, the district, county, or court clerk, the prosecutor’s office, the probation department, the jail, and the Texas Department of Public Safety, which keeps records of most crimes in Texas.
Assuming that the state agencies agree to the expunction, the next step is to prepare an order for the court to sign authorizing the destruction of the records. This order will contain identifying information that will help the above agencies locate the records that should be erased.
Signing Off on an Expunction
Before the court will sign an agreed order, it must be signed by the attorneys who represent the different agencies who will be required to erase their records. Many times, this includes the district attorney’s office, county attorney’s office, and/or city attorney’s office.
Once the signatures have been gathered, the order can be filed with the court for the judge’s signature. After the judge signs the order, copies of the signed order are sent to the various agencies so that they may begin the process of deleting the relevant records. The records should be erased from the various agencies’ records, and from any background checks within one month.
If the state agencies do not agree with the expunction, then a hearing will be set, and the court will determine whether the expunction should be granted.
Roger Jain is a dedicated trial lawyer who assists his clients in the following areas of practice: civil litigation, business law, criminal defense, juvenile law, estate planning and family Law.