Every arrest results in an arrest record. Even if your case is dismissed or you are found not guilty by a judge or jury, you will still have an arrest record. A dismissal or not guilty verdict does not automatically wipe the arrest records clean. Arrest or criminal records can cause major problems when it comes to job applications, credit applications, renting an apartment, purchasing a home, or professional licenses. An arrest record could hinder your career prospects, living arrangements, or educational aspirations. It can also affect the status of your security clearance or professional license -- like a medical license, nursing license, or pilot's license, among other collateral consequences.
But you may be eligible to wipe these records clean through a legal process known as expunction. Only certain legal outcomes make an arrest eligible for an expunction.
The question of whether your arrest situation is eligible to be expunged leaves many people guessing as to whether they are eligible. An experienced Texas criminal defense lawyer can discuss Texas expunction eligibility and walk you through the process step-by-step based specifically on your situation. Doug Murphy is a Board Certified criminal defense lawyer. Doug has the knowledge and experience in handling thousands of expunctions. He can help you with your expunction and can investigate and determine if you are eligible for one. Contact his office today to discuss your circumstances and to learn more about expunction in Texas.
What is an expunction in Texas?
The legal process of expunging your arrest and/or criminal record is known as “expunction” in Texas. An expunction is the complete destruction of all records--paper and electronic--of your arrest. An expunction is a different process and way better than just sealing your records. Sealing your records means the records still exist, but only the governmental agencies have access to these records--not the public. Sealing of records is completed through an “order of nondisclosure”. But an expunction does two very important things:
(1). An expunction order requires all law enforcement and government agencies to destroy, erase and purge all paper and electronic records relating to the expunged arrest. This means that there is zero record of the arrest. An expunction is, in effect, a legal time machine placing you back in time and restoring your record prior to the expunged arrest.
(2). Most importantly, an expunction order grants you the legal privilege of denying the fact that you have ever been arrested for the expunged arrest.
Who qualifies for expunction in Texas?
According to Texas Code of Criminal Procedure § 55.01, you may qualify for an expunction if you were “placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor.” In Texas, however, a distinction is made between persons who are entitled to an expunction and persons who are eligible for an expunction.
You are entitled to an expunction in Texas if
- you were acquitted of the crime with which you were charged
- you were convicted but later found to be innocent
- you were convicted but later pardoned
- you were charged with an offense but the case against you was later dismissed and the statute of limitations to reopen the case has expired, or
- you were arrested but never charged, and you satisfy any corresponding waiting period (see below).
You are eligible for an expunction under certain circumstances in Texas if
- you were tried and convicted at trial court but then acquitted by the court of criminal appeals or a court of appeals, or
- the attorney prosecuting the case recommends expunction.
Who does not qualify for expunction in Texas?
Not everyone or their respective records qualify for an expunction in Texas, even if you may initially qualify according to the qualifying criteria listed above. The court will deny expunction in the following circumstances:
- If you are an adult and you received deferred adjudication.
- If you are an adult and you received probation.
- If you jumped bail.
- If you have been convicted of a felony within five years of the arrest that you want to have expunged.
- If the charge filed against you was a felony and it was dismissed prior to the expiration of the statute of limitations -- at which time you must wait for the statute of limitations to expire before applying for an expunction.
- If the offense you want to be expunged is part of a “criminal episode” and charges are pending for a different crime or you were already convicted of a crime that occurred during the same alleged criminal episode. According to Texas Penal Code § 3.01, criminal episode means
means the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances:
(1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or
(2) the offenses are the repeated commission of the same or similar offenses.
With regard to criminal episode, many times when a person files a petition for expunction, the prosecutor may contest the petition at the hearing on the basis that the defendant was indeed convicted of a crime. The confusion comes with regard to “criminal episode.” You can be arrested at one time for multiple charges that occurred on different dates and not pursuant to a criminal episode.
For instance, in the Texas v. T.S.N. case, the defendant was arrested on the same date for two offenses that occurred on two different dates. One offense was misdemeanor theft and the other offense was aggravated assault with a deadly weapon. The defendant had pleaded guilty to the theft charge and was subsequently convicted. The defendant did not plead guilty to the assault charge and was subsequently acquitted. When the defendant moved the court to expunge the assault charge, the prosecution contested, arguing that the defendant had been found guilty of one of the two offenses with which she was charged.
The trial court allowed the expunction. The State appealed the trial court's decisions. The State argued that Article 55.01(c) of the Code of Criminal Procedure provides that a record cannot be expunged if all the charges flowing from the arrest are not eligible for expunction.
A court may not order the expunction of records and files relating to an arrest for an offense for which a person is subsequently acquitted, whether by the trial court, a court of appeals, or the court of criminal appeals, if the offense for which the person was acquitted arose out of a criminal episode, as defined by Section 3.01, Penal Code, and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.
A criminal episode, as stated above, includes three possible scenarios:
- The offenses -- different or the same -- were committed during one transaction or at one time.
- The offenses -- different or the same -- were committed on multiple occasions or at different times, but they are connected in some way.
- The offenses are the same or similar and were repeated on different occasions.
In the case of Texas v. T.S.N., the charges were two completely different offenses that occurred on two separate dates and were not related in any way. The Court of Appeals agreed: so long as the offense for which the defendant allegedly committed did not arise out of the same criminal episode, it can be expunged if it qualifies for the same. It does not matter if the defendant was arrested at the same time and charged with multiple offenses.
What crimes qualify for expunction?
As mentioned, most misdemeanors and felonies qualify for expunction so long as the person petitioning the court for expunction meets the criteria.
Misdemeanors and felonies can include but are not limited to the following:
- Felony DWI
- Underage DUI
- DWI Commercial Driver's License
- DWI Marijuana
- DWI Prescription Drugs
- DWI with a child passenger under 15
- Flying While Intoxicated
- Boating While Intoxicated
- Intoxication Assault
- Intoxication Manslaughter
- Open Container
- Drug Possession
- Criminally Negligent Homicide
- Vehicular Manslaughter
- Vehicular Assault
- White Collar Crimes
- Domestic Violence
- Prostitution & Solicitation
- Texting and Driving
- Hit & Run FSGI
- Hit & Run FSRA
- Evading Arrest
- Aggravated Assault
- Unlawful Restraint
- Injury to Child, Elderly, Disabled
- Deadly Conduct
- Obstructing a Highway
- Disorderly Conduct
- Terroristic Threats
Is there a waiting period for expunction in Texas?
If you qualify for expunction because you were acquitted, convicted but found to be factually innocent, or pardoned, then there is no waiting period to file for an expunction.
On the other hand, if you were arrested but never formally charged with the crime, you may be required to wait a specific period of time before you can file for expunction. This time period depends on the classification of the alleged crime:
- 180 days from the date of your arrest for a Class C misdemeanor
- One year from the date of your arrest for either a Class A or B misdemeanor
- Three years from the date of your arrest for a felony.
How do you obtain an expunction in Texas?
You must file a petition for an expunction in order to receive expunction relief. The process to apply for an expunction involves
- File a Petition for Expunction that formally asks the court to grant an Order for Expunction;
- Providing a Notice of Hearing so that the court can set a hearing on the matter;
- Notarizing the Petition at the time you sign it; and
- Filing the form with the district court according to the county in which you live or according to which court heard your case if the case was originally assigned to a court.
The expunction process really requires the expertise of an experienced lawyer skilled in handling expunctions. If you make an error, that error can lead to unfortunate consequences, like the denial of your expunction, and the preclusion of receiving relief of an expunction due to the error.
The petition requires specific information, including
- Personal identifying information
- The charged offense, the case number, the name of the court, how the case was resolved (i.e., dismissed, acquitted), and date it was resolved
- Date of the arrest
- Date of the alleged offense
- Name of the arresting agency (e.g., local police, sheriff's office, other)
- A list of all the agencies or other entities that may have a record of your arrest.
An Order for Expunction must already be drafted by either you or your attorney. At the time of the hearing and/or at the time the judge grants the expunction, this order must be presented for the judge's signature. A copy of the signed order should be provided to all relevant parties, including any agency or organization that may have records or files related to the offense that the judge just expunged.
Finally, once the Order for Expunction granting or denying the expunction is signed, your records -- arresting and/or criminal records -- will either be deleted or returned to the court clerk -- depending on the language in the Order for Expunction.
After an expunction is granted, is there anything else to be done?
If you want to be certain your arrest or criminal records have been erased, the agencies have 60 days to comply with the court's expunction order. So wait at least 60 days before requesting a criminal history from the Department of Public Safety. Review the history to make sure your arrest does not appear on it.
Can your DWI charge also be expunged?
Like most other misdemeanors or felonies, if you qualify according to the criteria listed above, then your DWI charge can be expunged.
If you want your DWI arrest and subsequent criminal proceedings expunged, then your best hope is a dismissal of the charges by the prosecutor or a "not guilty" verdict returned by a judge and/or jury. In many cases, especially for first-time offenders, defendants want to do what's easiest to get the whole matter over and to return to their daily lives. What you need to understand, however, is this: if you don't fight the DWI charge, life will not be the same. If you are convicted of a DWI, you will not be able to have it expunged. Plus, you will have to deal with both the penalties imposed by the court and the collateral consequences of a criminal record.
If, on the other hand, you hire the best DWI attorney in Houston to fight your DWI charge, then your chances to be able to have the arrest and charge expunged later are greater.
Doug Murphy is one of only two lawyers in Texas who is Board Certified in both criminal law and DWI defense. He is the kind of lawyer who fights to get your DWI or other criminal charges either dismissed prior to trial or acquitted at trial. He is well-known in the legal community for his skills and knowledge. He also holds the State and the jury accountable to the principle that you are not guilty unless proven beyond a reasonable doubt. Doug Murphy uses his insight, knowledge of the law and the prosecution, and strategy to build a strong defense for you. And if your charges are dismissed or you are acquitted at trial, then you can petition the court to expunge your records related to your arrest for a DWI or other criminal offense.
Contact an experienced criminal defense lawyer to help you with your Petition for Expunction
If you want to have your records expunged, you should consult with an experienced criminal defense attorney. The process can be intimidating and errors can result in the court denying your petition for expunction.
At Doug Murphy Law Firm, P.C., our legal team works hard to first get your charges either dismissed or you acquitted at trial. Then, we guide you throughout the process of having an and all relevant arrest and criminal records expunged. Our office is based in Houston, Texas, but we represent clients throughout the region, including the following counties:
- Austin County
- Bastrop County
- Brazoria County
- Colorado County
- Fayette County
- Galveston County
- Grimes County
- Harris County
- Fort Bend County
- Lavaca County
- Leon County
- Liberty County
- Madison County
- Matagorda County
- Montgomery County
- Waller County
- Walker County
- Washington County
- Wharton County
Contact our office today at (713) 229-8333 if you need legal representation to fight a DWI or criminal charge that you will eventually want to have expunged. But also contact our office today if you need assistance filing a petition for expunction for a charge that has already been dismissed or for which you have already been found not guilty. At Doug Murphy Law Firm, P.C., we have the experience, the insight, and the commitment to get results.