POSTED BY: ADAMO / ADAMO
In our line of work there is no greater satisfaction than hearing a prosecutor say a case has been “dismissed” or a jury saying “not guilty”.
The battle however does not end in the courtroom. A dismissal or not guilty is only the first part of clearing your name.
In this “age of information” a non-expunged dismissal or not guilty is no better than a conviction for purposes of a person’s record. Failing to take advantage of erasing or sealing your records will result in unwanted explanations with employers, landlords, cops, and anyone with access to a computer.
So let’s break it down.
WHAT IS A “CRIMINAL RECORD?
A record is the collection of public information. A criminal record will show the cause number of your case/s, the offense charged, your name, and the disposition (i.e. final result). See Example:
Type of Action/Offense
|1313131313 CRIMINAL-Complete (C)||The State of Texas vs. Walter White (SPN: XXXXXXX) (DOB: 00/00/0000||00/00/00||17||Defendant:Disposed (D)Disposition:Dismissed (DISM)||
WHO MAINTAINS THE RECORDS?
The Department of Public Safety (DPS) is the “hub” for all criminal history information collected in the state of Texas. Arrests and case related information are reported to the Texas Crime Information center maintained by DPS. Additionally, either the original reporting agency or DPS will pass along the information to the National Crime Information Center overseen by the FBI.
WHO HAS ACCESS TO THE RECORDS?
These records are available to the general public via open records requests and online portals of court record information (i.e. District Clerk Websites). The records are sold to private vendors of criminal history record information, private background check companies, mug-shot websites and anyone else willing to spend a little money. Officers and district attorneys have access to this information as well.
IS AN EXPUNCTION AND NON-DISCLOSURE THE SAME?
This will be explained in greater detail below. The only consistency is they are both remedies limiting access to criminal history/record information.
IS THERE ANYTHING I CAN DO TO ASSIST?
Obtain your secure criminal history from DPS. This will help us to identify your eligibility for either an expunction or non-disclosure.
Use this link to obtain your criminal history: https://records.txdps.state.tx.us/DpsWebsite/CriminalHistory/About.aspx
OKAY, I GET IT. AM I ELIGIBLE FOR AN EXPUNCTION?
Expunctions are governed by Tex. Code Crim Proc. Art. 55.01.
|YOU ARE ELIGIBLE IF:||YOU ARE NOT ELIGIBLE IF:|
|Acquittal (i.e. not guilty verdict).||You received court ordered community supervision under Tex. Code Crim. Proc. Art. 42.12 (i.e. deferred adjudication or probation), unless the offense was a Class C Misdemeanor.|
|If you have been acquitted of an offense but convicted or remain subject to prosecution for at least one other offense. Also known as the criminal episode exception.|
|Unfiled Cases. If you were arrested but no charges have been filed.||The records relate to an arrest/warrant for a probation violation.|
|Successful Completion of Pretrial Intervention or Diversion.||The records relate to the suspension of a driver’s license.|
|Posthumous expunction. Where a close relative of the deceased where the defendant was acquitted, pardoned, or found actually innocent.||The records of financial transactions.|
|Bail – Jumping.|
|Acquitted on appeal by the court of appeals.|
|*The Statute of Limitations has run.|
PRACTICE TIP: Typically you are not eligible for an expunction until the statute of limitations has run, however more and more agencies are not opposing expunctions filed before that time. This is especially true with misdemeanor offenses.
I AM ELIGIBLE, HOW DOES THE EXPUNCTION PROCESS WORK?
Briefly, a petition for expunction is drafted and filed with the court. The court issues a hearing date. Any agencies in possession of records pertaining to your arrest are served and notified of the petition. Absent an objection an Agreed Order of Expunction can be signed and filed with the court. If a party objects a hearing will be heard. Once signed by the judge all agencies listed in the petition are ordered to destroy their records or return the records to the court to be destroyed. The order prohibits law enforcement and other state agencies from releasing, maintaining, disseminating or using the records for any purpose.
MY RECORDS HAVE BEEN EXPUNGED, IF I AM ASKED “HAVE I EVER BEEN ARRESTED”, HOW DO I ANSWER?
NO! You are granted the right to say “No” to the question, have you ever been arrested or charged with crime. You can also answer the question “Have you ever had a criminal charge expunged?” with a profound “NO”.
There is one exception.
If you are testifying under oath in a criminal proceeding. You can not say “No”, but can say “The matter in question has been expunged”. See Tex. Code Crim. Proc. Art. 55.03.
I AM NOT ELIGIBLE FOR AN EXPUNCTION, BUT MAY BE ELIGIBLE FOR A NON-DISCLOSURE. WHAT IS THE DIFFERENCE?
The primary difference is an expunction is the destruction or erasing of your records. A non-disclosure results in “sealing” your records. With a non-disclosure your records are blocked from the public. Law enforcement, district attorneys, certain state agencies and licensing boards still have access to the records.
I SUCCESSFULLY COMPLETED DEFERRED ADJUDICATION, AM I ELIGIBLE FOR A NON-DISCLOSURE?
Non-Disclosures are governed by Tex. Gov’t Code Section 411.081.
|YOU ARE ELIGIBLE IF:||YOU ARE NOT ELIGIBLE IF:|
|You have successfully completed deferred adjudication||You have been previously convicted or placed on deferred for:-An offense requiring registration as a sex offender;-Aggravated kidnapping;-Murder, Injury to a Child, Abandoning or Endangering a Child, Violation of a Protective Order, Stalking; or-An offense involving family violence|
|You have been convicted or placed on deferred adjudication for any offense (not including Class C misdemeanors) during the term you were on deferred or within certain time periods.|
IT SEEMS I AM ELIGIBLE FOR A NON-DISCLOSURE. ARE THERE WAITING PERIODS?
|Most Misdemeanors||Eligible for Non-Disclosure immediately upon successfully completing deferred adjudication.|
|Certain Misdemeanors:-Kidnapping and Unlawful Restraint;-Sexual Offenses;-Assaultive Offenses;-Offenses against the family;-Disorderly conduct, obstructing, harassment, interference with a 911 call;-Weapons||Eligible for Non-Disclosure TWO YEARS after successfully completing deferred adjudication.|
|Felonies||Eligible for Non-Disclosure FIVE YEARS after successfully completing deferred adjudication.|
PRACTICE TIP: The waiting periods apply to the offense for which you plead guilty to and were placed on deferred adjudication for, not the offense for which you were originally charged. For example: Walter White is arrested for Felony Drug Possession. His attorney, Saul, negotiates a plea bargain allowing Mr. White to plead guilty to misdemeanor drug possession and receive deferred adjudication. Upon the successful completion of deferred adjudication Mr. White is immediately eligible to non-disclose his record (as opposed to waiting five years).
HOW DOES THE PROCESS WORK?
A petition for non-disclosure is drafted and filed with the court. A hearing is set. If the court finds it is in the “best interest of justice” for the records to be sealed, the judge will sign the petition’s order requiring DPS to notify all law enforcement agencies, jails, other detention facilities, magistrates, courts, prosecuting attorneys, correctional facilities, central state depositories of criminal records, and other officials or agencies subject to the order of the pertinent records to be sealed.
MY RECORDS HAVE BEEN NON-DISCLOSED OR SEALED, IF I AM ASKED “HAVE I EVER BEEN ARRESTED”, HOW DO I ANSWER?
While you can not deny being arrested (as you can with an expunction), you do not have to disclose the arrest and prosecution in applications for employment.
THE BOTTOM LINE
Erasing (expunction) or sealing (non-disclosure) your records is absolutely essential to keep from reliving the day you were arrested. A clean slate can mean the difference between having a job, obtaining a license, having a place to live, or even traveling to another country. Take advantage of this immeasurable tool.
Law Office of ADAMO / ADAMO