Expunction of Texas Criminal Records
Frequently, good people are convicted of criminal offenses that they wish had never occurred. Texas has a procedure for erasing criminal convictions, but the procedure is difficult and limited to a few situations. An expunction in Texas, also known as an expungement, is permitted when the person convicted can prove he or she never should have been convicted or arrested. So, for example, if police mistakenly arrested a person who had a similar name as another person who committed a crime, the innocent person would be allowed to seek expunction of the arrest records from all state files and databases, once the innocent person is able to convince police they arrested the wrong person. Likewise, if the innocent person is convicted in court and later is able to prove he or she was convicted improperly — because the police arrested the wrong person, or the jury found in favor of the innocent person and ordered acquittal — then the innocent person would have the right to seek expunction of the arrest, court proceedings, and conviction. Expunction means that Texas officials would erase all reference to the arrest and conviction from state databases and destroy all paper files and records.
Expunction does apply, however, to erase convictions or arrests when the right person was arrested and convicted. Therefore, if a person commits an offense and later pleads guilty to the offense or has a trial and is convicted, then that person is not entitled to expunction. The right person was actually convicted, therefore, the state record of arrest and conviction is actually accurate. This creates a huge problem for millions of Americans. Many people, because of youth or poor judgment, have received convictions for one offense or another, pled guilty, paid a fine, served probation or spent time in jail, and now find they cannot get a job because of the conviction. Unfortunately, Texas has no procedure to erase those arrests and convictions. They stay on a person's record for life.
The Texas expunction procedures are set out in Texas Code of Criminal Procedure Chapter 55.
Sealing Criminal Records in Texas
There is a second provision in Texas law that allows the records of certain types of offenses to be sealed. What this means is that, under certain circumstances and for certain offenses, a person can seek a court order to seal all government records pertaining to an arrest and sentence for that particular offense. Once the order is signed, all Texas agencies — including the county and district clerks and police departments — must remove the paper and electronic files and records pertaining to that arrest and sentence from public review, and move them to sealed files where they can only be viewed by court order or by law enforcement. The procedures are contained in Texas Code of Criminal Procedure Article 42.12, section 5.
Deferred Adjudication Probation vs. Regular or Straight Probation
To qualify for sealing of arrest and sentences, which is also known as nondisclosure, the person must have been placed on deferred adjudication probation and must have completed probation satisfactorily. Deferred adjudication probation is a special type of probation by which the person pleads guilty to the offense but is not actually convicted. Instead, the person is placed on probation, and if that person completes probation satisfactorily, then the person will never have a conviction. The record of probation still exists and is still a matter of public record.
Many employers mistakenly think that deferred adjudication probation is the same as a conviction. It is not. There is another type of probation, which is called regular probation or straight probation. In regular probation or straight probation, the person pleads guilty to the offense, does receive a conviction, and then is placed on probation. The sealed procedures — or nondisclosure procedures — do not apply to regular probation or straight probation. Therefore, if one received a conviction for an offense and was placed on regular probation or straight probation, one would not be eligible for sealing those records or for a nondisclosure order.
How an Attorney Can Help
The procedures for expunction or a nondisclosure sealed order are difficult and extensive. First, these procedures require filing a new lawsuit in the state court, which therefore requires a filing fee and other document preparation expenses. Second, most Texas district attorneys oppose these requests. Therefore, the attorney seeking expunction or sealed records must prepare carefully and work to overcome the objections of prosecutors, which will require one or more court hearings.
If you believe you or someone you know qualifies for expunction or a nondisclosure sealed order, please call or email Mr. Volberding. He will examine your case and tell you whether you qualify and how much the procedures would cost.