Expunction

From the Law Office of Alison Grinter in Dallas, Texas

1 What is Expunction?
2 Who can Get an Expunction?
3 What Has to be Done?
4 Statute
5 Notes

What is Expunction?

Expunction is a way to clean up a person's criminal record. An arrest that has been expunged is deleted completely. The person can deny ever having been arrested, and if asked about it under oath, need only say "the matter has been expunged." Expunction is definitely the best option for repairing someone's criminal record, but very few people are elligible to receive an expunction.

Who can Get an Expunction?

You can only get an expunction if your case was dismissed, no-billed, never filed, quashed, deferred adjudication (Class C Misdemeanor only), acquitted, pardoned, or was charged against you only as a result of identity fraud (someone else was arrested under your name), or while you were a minor (Class C Misdemeanor only). But there are other conditions as well.

Type of Case	Disposition of the case:	AND:
Class C Misdemeanor	Deferred Adjudication	Successful completion of the deferral period
Misdemeanor	No longer pending, no conviction, no Deferred Adjudication, no Probation (case was dismissed, quashed, or never filed)	Defendant was not convicted of any felony within 5 years before the arrest Statute of Limitations has run out.
Felony	No indictment has been presented against the defendant for any offense arising out of the arrest incident.	Defendant was not convicted of any felony within 5 years before the arrest Statute of Limitations has run out.
Felony	Indictment was dismissed or quashed	Defendant was not convicted of any felony within 5 years before the arrest. Statute of Limitations has run out Court finds that the indictment was dismissed or quashed because it was void or presented by mistake, based on false information, or other similar reason that indicates a lack of probable cause to believe the defendant committed the offense.
Felony or Misdemeanor	Found NOT GUILTY at trial or Convicted, then later acquitted by the Court of Criminal Appeals.	No additional requirements
Felony or Misdemeanor	Defendant is granted a Pardon	No additional requirements
Felony or Misdemeanor		The only reason the defendant's name and identifying information is associated with this offense is that another person was arrested under the defendant's name.
Class C Misdemeanor	Conviction	Defendant was younger than 17 at the time of the conviction Offense is NOT Public Intoxication or covered under the Texas Alcoholic Beverage Code ch. 106 (provisions relating to age), Health and Safety Code ch. 161 (public health provisions), or Education Code §25.094 Failure to Attend School
Failure to Attend School	Conviction	Convicted of not more than one violation Application for Expunction made after the defendant's 18th birthday

What Has to be Done?

A petition for expunction must be filed in the county of the arrest, or in the municipal or justice of the peace court for Class C Misdemeanor offenses. The prosecutor's office will decide whether it wants to oppose the petition, and will file a response with the court. A hearing will be set, and both parties will be heard, and the judge will decide whether the defendant is entitled to an expunction. If the judge grants the expunction, she will sign an order for expunction and it will be sent to all of the police and law enforcement agencies that have records of the case, ordering them to destroy and/or send the records to the defendant. 30 days after the order is signed, it is final, and people or entities violating the order are subject to contempt of court for revealing any information contained in the records.

Statute

Art. 55.01. RIGHT TO EXPUNCTION.

(a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:
     (1) the person is tried for the offense for which the person was arrested and is:
          (A) acquitted by the trial court, except as provided by Subsection (c) of this section; or
          (B) convicted and subsequently pardoned; or
     (2) each of the following conditions exist:
          (A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:
               (i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or
               (ii) the court finds that the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;
          (B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor; and
          (C) the person has not been convicted of a felony in the five years preceding the date of the arrest.
          (a-1) Notwithstanding Subsection (a)(2)(C), a person's conviction of a felony in the five years preceding the date of the arrest does not affect the person's entitlement to expunction for purposes of an ex parte petition filed on behalf of the person by the director of the Department of Public Safety under Section 2(e), Article 55.02.
(b) Except as provided by Subsection (c) of this section, a district court may expunge all records and files relating to the arrest of a person who has been arrested for commission of a felony or misdemeanor under the procedure established under Article 55.02 of this code if the person is:
     (1) tried for the offense for which the person was arrested;
     (2) convicted of the offense; and
     (3) acquitted by the court of criminal appeals.
(c) 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 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.
(d) A person is entitled to have any information that identifies the person, including the person's name, address, date of birth, driver's license number, and social security number, contained in records and files relating to the arrest of another person expunged if:
     (1) the information identifying the person asserting the entitlement to expunction was falsely given by the person arrested as the arrested person's identifying information without the consent of the person asserting the entitlement; and
     (2) the only reason for the information identifying the person asserting the entitlement being contained in the arrest records and files of the person arrested is that the information was falsely given by the person arrested as the arrested person's identifying information.
Added by Acts 1977, 65th Leg., p. 1880, ch. 747, Sec. 1, eff. Aug. 29, 1977.
Amended by Acts 1979, 66th Leg., p. 1333, ch. 604, Sec. 1, eff. Aug. 27, 1979; Acts 1989, 71st Leg., ch. 803, Sec. 1, eff. Sept. 1, 1989; Subsec. (2) amended by Acts 1991, 72nd Leg., ch. 14, Sec. 284(53), eff. Sept. 1, 1991. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 7.02(a), eff. Sept. 1, 1993; Acts 1999, 76th Leg., ch. 1236, Sec. 1, eff. Aug. 30, 1999; Subsec. (a) amended by Acts 2001, 77th Leg., ch. 1021, Sec. 1, eff. Sept. 1, 2001; Subsec. (d) added by Acts 2001, 77th Leg., ch. 945, Sec. 1, eff. June 14, 2001; Subsec. (a) amended by Acts 2003, 78th Leg., ch. 1236, Sec. 1, eff. Sept. 1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 1309, Sec. 1, eff. September 1, 2005.