Expunction & Nondisclosure
There Are Three Main Categories of Expunction
Expunction results in the destruction of all records generated pursuant to an arrest. “Arrest” includes not only physical confinement of a person, but also noncustodial arrest, which is submission to authority by appearing in court. So, an actual arrest, in the traditional sense, is not required. The essential elements of any Expunction are that the criminal charge was ultimately dismissed, without either a final conviction or any court-ordered community supervision (probation). With this basic understanding, there are 3 categories of Expunction, the qualifications for each depending on how and why the case was dismissed.
Expunction Due to Acquittal or Pardon
Since the purpose of the Expunction statutes is to provide relief to people who were, essentially, wrongfully arrested or charged, winning a case at trial would seem to be an obvious situation that should qualify for Expunction. Imagine enduring a lengthy jury trial resulting in those famous words: “We the jury find the Defendant, not guilty.” After that grueling process, it seems only fair to allow that person to Expunge all records of that case A person acquitted of a criminal charge should not be burdened by a criminal record of a charge of which they were found not guilty. A pardon from the Governor has the same effect. Although a trial may not have occurred, pardons are as good as an acquittal and all records generated by the criminal charge can be Expunged.
Expunction Due to a Dismissal or No-Bill
Qualifying for Expunction is more complicated when the case never goes to trial and is dismissed either because the arrested person was never formally charged, or the charges were dismissed before trial. There are 2 main requirements for seeking an Expunction in this category. First is that the person is “released” from the charge without a conviction or any court-ordered community supervision (probation), and second either the statute of limitations has passed, or the indictment or information was dismissed and a waiting period has passed.
First, release from criminal charge without conviction or probation. A person seeking an Expunction in this category has the burden of proof and must prove that they were released from the charge without conviction or community supervision. Remember, only the “wrongfully accused” are entitled to Expunction. This relief was never intended for people who were convicted of crimes or those who served probation, even without a conviction. Therefore, even deferred adjudication prohibits Expunction, except with traffic tickets.
The second requirement is that either the statute of limitations has passed, or the indictment or information was dismissed, and a waiting period has passed. Most, but not all criminal charges have a statute of limitations. They generally range from 2 years to 10 years, depending on the severity of the charge. If charges are not filed within the limitations period, the State is prohibited from bringing the charges and Expunction of all records generated pursuant to the arrest can be Expunged.
If the statute of limitations has NOT passed, Expunction is still allowed if the indictment or criminal complaint is dismissed prior to trial, and if a “waiting period” has passed. However, the indictment or criminal complaint must be dismissed only for specific reasons. A person seeking Expunction under this sub-category must show: 1) they completed an authorized pretrial intervention program or veteran’s court program; 2) the presentment of the indictment or criminal complaint was made because of mistake, false information, or other similar reason indicating the absence of probable cause at the time of the dismissal to believe the person committed the offense; or 3) it was void. If either scenario can be demonstrated by the person seeking the Expunction, the records can be Expunged but only after the expiration of a statutory waiting period; 180 days for Class C misdemeanors (Traffic Tickets), 1 year for all other misdemeanors, and 3 years for all felonies.
Expunctions in this category can get a bit complicated. We strongly suggest that you seek the advice of a qualified attorney before attempting an Expunction.
Expunction Due to Identity Theft or False Information
Identity theft is a growing problem, not only in Texas but across the country. These days, it is not uncommon for a person to discover that they have a criminal record because of crimes committed by someone else who stole their identity or because of false information due to a clerical error. Since the primary purpose of the Expunction laws is to erase all records of arrests when a person is wrongfully arrested, it only makes sense to Expunge all records when a person is falsely charged with a crime due to a stolen identity or false information due to a clerical error. Unlike Expunctions in the other 2 categories, which require the destruction of the records, “expunction” in this category provides for the Expunction of only the “personal identifying information” from the arrest record. Personal information includes name, address, date of birth, driver’s license number and social security number. So, the records are not destroyed, but the personal identifying information is deleted.
In the event of a stolen identity, a person may get an Expunction if: 1) the information identifying the petitioner was falsely given by the arrested person without consent, and 2) the only reason the information is in the record is that the arrested person falsely gave that information. This is the classic “stolen identity” situation. Person “A” gets arrested for a crime, but during the arrest, he identifies himself as Person “B,” who later learns that he has a false criminal record due to the identity theft by Person “A.” Until the law changed in 2017, you could not Expunge the records of Person “B” above. The reason was that Expunction laws applied to all records generated pursuant to an “arrest.” With a criminal record the result of a stolen identity, as with the case above, the victim, Person “B,” did not get “arrested.” Instead, the person who stole their identity, Person “A” was the one who got arrested. Since Person “B,” the victim of the stolen identity, was never “arrested,” the criminal record in their name could not be Expunged. This loophole was changed in 2017 to add this new type of Expunction.
In the event of an arrest due to a clerical error, a person may get an Expunction if: 1) he or she was arrested; and 2) the arrest was solely as a result of identifying information that was inaccurate due to a clerical error. The classic example of this is when a warrant for arrest is signed by a judge, but it contains the identity of the wrong person.
Although the legislature corrected the loophole referenced above, another big one still exists. As it stands now, the “Stolen Identity” category of Expunction applies only when there is the “false” use of “another’s” information. Left out of the Expunction laws is the situation where a person is falsely arrested due to any other reason. For example, if a person is falsely arrested for shoplifting, due to, for example, the mistake of the store owner, those records cannot be expunged because there was no “false” information of “another” involved.
A petition for Expunction with the basis of Identity Theft must include, not only the standard identification information required of all Expunction petitions, but also 1) the petitioner’s authenticated fingerprint records, and 2) either a statement that the petitioner was not the person arrested and did not consent to the use of his identification information by the arrested person or a statement that he was arrested solely as a result of inaccurate identifying information due to a clerical error.
If you have a criminal record, an Expunction may be possible. The Expunction laws in Texas are very complex and require a detailed analysis to determine if Expunction is a viable option. If you would like to have your criminal record cleared, please call us as soon as possible. We are available to answer any questions that you may have or to get started Expunging your criminal and arrest records. Please, don’t’ wait. call us now!
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