UPDATED 7/6/2021, Original Post: November 1, 2017
UPDATED October 13, 2021, Original Post: November 1, 2017 Expungment/Criminal Record Sealing
Alexander Pope wrote, “To err is human.” Which is true – we all make mistakes.
Most of the time, we learn from our mistakes and continue on with our lives. Sometimes, however, our mistakes follow us around wherever we go. When you are arrested, charged, or convicted of a crime, it shows up on your criminal record, which is available for anyone to see. Regardless of how you have changed and improved your life after this “mistake,” your criminal history can continue to haunt your employment, educational, housing, and financial opportunities for years to come.
So how can you finally put your past behind you and move forward with a clean slate?
Depending on the offense and the circumstances surrounding that offense, you might be eligible to have your record sealed or expunged. A sealed record means the public will be unable to see it, but law enforcement officials and other government agencies will still have access. When your record is expunged, it will be entirely eliminated – as if it never existed in the first place.
Let me begin our discussion by being clear about a misconception: Nothing automatically comes off your criminal record. Many people call us saying their case was dismissed or dropped to a ticket and they “assumed” their criminal record was cleared. Please understand that you may be completely innocent and your case may have been dismissed or you were found not guilty at a jury trial. However, your arrest record remains public record unless you take legal actions to clear your criminal record.
Let’s look at the requirements for sealing or expunging your criminal record and how you can get the process started if you’re eligible.
Can I Seal My Texas Criminal Record?
In Texas, if you want to seal your criminal record, you will need to seek an order of nondisclosure.
As mentioned above, an order of nondisclosure prohibits law enforcement or courts from disclosing your criminal record related to the order. It also releases you from having to disclose your criminal history related to the order on any type of application. In fact, if you have an order of nondisclosure, you do not even have to mention the charge or arrest to anyone, by law.
While all of this might sound great, an order of nondisclosure only applies to certain criminal offenses and situations. To be eligible, you will need to meet six conditions:
- You must have been placed on deferred adjudication, which means you were not considered to be convicted for the offense. If you were placed on straight probation, you were deemed by Texas criminal law to have been convicted and you will not be eligible for an expunction or non-disclosure. Make sure your probation was for a deferred adjudication!
- You need to have completed your deferred adjudication successfully. If you started a deferred adjudication probation and violated the terms and conditions of your probation and were subsequently sentenced to jail time or convicted and placed on a straight probation, Texas law will prohibit you from being eligible for a non-disclosure.
- Your offense must be a qualifying criminal offense under Texas criminal law. In other words, your deferred adjudication cannot have been murder; capital murder; aggravated kidnapping; injury to a child, elderly individual, or disabled individual; abandoning or endangering a child; stalking; violation of court order or bond in family violence, sexual assault or abuse, stalking, or trafficking case; an offense that requires sex offender registration; or an offense involving family violence.
- You cannot have any of the above offenses on your criminal record – even if you are not seeking a nondisclosure order for that offense.
- You must wait the requisite amount of time for your offense. Texas criminal law requires you to wait the term of the statute of limitations for the crime you accepted a deferred adjudication. If your deferred adjudication was for certain felony offenses, you must wait five years after your felony discharge or dismissal. If your deferred adjudication was for eligible misdemeanor crimes, you must wait two years for misdemeanors under Chapter 20, 21, 22, 25, 42, or 46 of the Texas Penal Code; and there is no waiting period for other misdemeanors.
- You cannot have been convicted of or placed on deferred adjudication for any other offenses from the date you were placed on deferred adjudication until the date you were discharged or dismissed.
- Is the non-disclosure “in the interest of justice?” –This is critical! Under Texas non-disclosure laws, the judge must rule that your non-disclosure would be in the interest of justice to grant. How is this determined? One way is to see if you were arrested, charged and convicted of a crime while you were still on deferred adjudication or during the waiting period after your deferred adjudication was completed. While on your deferred adjudication, you MUST NOT get arrested and charged with new criminal offenses. If you are arrested and charged, those charges must be dismissed. If you were to take a new probation or receive a jail sentence for a separate criminal offense during probation or during the waiting period after the completion of your deferred adjudication, the judge would likely rule that it is not in the interest of justice to grant your request. Why? Because the judge will feel you did not learn your lesson and that is proven by the fact more crimes were committed after the term of your deferred adjudication probation.
Critical Points To Know For A Non-Disclosure
As mentioned above, there are certain Texas crimes that are ineligible for a non-disclosure. Frequently, we receive phone calls from citizens seeking to have their arrest and criminal case sealed from their record only to be very disappointed to hear that they are not eligible. Many criminal defense attorneys are not up to date on non-disclosure laws and clients believe that because they were not convicted, they should be entitled to a non-disclosure.
You must NEVER take a deferred adjudication probation to domestic violence cases and sex-based offenses. Although you will not be considered “convicted” under the law, Texas law prohibits eligibility for a non-disclosure for these types of crimes. This is especially important that you hire an experienced and aggressive criminal defense attorney that is an expert at non-disclosures and expunctions in Texas. Failure to have an in-depth understanding of non-disclosure laws could lead to a poor decision on a plea deal that could cost you your future.
What If You Have Multiple Cases? Can You Qualify For A Non-Disclosure?
A tricky situation arises when you are charged with multiple criminal charges. Your criminal defense attorney must be diligent to make sure that all your cases are treated the same way at the time of a possible plea or dismissal. In other words, if your multiple charges are out of the same criminal episode, you must be careful to resolve all cases the same way. For instance, if you received a shoplifting and resisting arrest charge but received deferred adjudication on one charge but received a dismissal on the other charge, you would not be eligible to get either charged sealed or expunged from your record because they were treated differently. In this situation, you should take the deferred adjudication on both charges at the same time in order for you to be eligible for a non-disclosure in the future.
Can I Get My Texas Criminal Record Expunged?
An expunction means that information and details pertaining to an arrest, charge, or conviction is permanently destroyed from your criminal record and you can deny the event ever happened.
You could be eligible for an expunction if:
- You were arrested for an offense but never charged;
- You were facing criminal charges but the case was ultimately dismissed;
- You were convicted of certain qualifying juvenile offenses;
- You were convicted as a minor for certain alcohol offenses;
- You were convicted for Failure to Attend School;
- An arrest, charge, or conviction is on your record because of identity theft and it can be proven that someone else used your identity;
- You were convicted of a crime that was later acquitted by the trial court or the Criminal Court of Appeals; or
- You were convicted of a crime that was later pardoned by the Texas Governor or U.S. President.
In addition to the above requirements, you cannot seek an expunction if:
- You received deferred adjudication or probation;
- You were convicted of a felony within five years of the arrest you want expunged;
- The offense was part of a criminal episode; or
- The statute of limitations for the felony charge hasn’t expired.
Critical Issue For Expunctions
Your criminal case has been dismissed! You are so excited to finally put this behind you. You immediately speak to your criminal defense lawyer and say you are ready to get your arrest and case records expunged immediately.
Unfortunately, for most criminal offenses, you must wait the statute of limitations. This is the one big issue that many attorneys and clients miss when they are seeking an expunction. For most crimes, there is a 2 – 5 year waiting period before you are eligible to file for an expunction. For most misdemeanor crimes, you must wait 2 years before you are eligible for an expunction. Most felony crimes are eligible as quickly as 3 years for an expunction but some felonies can take much longer – you need to make sure and consult an experienced expunction attorney regarding your case.
Make sure you are working with a criminal attorney that knows the rules for expunctions so that you do not make the mistake of wasting time and money on a filing fee and being denied.
How Long Does It Take To Clear My Criminal Record?
Now that we have discussed the importance of clearing your criminal record by an expunction or non-disclosure, let’s examine the time frame it takes to complete the process.
Depending upon the county in Texas you are filing in, it can take 30-90 days to complete your expunction or non-disclosure. Your criminal attorney must first file a petition for expunction or petition for non-disclosure outlining the fact that you qualify to clear your criminal record under the law. Upon completion of the filing, there must a hearing that your criminal defense attorney will attend to seek approval from the judge in District Court.
After successfully completing the hearing, your expunction attorney must then make certain that the appropriate agencies are contacted to ensure their compliance with the court order. For example, it is important that Public Data.com, Texas Department of Public Safety, FBI and local police departments and municipalities are provided copies of the court orders to ensure the records are destroyed or sealed, as provided by law.
How Much Does It Cost To Clear My Criminal Record?
Each county in Texas charges a different filing fee. However, normal filing fees for expunctions and non-disclosures range from $250 – $500. For example, Fort Worth, Texas in Tarrant County, Texas currently requires a $425 filing fee for an expunction.
Hire a Knowledgeable Texas Attorney to Get Your Record Sealed or Expunged
Department of Public Safety, FBI and local police departments and municipalities are provided copies of the court orders to ensure the records are destroyed or sealed, as provided by law.
How Much Does It Cost To Clear My Criminal Record?
Each county in Texas charges a different filing fee. However, normal filing fees for expunctions and non-disclosures range from $250 – $500.
Hire a Knowledgeable Texas Attorney to Get Your Record Sealed or Expunged
While you can prepare and file the necessary petitions on your own to get your record sealed or expunged, it is highly advised that you hire a knowledgeable Texas attorney who can ensure not only that you are eligible, but also that your paperwork is handled properly and in a timely manner.
Reach out to an experienced Texas attorney to get your record sealing and expunction questions answered and to get the process started today. At the Fulgham Law Firm, we have handled hundreds, if not thousands, of expunctions and non-disclosures and would be happy to provide you a free consultation to determine if you are eligible for an expunction or non-disclosure. Call now!
About the Author:
Brandon Fulgham has an in-depth understanding of both Texas law and Texans themselves. Before practicing law here, he received his undergraduate degree from TCU, and his law degree from South Texas College of Law in Houston. After graduation, he worked in District Attorneys’ offices as a prosecutor, building cases designed to put people behind bars. Now, he uses that knowledge to protect the rights of people in and around Fort Worth, making sure they receive the strongest possible defense when they find themselves on the wrong side of the law. He has been recognized for his work by The National Trial Lawyers, Fort Worth Magazine, and others.