What Is an Expungement?
An Expungement or, Expunction under Texas law is a legal action that will completely clear the record of a criminal offense
Most people refer to this action as an Expungement.
When an Expungement is granted:
- Every entity that has any record of the criminal offense is ordered to destroy the record
- The criminal offense expunged will never show up on a criminal background check
- People (who have received Expungements) are legally allowed to deny they have ever been arrested in interviews and on job applications and the background check results will support their answers
Is there any timeline someone has to wait before applying for this?
Found Not Guilty
If you are found not guilty at trial, you are immediately eligible for an Expungement. It does NOT happen automatically.
If you are found not guilty at trial and you never take action to clear your background of the arrest and court charge, you will always have it on your background.
Criminal Charge Dismissed
If your criminal charge is dismissed from court because you successfully completed a first-offender program, you are immediately eligible for an Expungement.
The only “waiting period” in this scenario is the time it takes to successfully complete the first-offender program.
Statute of Limitations (No First-Offender Programs)
If your criminal charge is dismissed for any other reason other than a first-offender program, you will need to wait out the Statute of Limitations for the specific offense you want to Expunge.
- Class A and B Misdemeanors have a Statute of Limitations of two (2) years
- Most felonies have a Statute of Limitations of three (3) years
- Many felonies have longer Statutes of Limitations, sometimes much longer
- Your Expungement Attorney will have to know the Statute of Limitations that applies to your specific situation.
Class C Misdemeanors: Deferred Adjudication Probation
Expungements are available on Class C Misdemeanors with shorter waiting periods. Unlike higher-level offenses, it is possible to serve a Deferred Adjudication Probation on a Class C offense and still receive an Expungement.
How to Shorten the Affect of the Statute of Limitations
There are circumstances wherein the waiting period can be shortened to less than the full period of the Statute of Limitations.
- Make an agreement with the prosecutors of the offense that they no longer need their records
- Accept less than a complete Expungement of all records
- If you are willing to allow the prosecutors and police to maintain their records of the offense, you can get an Expungement in less than the total time of the Statute of Limitations
- This can be a good option for felonies with long limitations periods
- You can get your record cleared for employment purposes while the authorities can keep their records (confidentially) should they be needed in the future
How does someone qualify for an Expungement?
To qualify* for an Expungement:
- A person must have either been found not guilty or had their criminal charges dismissed
- The person seeking Expungement must also have waited the full waiting period on the charge they want Expunged
*A person who served jail time or a period of court-ordered probation — that was not a first-offender program — is not eligible for Expungement.
How does an Expungement help someone and their reputation?
A granted Expungement makes it so that the criminal offense that was expunged legally never happened.
The Expungement Statute specifically authorizes:
- Expungement recipients can deny ever having had the charge
- Background checks will be completely free of offenses that have been expunged
- Therefore, interview answers denying crime and written answers on applications will be supported by a background check
Criminal charges on a background check can make it difficult to find work, housing and to get credit. A person can be denied government benefits, grants, and loans based on criminal history.
An Expungement removes the cloud of criminality from the person who was accused. When a person is restored to his or her law-abiding status, it becomes much easier to:
- Obtain employment
- Gain promotions
- Pursue better employment opportunities
- Acquire housing
- Receive credit for large purchases
Does it work for both Felony & Misdemeanors?
Expunctions are available for:
- Class C Misdemeanors
- Class B Misdemeanors
- Class A Misdemeanors
- All levels of Felony
Waiting periods for Expungement vary with the different levels of offense.
The Class C Misdemeanor is the only offense that you can serve a successful period of Deferred Adjudication Probation on and still be eligible for an Expungement.
Can you give me an example of how someone hired you for an Expungement, and how you helped them?
Nursing is a profession that is licensed by the State of Texas. The State Board of Nursing has access to criminal records for use in deciding whether or not to license an aspiring nurse. Because the Board of Licensing is very strict in who they will license, nursing schools are very strict in who they will admit into their program. They will not waste limited program space on a student who will not be licensed because she cannot pass a background check.
I recently had a young client charged with Leaving the Scene of an Accident. She was trying to turn around on a dark street in the middle of the night and she struck a van that was parked in the street. As it was the middle of the night and she was a young female all alone, she did not feel comfortable knocking on various doors at that hour to find the van owner and give him the bad news. She resolved to tackle that task first thing in the morning and with help.
Unfortunately, the police arrived at her door before she woke up. She never had the chance to find the van owner. Someone either saw the incident take place or got up early, saw the damage and called the police. My client told her story, but the police were not willing to accept it. Probable cause is a very low burden of proof and that is all that is required to make an arrest. So, she was arrested.
She hired me almost immediately. I went to work contacting both the police agency and the Intake Division of the local District Attorney’s Office. The government red tape made it a difficult and time-consuming endeavor, but ultimately, we got our client’s story impressed upon the decision makers. Charges were not filed.
We took the necessary steps to bar any future prosecution and sought an Expungement. The Expungement was granted at a hearing without significant resistance. Because of the time required to be sure charges were not filed, my client was not able to enroll in nursing school when she wanted to. However, because the record was Expunged, she was able to enroll in nursing school. Sh