Expungement Legal Code

Parameters For Deferred-Adjudication Nondisclosure Orders

The plea must have been guilty or no contest. (If you entered a plea of not guilty and were acquitted in trial, you would be eligible for an expunction rather than an order of nondisclosure.)

Excluded offenses:
• murder
• aggravated kidnapping
• injury to a child/elderly person
• abandonment/endangerment of a child
• violation of a protective order
• stalking
• sex offenses
• family violence

2. The following misdemeanors have a two year waiting period:
• Kidnapping/Unlawful Restraint
• Assaults (family violence cases are excluded)
• Offenses Against the Family that are not otherwise excluded
• Cases prosecuted under Texas Penal Code Chapter 42
• Weapons Offenses under Texas Penal Code Chapter 46

3. All non-excluded felonies have a five-year waiting period.

4. For “waiting period offenses,” the defendant may not have been convicted or received deferred adjudication for a new offense (other than a fine-only traffic offense) during the waiting period.

5. Even where no statutory preclusion exists, the state may oppose any petition for nondisclosure based on the “best interest of justice.”

Governmental agencies (police, prosecutors, etc.) and quasi governmental entities will still have access to the records of your deferred. For any profession licensed by the State of Texas (teaching, nursing, etc.) the licensing board for that profession will still have access to records of your deferred. But take heart, criminal cases that have been disposed of with a successfully completed term of deferred adjudication probation are now considered by the State of Texas for the granting of a full pardon. Please see below for information regarding pardons.

Article 55.01. Right To Expunction

  1. 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:
      1. acquitted by the trial court, except as provided by Subsection (c); or
      2. convicted and subsequently:
        1. pardoned for a reason other than that described by Subparagraph (ii); or
        2. pardoned or otherwise granted relief on the basis of actual innocence with respect to that offense, if the applicable pardon or court order clearly indicates on its face that the pardon or order was granted or rendered on the basis of the person’s actual innocence; or
    2. 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 the offense, unless the offense is a Class C misdemeanor, provided that:
      1. regardless of whether any statute of limitations exists for the offense and whether any limitations period for the offense has expired, an indictment or information charging the person with the commission of a misdemeanor offense based on the person’s arrest or charging the person with the commission of any felony offense arising out of the same transaction for which the person was arrested:
        1. has not been presented against the person at any time following the arrest, and:
          1. at least 180 days have elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a Class C misdemeanor and if there was no felony charge arising out of the same transaction for which the person was arrested;
          2. at least one year has elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a Class B or A misdemeanor and if there was no felony charge arising out of the same transaction for which the person was arrested;
          3. at least three years have elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a felony or if there was a felony charge arising out of the same transaction for which the person was arrested; or
          4. the attorney representing the state certifies that the applicable arrest records and files are not needed for use in any criminal investigation or prosecution, including an investigation or prosecution of another person; or
        2. if presented at any time following the arrest, was dismissed or quashed, and the court finds that the indictment or information was dismissed or quashed because the person completed a pretrial intervention program authorized under Section 76.011, Government Code, 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 the indictment or information was void; or
      2. prosecution of the person for the offense for which the person was arrested is no longer possible because the limitations period has expired.

a-1. Notwithstanding any other provision of this article, a person may not expunge records and files relating to an arrest that occurs pursuant to a warrant issued under Section 21, Article 42.12.

a-2. Notwithstanding any other provision of this article, a person who intentionally or knowingly absconds from the jurisdiction after being released under Chapter 17 following an arrest is not eligible under Subsection (a)(2)(A)(i)(a), (b), or (c) or Subsection (a)(2)(B) for an expunction of the records and files relating to that arrest

  1. Except as provided by Subsection (c), 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 if:
    1. 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 or, if the period for granting a petition for discretionary review has expired, by a court of appeals; or
    2. an office of the attorney representing the state authorized by law to prosecute the offense for which the person was arrested recommends the expunction to the appropriate district court before the person is tried for the offense, regardless of whether an indictment or information has been presented against the person in relation to the offense.
  2. 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, a court of appeals, 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.
  3. 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.

Article 55.01. Right of Close Relative to Seek Expunction on Behalf of Deceased Person

  1. In this article, “close relative of a deceased person” means the grandparent, parent, spouse, or adult brother, sister, or child of a deceased person.
  2. A close relative of a deceased person who, if not deceased, would be entitled to expunction of records and files under Article 55.01 may file on behalf of the deceased person an ex parte petition for expunction under Section 2 or 2a, Article 55.02. If the court finds that the deceased person would be entitled to expunction of any record or file that is the subject of the petition, the court shall enter an order directing expunction.
 

Article 55.02. Procedure For Expunction

Sec. 1. At the request of the defendant and after notice to the state, the trial court presiding over the case in which the defendant was acquitted, if the trial court is a district court, or a district court in the county in which the trial court is located shall enter an order of expunction for a person entitled to expunction under Article 55.01(a)(1)(A) not later than the 30th day after the date of the acquittal. Upon acquittal, the trial court shall advise the defendant of the right to expunction. The defendant shall provide to the district court all of the information required in a petition for expunction under Section 2(b). The attorney for the defendant in the case in which the defendant was acquitted, if the defendant was represented by counsel, or the attorney for the state, if the defendant was not represented by counsel, shall prepare the order for the court’s signature.

Sec. 1a. (a) The trial court presiding over a case in which a defendant is convicted and subsequently granted relief or pardoned on the basis of actual innocence of the offense of which the defendant was convicted, if the trial court is a district court, or a district court in the county in which the trial court is located shall enter an order of expunction for a person entitled to expunction under Article 55.01(a)(1)(B)(ii) not later than the 30th day after the date the court receives notice of the pardon or other grant of relief. The person shall provide to the district court all of the information required in a petition for expunction under Section 2(b).

  1. The attorney for the state shall:
    1. prepare an expunction order under this section for the court’s signature; and
    2. notify the Texas Department of Criminal Justice if the person is in the custody of the department.
  2. The court shall include in an expunction order under this section a listing of each official, agency, or other entity of this state or political subdivision of this state and each private entity that there is reason to believe has any record or file that is subject to the order. The court shall also provide in an expunction order under this section that:
    1. the Texas Department of Criminal Justice shall send to the court the documents delivered to the department under Section 8(a), Article 42.09; and
    2. the Department of Public Safety and the Texas Department of Criminal Justice shall delete or redact, as appropriate, from their public records all index references to the records and files that are subject to the expunction order.
  3. The court shall retain all documents sent to the court under Subsection (c)(1) until the statute of limitations has run for any civil case or proceeding relating to the wrongful imprisonment of the person subject to the expunction order.

Sec. 2.

  1. A person who is entitled to expunction of records and files under Article 55.01(a)(1)(B)(i) or 55.01(a)(2) or a person who is eligible for expunction of records and files under Article 55.01(b) may file an ex parte petition for expunction in a district court for the county in which:
    1. the petitioner was arrested; or
    2. the offense was alleged to have occurred.
  2. The petition must be verified and must include the following or an explanation for why one or more of the following is not included:
    1. the petitioner’s:
      1. full name;
      2. sex;
      3. race;
      4. date of birth;
      5. driver’s license number;
      6. social security number; and
      7. address at the time of the arrest;
    2. the offense charged against the petitioner;
    3. the date the offense charged against the petitioner was alleged to have been committed;
    4. the date the petitioner was arrested;
    5. the name of the county where the petitioner was arrested and if the arrest occurred in a municipality, the name of the municipality;
    6. the name of the agency that arrested the petitioner;
    7. the case number and court of offense; and
    8. together with the applicable physical or e-mail addresses, a list of all:
      1. law enforcement agencies, jails or other detention facilities, magistrates, courts, prosecuting attorneys, correctional facilities, central state depositories of criminal records, and other officials or agencies or other entities of this state or of any political subdivision of this state;
      2. central federal depositories of criminal records that the petitioner has reason to believe have records or files that are subject to expunction; and
      3. private entities that compile and disseminate for compensation criminal history record information that the petitioner has reason to believe have information related to records or files that are subject to expunction.
  3. The court shall set a hearing on the matter no sooner than thirty days from the filing of the petition and shall give to each official or agency or other governmental entity named in the petition reasonable notice of the hearing by:
    1. certified mail, return receipt requested; or
    2. secure electronic mail, electronic transmission, or facsimile transmission.

(c-1) An entity described by Subsection (c) may be represented by the attorney responsible for providing the entity with legal representation in other matters.

  1. If the court finds that the petitioner, or a person for whom an ex parte petition is filed under Subsection (e), is entitled to expunction of any records and files that are the subject of the petition, it shall enter an order directing expunction.
  2. The director of the Department of Public Safety or the director’s authorized representative may file on behalf of a person described by Subsection (a) of this section or by Section 2a an ex parte petition for expunction in a district court for the county in which:
    1. the person was arrested; or
    2. the offense was alleged to have occurred.
  3. An ex parte petition filed under Subsection (e) must be verified and must include the following or an explanation for why one or more of the following is not included:
    1. the person’s:
      1. full name;
      2. sex;
      3. race;
      4. date of birth;
      5. driver’s license number;
      6. social security number; and
      7. address at the time of the arrest;
    2. the offense charged against the person;
    3. the date the offense charged against the person was alleged to have been committed;
    4. the date the person was arrested;
    5. the name of the county where the person was arrested and if the arrest occurred in a municipality, the name of the municipality;
    6. the name of the agency that arrested the person;
    7. the case number and court of offense; and
    8. together with the applicable physical or e-mail addresses, a list of all:
      1. law enforcement agencies, jails or other detention facilities, magistrates, courts, prosecuting attorneys, correctional facilities, central state depositories of criminal records, and other officials or agencies or other entities of this state or of any political subdivision of this state;
      2. central federal depositories of criminal records that the person has reason to believe have records or files that are subject to expunction; and
      3. private entities that compile and disseminate for compensation criminal history record information that the person has reason to believe have information relating to records or files that are subject to expunction.

Sec. 2a. (a) A person who is entitled to expunction of information contained in records and files under Article 55.01(d) may file an application for expunction with the attorney representing the state in the prosecution of felonies in the county in which the person resides.

  1. The application must be verified, include authenticated fingerprint records of the applicant, and include the following or an explanation for why one or more of the following is not included:
    1. the applicant’s full name, sex, race, date of birth, driver’s license number, social security number, and address at the time the person who falsely identified himself or herself as the applicant was arrested;
    2. the following information regarding the arrest:
      1. the date of arrest;
      2. the offense charged against the person arrested;
      3. the name of the county or municipality in which the arrest occurred; and
      4. the name of the arresting agency; and
    3. a statement that:
      1. the applicant is not the person arrested and for whom the arrest records and files were created; and
      2. the applicant did not give the person arrested consent to falsely identify himself or herself as the applicant.
  2. After verifying the allegations in an application received under Subsection (a), the attorney representing the state shall:
    1. include on the application information regarding the arrest that was requested of the applicant but was unknown by the applicant;
    2. forward a copy of the application to the district court for the county;
    3. together with the applicable physical or e-mail addresses, attach to the copy a list of all:
      1. law enforcement agencies, jails or other detention facilities, magistrates, courts, prosecuting attorneys, correctional facilities, central state depositories of criminal records, and other officials or agencies or other entities of this state or of any political subdivision of this state;
      2. central federal depositories of criminal records that are reasonably likely to have records or files containing information that is subject to expunction; and
      3. private entities that compile and disseminate for compensation criminal history record information that are reasonably likely to have records or files containing information that is subject to expunction; and
    4. request the court to enter an order directing expunction based on an entitlement to expunction under Article 55.01(d).
  3. (d) On receipt of a request under Subsection (c), the court shall, without holding a hearing on the matter, enter a final order directing expunction.

Sec. 3. (a) In an order of expunction issued under this article, the court shall require any state agency that sent information concerning the arrest to a central federal depository to request the depository to return all records and files subject to the order of expunction. The person who is the subject of the expunction order or an agency protesting the expunction may appeal the court’s decision in the same manner as in other civil cases.

  1. (b) The order of expunction entered by the court shall have attached and incorporate by reference a copy of the judgment of acquittal and shall include:
    1. the following information on the person who is the subject of the expunction order:
      1. full name;
      2. sex;
      3. race;
      4. date of birth;
      5. driver’s license number; and
      6. social security number;
    2. the offense charged against the person who is the subject of the expunction order;
    3. the date the person who is the subject of the expunction order was arrested;
    4. the case number and court of offense; and
    5. the tracking incident number (TRN) assigned to the individual incident of arrest under Article 60.07(b)(1) by the Department of Public Safety.
  2. When the order of expunction is final, the clerk of the court shall send a certified copy of the order to the Crime Records Service of the Department of Public Safety and to each official or agency or other governmental entity of this state or of any political subdivision of this state named in the order. The certified copy of the order must be sent by secure electronic mail, electronic transmission, or facsimile transmission or otherwise by certified mail, return receipt requested. In sending the order to a governmental entity named in the order, the clerk may elect to substitute hand delivery for certified mail under this subsection, but the clerk must receive a receipt for that hand-delivered order.

(c-1) The Department of Public Safety shall notify any central federal depository of criminal records by any means, including secure electronic mail, electronic transmission, or facsimile transmission, of the order with an explanation of the effect of the order and a request that the depository, as appropriate, either:

  1. destroy or return to the court the records in possession of the depository that are subject to the order, including any information with respect to the order; or
  2. comply with Section 5(f) pertaining to information contained in records and files of a person entitled to expunction under Article 55.01(d).

(c-2) The Department of Public Safety shall also provide, by secure electronic mail, electronic transmission, or facsimile transmission, notice of the order to