Finally, some good news! Let me get you up to
speed on expunctions and orders of non-disclosure.
WHAT IS AN EXPUNCTION AND HOW DO YOU GET ONE? An expunction is a process by which you destroy all records and computer references of your arrest and prosecution from law enforcement agencies, courts, jails, prosecutors, county websites, and state and federal repositories of criminal records like the Texas Department of Public Safety (DPS) and the Federal Bureau of Investigation (FBI). This is not something that happens automatically. Almost everyone that tells me "it's not on my record" is wrong. Your arrest will be on your criminal history until you do a petition for expunction, so do not deny that it occurred. This is something you cannot hope do correctly on your own; you will need a skilled lawyer to do this for you. For me to do an expunction for you correctly, you must get your criminal history from DPS. There is only one way to get your criminal history. To get your criminal history, you must follow these instructions on the DPS Crime Records Page at http://www.txdps.state.tx.us/administration/crime_records/pages/index.htm
Basically, you either (1) do electronic fingerprinting and it is sent to DPS electronically or (2) you can go directly to DPS in Austin at 108 Denson and get printed there. DPS will mail you your criminal history, and you will need to provide me with a copy.
ARE YOU ENTITLED TO AN EXPUNCTION? To be entitled to an expunction, your case must have, at minimum, been dismissed (or declined/rejected) without any type of community supervision (probation or deferred adjudcation) under Article 42.12 of the Code of Criminal Procedure. If your case was tried and you were acquitted, it is highly likely you are entitled to an expunction. If you entered into an agreement with the prosecutor, often called pretrial diversion, deferred prosecution, or pretrial intervention, you may also be entitled to get an expunction. If you were a victim of identity theft, you may be entitled to an expunction. If your case was reduced to a Class C misdemeanor, and you successfully completed a deferred disposition, you may be entitled to an expunction. There are other limitations on one’s right to an expunction that I can’t detail here. Only an experienced lawyer familiar with your specific fact situation can evaluate your expunction eligibility.
Expunctions are generally governed by Article 55 of the Texas Code of Criminal Procedure, although there are some other provisions that may entitle one to an expunction, including:
· Art 45.051 says that if a person gets a deferred disposition (similar to deferred adjudication) on a class C misdemeanor and successfully completes that deferred disposition, the matter may be expunged.
· Texas Alcoholic Beverage Code section 106.12 says that a minor who attains the age of 21, and has not been convicted of more than one violation of the Alcoholic Beverage Code, may apply to the court in which he was convicted for an expunction. Courts and prosecutors often misinform defendants charged with Alcoholic Beverage Code violations that this law applies to them. It does not, unless they were convicted. If deferred disposition was sucessfully completed, the minor is eligible without regard to age.
The expuntion law changed on September 1, 2011 and it is now easier to file a petition for expunction sooner than in the past. Only an experienced attorney can tell you (1) whether you are eligible for an expunction, and (2) when you are eligible to file the petition for expunction. A skilled attorney may be able handle your criminal case or petition for expunction in a manner that allows you to file a petition for expunction sooner.
It is a very common misconception due to misstatements by lawyers, prosecutors and judges, or misunderstanding by defendants, but a successfully completed deferred adjudication on a Class B or higher offense does not entitle one to an expunction. If you receive a deferred adjudication on Class B misdemeanor or higher offense, you will have a record of arrest on your criminal history for life. You will just not have been convicted of the offense in question, and you can deny being convicted. However, you cannot truly deny having been arrested or prosecuted. There is no way to have the record removed from your criminal history.
WHY DO AN EXPUNCTION? I would strongly advise that you exercise your right to have your records expunged for numerous reasons, including but not limited to:
- If you are detained or arrested again, this matter will be known to the arresting officer, and as a practical matter, it will be held against you by the arresting officer.
- If you are arrested again, this matter will be known to the prosecuting attorney, and your criminal history (even a dismissed case) will adversely affect you in plea bargain negotiations.
- If you are arrested again, and the case is tried to a judge or jury, and you lose, the jury or court can consider this matter (even a dismissed case) as punishment evidence, and it could affect the punishment you are given.
- If you apply for a job, and disclose your arrest, you may not be hired. Alternatively, if you fail to disclose the arrest, and are hired, your employer may terminate you upon finding out that you failed to disclose the arrest on your application for employment.
- You may have a hard time renting an apartment.
ORDER OF NON-DISCLOSURE. However, in some cases, if you successfully complete a deferred adjudication, you may be entitled to ask the court for an order of non-disclosure, which limits public access to your record of arrest. However, the record is still readily accessible for law enforcement, state licensing and many other governmental purposes. Generally, I don't recommend bothering with an order of non-dislcosure because they are ineffective.
For more information about expunctions and orders of non-disclosure, please contact me.