Information on Getting Your Arrest Record Erased
Many innocent people have been wrongfully accused of a crime.
Some are lucky enough to have the prosecution realize the mistake and quickly choose not to indict. Other people are able to hire an attorney with the skill to convince the judge to dismiss the case after an evidentiary hearing. Many go through the long arduous process of a trial before being found not guilty. Some are even convicted before later having the conviction over-turned or receiving a pardon.
No matter how quickly the case is disposed of, he defendants in the before-mentioned situations have one thing in common — they still have that arrest on their criminal record. An arrest can cost an innocent person job offers, credit issues and social stigma. A simple mistake should not haunt you your entire life. Expungement (also called expunction) allows a person to have their prior record destroyed as if it never occurred. The process for seeking an expunction is long, tedious and complicated. Having an advocate who has experience helping the wrongfully accused fix this mistake is essential to having an effective petition filed in the proper court and in the proper county.
Who Is Eligible to Apply for an Expunction?
Other than in a very few limited circumstances, such as with murder and sexual assault, all crimes have a Statute of Limitations. The Statute of Limitations is the time in which the State is able to bring charges. In general, if the Statute of Limitations has passed, an accused can file for expunction as long as their case is no longer pending, there was no conviction, and they were not ordered to complete probation.
If the Statute of Limitations had not passed, defendants previously had to wait to apply for an expunction. However, in 2011, the law in Texas changed. Now, except in limited circumstances, a person is eligible to apply for expunction much sooner. Expunction can be applied for immediately after acquittal or if convicted, immediately after a subsequent pardon.
Expunction can also be applied for after only 180 days from the date of arrest for a Class C misdemeanor, after only 1 year from the date of arrest for a Class A or B misdemeanor, and after 3 years from the date of arrest for a felony (assuming in all instances that no felony charges have arisen from the same events) as long as the case is no longer pending, there was no indictment filed, the case was never brought to trial or if brought to trial there was no final conviction or order of probation, and if the State agrees that the records will not be needed in the future for an investigation or prosecution.
Though law enforcement will still keep the records if the Statute of Limitations has not yet passed, other than for law enforcement purposes, the expunction will immediately make it appear as if your arrest never occurred. Even if an indictment was filed, a defendant can still apply for expunction if the indictment was void, or was based on false information, or there was a mistake made, or there is reason to believe the accused is innocent, or if they successfully completed a pretrial diversion program.
Who Is Not Eligible to Apply for Expunction?
There are more exceptions than rules when it comes to expunction which is why hiring an experienced advocate is so important. Make sure to discuss the specifics of your situation before making a final determination as to whether you are eligible for expungement.
In general, any person convicted of any offense that carries a possible penalty of more than a mere fine cannot have their record expunged. However, if the conviction was later overturned or if the accused was later pardoned then an expungement can be obtained. A deferred adjudication for a Class A or B misdemeanor or for any felony counts as a conviction for expungement purposes only; so even if the case was ultimately dismissed by the court, expunction would not be available to any defendant who received a deferred adjudication.
As mentioned above, the law regarding expunction in Texas was updated in 2011. Additional updates are coming in 2017 as well. Updates in the law often clarify ambiguities and fill in gaps that were previously found in old statutes. The ever-changing nature of the law is yet another reason that it is vital to always seek competent, reliable representation in any legal matter.
If I Am Not Eligible for Expunction, Am I Out of Options?
Even if you are not eligible for expungement, you may be eligible to have your record sealed. This is also referred to as an Order for Non-Disclosure. Orders for non-disclosure prohibit the State from disclosing to the public any criminal history record information related to an offense. This makes it so that only criminal justice agencies and certain limited other agencies would have access to the records regarding your arrest.
Unlike expunction, orders for non-disclosure can be obtained by defendants who successfully complete deferred adjudication as long as they have no priors for any sex offense that required registration, any family violence offense, capital murder, murder, or aggravated kidnapping. Some misdemeanors are eligible to be sealed immediately after dismissal while other misdemeanors have a 2 year waiting period. For any eligible felony, the waiting period is 5 years after the completion of the court ordered supervision.
Having your arrest record erased or sealed can open up doors for you and your family. You may become eligible for loans for which you were previously denied, your resume may start getting considered for positions for which you were previously passed over, and your community may be more inviting. If you or a loved one has a prior arrest that is hindering your ability to move on with your life, call us so we can discuss getting your life back on the track you deserve.