For many individuals who landed in the wrong place at the wrong time, your name can be tied to a criminal record. This single mistake can lead to a permanent mark that haunts you throughout life: appearing in a background check for a job application, for housing applications, student loan applications and more. To make matters worse, most background checks are often made available to anyone who can access the internet.
Fortunately, many individuals don’t have to deal with the consequences of a criminal record forever, because Texas law offers a way to clear that record in certain situations.
Although most convictions can’t be completed erased from someone’s criminal record, Texas law does allow individuals to permanently erase information about an arrest, charge, or conviction (in some circumstances) through a process called expunction.
What is expunction or “expungement?”
Expunction, or expungement, is a civil legal process through which an individual seeks to erase an event from their criminal records. In Texas, the expunction law allows someone to permanently clear their name for arrests that did not lead to a conviction and class C misdemeanors. As a result, individuals who successfully expunge their criminal record can deny that the incident ever occurred, as no record of the event will remain.
Who is eligible for expunction?
Expunction probably sounds great for those with a past or current criminal case, but unfortunately, not all cases are eligible. In Texas, expunctions are only allowed in certain circumstances. Individuals with records that become eligible for expunction include those tied to specific circumstances, including:
- An arrest record for a crime that never resulted in charges being filed. Including if you were arrested for a misdemeanor and charges were not formally filed and the required minimum amount of time has elapsed
- A criminal charge that was ultimately dismissed
- A conviction was acquitted by the trial court, or on appeal
- If your identity was stolen and someone else committed a crime under your name, but then the person who stole your identity was arrested for that crime
- Certain qualifying misdemeanor juvenile offenses
As in many other scenarios, these circumstances are not concrete in determining whether or not an individual’s case can be expunged. Whether or not an individual can clear their record completely is determined on a case-by-case basis and often by other determining factors, including prior criminal record or probation.
Additionally, time, as it is a factor in almost every other scenario in life, is a factor in seeking this option to clear a lingering criminal record. This is one of the many reasons why you should consult with a criminal defense attorney from the beginning of a case, so that you can adequately prepare for a potential scenario, such as seeking expungement of records. However, even if you are not eligible to request expunction of your criminal record, there is another option you might be able to pursue, which is filing a nondisclosure order.
What is a nondisclosure order?
If an expunction is not an option due to the nature of the case, it may be possible to seek an order of non-disclosure. Unlike an expunction, a non-disclosure won’t completely erase your criminal record. Instead, it limits the accessibility by removing it from the public record and cannot be released to certain private parties.
In an order of non-disclosure, the record can remain available to government agencies and will be admissible in certain court actions, meaning your prior record can be introduced to serve as evidence to a judge or jury in a court proceeding, should you have to face one in the future. This usually occurs in a subsequent criminal case where the State is trying to enhance the charge, or increase the potential sentence.
Who is eligible to seek a nondisclosure order?
A person who has successfully completed deferred adjudication can apply for a non-disclosure order but must also meet certain criteria in order to qualify for a nondisclosure order. These qualifications include a waiting period, which can vary anywhere from immediate eligibility to up to 10 years, depending on the offense committed. Those charged with crimes involving family violence, sex offenses, aggravated kidnapping, murder, and similarly violent offenses are not likely to obtain a nondisclosure order. Finally, it is important to keep in mind that a judge does have the discretion to deny a non-disclosure request.
Why expunction is a better option than a nondisclosure order
Pursuing an expunction is a better option than obtaining a nondisclosure order for several reasons. Foremost, as we discussed before, obtaining a nondisclosure means most private parties don’t have access to your criminal records, but government officials – including police officers, prosecutors and the court itself, have the right to obtain those records.
While this doesn’t seem harmful in most situations, it’s possible for that information to come to light in the future if you find yourself in trouble with the law or rather, in court. Your criminal record can still be used as admissible evidence in a future legal matter, which can not only hurt your case, but that information could become known to anyone privy with that legal matter in the future. With an expunction, no one, and that includes the government, can legally keep a record of the arrest ,or criminal case – not the police, the court clerk, or the district attorney. The one exception to this is certain pre-trial diversion programs where a hard copy is kept by the county attorney or district attorney’s office to ensure that you only apply once for the program, as opposed to filing multiple times.
Another caution with choosing nondisclosure is that there is a particularly large number of professional licenses with governing bodies that can view nondisclosed offenses in a criminal record, putting your entire career at risk – even if you weren’t found guilty of a crime. Again, with an expunction, no one, not even a licensing board, can access the records because they are destroyed.
It’s important to understand that just because your case is dismissed, it does not mean your record is automatically sealed or expunged. You must take action to take care of your criminal record and understand the timelines and deadlines associated with doing so. An experienced criminal defense attorney can not only help you understand the future risks associated with your criminal record and can represent your rights in filing for either expungement or nondisclosure.
If you have been recently arrested or seek help understanding your options for expungement for nondisclosure, contact my office immediately.