1. What is an expungement?
Upon the petition of a criminal defendant, a court can direct certain law enforcement agencies to destroy all records associated with an arrest and subsequent prosecution. Many times the court will specifically direct law enforcement agencies to destroy jail records, police reports, prosecution reports and court files. In addition, a successful expungement petitioner, can legally deny ever having been arrested for or charged with the criminal offense for which he is receiving the expunction
2. Do the records just disappear?
No. Except in cases where identifying information is expunged due to false identity information provided without consent, the court may return records to the petitioner. When return isn’t practical, records are to be obliterated or deleted. Records may be retained by a law enforcement agency or prosecutor if necessary for use in another case. Tex. Code Crim. Proc. Art. 55.02.
3. Who is eligible to get records expunged?
Under Tex. Code Crim. Proc. Art. 55.01, a person is eligible for expunction if acquitted or convicted and pardoned or meet the following conditions:
1) an indictment or information charging the person with commission of a felony has not been presented or has been dismissed or quashed; and the statutory limitations period has expired; or the indictment or information was dismissed or quashed for lack of probable cause; and
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; and the person has not been convicted of a felony in the five years preceding the date of the arrest.
A person can get expungement for a criminal conviction reversed on appeal. Persons whose identifying information was falsely used without consent by an arrested person may seek expungement of such information. Expungement isn’t available if charges 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.
As permitted by Tex. Code Crim. Proc. Art. 45.051, a juvenile who has completed a deferred sentence may seek expungement under § 55.01.
Under Tex. Code Crim. Proc. Art. 45.053. involving the dismissal of a misdemeanor charge on commitment of a chemically dependent person, records relating to a complaint dismissed under this article may be expunged under Article 55.01.
If the court finds that the person was not convicted of any other offense described by Section 8.07(a)(4) or (5), Penal Code, while the person was a child, the court shall order the conviction, together with all complaints, verdicts, sentences, and prosecutorial and law enforcement records, and any other documents relating to the offense, expunged when turn 17. Tex. Code Crim. Proc. Art. 45.0216.
Also, under Texas Alcohol and Beverage Code § 106.12, a first-offender of underage drinking violation may have records expunged. Must not have any other violations under the Alcohol and Beverage Code while a minor to be eligible and submit a sworn statement to that effect to the court.
4. What records may be expunged?
Tex. Code Crim. Proc. Art. 55.02 allows a person to seek expungement of all files and records related to their arrest. Under Tex. Code Crim. Proc. Art. 55.02, after an order to expunge is granted, the trial court shall require any state agency that sent information concerning the arrest to a central federal depository to request such depository to return all records and files subject to the order of expunction.
5. How do I get records expunged?
The Art. 55.02. procedure for expunction under Art. 55.01 states:
Sec. 1. At the request of the defendant and after notice to the state and a hearing, the trial court presiding over the case in which the defendant was acquitted 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 court shall advise the defendant of the right to expunction. The defendant shall provide to the court all of the information required in a petition for expunction under Section 2(b).Sec. 2. (a) A person who is entitled to expunction of records and files under Article 55.01(a)(1)(B), 55.01(a)(2), or 55.01(d) 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;
(2) the person who falsely identified himself or herself as the petitioner was arrested, if the petitioner relies on an entitlement under Article 55.01(d); or
(3) the offense was alleged to have occurred.
(b) The petition must be verified and shall include the following or an explanation for why one or more of the following is not included:(1) the petitioner's:(A) full name;
(B) sex;
(C) race;
(D) date of birth;
(E) driver's license number;
(F) social security number; and
(G) address at the time of the arrest;
(2) the offense charged against the petitioner or the person described by Subsection (a)(2);
(3) the date the offense charged against the petitioner or the person described by Subsection (a)(2) was alleged to have been committed;
(4) the date the petitioner or the person described by Subsection (a)(2) was arrested;
(5) the name of the county where the petitioner or the person described by Subsection (a)(2) 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 or the person described by Subsection (a)(2);
(7) the case number and court of offense; and
(8) a list of all 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 and of all central federal depositories of criminal records that the petitioner has reason to believe have records or files that are subject to expunction.
(c) The court shall set a hearing on the matter no sooner than thirty days from the filing of the petition and shall give reasonable notice of the hearing to each official or agency or other entity named in the petition by certified mail, return receipt requested, and such entity may be represented by the attorney responsible for providing such agency with legal representation in other matters.
(d) If the court finds that the petitioner is entitled to expunction of any records and files that are the subject of the petition, it shall enter an order directing expunction.
(e) In addition to the information required by Subsection (b), if the petitioner relies on an entitlement to expunction under Article 55.01(d), the verified petition must include authenticated fingerprint records of the petitioner and must include the following or a statement explaining the reason the following is not included:(1) the full name of the person arrested; and
(2) a statement that:(A) the petitioner is not the person arrested and for whom the arrest records and files were created; and
(B) the petitioner did not give the person arrested consent to falsely identify himself or herself as the petitioner.Expunction of juvenile records under Art. 45.0216 do not follow the above procedure. When the person has reached the age of 17, the person must make a written request to have the records expunged. The request must be under oath.
The request must contain the person's statement that the person was not convicted while the person was a child of any offense described by Section 8.07(a)(4) or (5), Penal Code, other than the offense the person seeks to have expunged.
The judge shall inform the person and any parent in open court of the person's expunction rights and provide them with a copy of this article. The expunction will be ordered as a matter of law if the statutory conditions are met.
Related Texas Legal Forms
Texas Expungement Package
