Many individuals who have found themselves in trouble with the law, perhaps many years ago, would like to eliminate their criminal records. Even if the charges were dismissed or the person was eventually found innocent, there is a still a record that could affect career opportunities or even renting a house.
Texas law offers hope. Although there is a difference between expunctions and nondisclosure orders in Texas, both options can provide peace of mind for anyone subject to a criminal record check. A quick review of eligibility and procedures can help people know if it is worth contacting a criminal defense attorney in Fort Worth or elsewhere in Texas to proceed with an application.
Expunging a person’s criminal record is like rolling back the clock so that the incident never occurred. All information about an arrest, charge, and conviction is permanently removed from the state’s criminal records.
There is no automatic guarantee of success in applying for an expunction, as most cases cannot be changed. However, there are several situations which are at least eligible for review:
- Arrest but no charges
- Criminal charges were dismissed
- Arrest and/or conviction due to identity theft by someone who was subsequently charged and convicted
- Arrest for certain alcohol offenses
- Governor or presidential pardon for a crime for which there was a conviction
If a person decides to proceed with the petition for expunging records, it is important that the proper procedure is followed. If there is more than one arrest involved, it is a much more complicated process.
The petitioner needs a complete, detailed criminal history record and an order of dismissal from the Texas Department of Public Safety. The Texas Legal Services Center has an informative website with detailed instructions, forms that are needed, and tips on completing the application. They also urge petitioners to consult an expunction lawyer before submitting the application.
The application for expunction can be delivered to the county clerk’s office of the court that was involved with the original offense or it can be filed electronically. Then, an in-person hearing is scheduled at least 30 days after submission. If the court approves the petition, all agencies involved in the arrest, charges, and/or conviction will be ordered to remove that arrest from the record.
It is advisable for petitioners to request their criminal history from the Department of Public Safety about six months after the judge signs the order for expunction just to make sure the arrest has been removed from the records.
If an expunction is not going to work, another option might be an “Order of Nondisclosure of Criminal History Record.” Although there is still a record in this case, accessibility is limited. The files are removed from the public record but are still available to government agencies and for relevant court proceedings.
Considerations for eligibility for nondisclosure include the following:
- Prior conviction as a sex offender or any of the prohibited list of offenses such as family violence, aggravated kidnapping, and murder
- Conviction or placed on deferral while on probation or during waiting period
- Prior convictions or deferred adjudications
- Passing of statutory waiting period, which can be up to ten years depending on the crime; for example, five years for felonies, two years for misdemeanors, and two years from release from incarceration
The process for applying for a nondisclosure order is similar to that for an expunction. The completed petition forms are filed with the original court. A hearing is scheduled, and notice is given to all required parties. The judge decides whether to grant the request for nondisclosure. In this case, the court can exercise considerably more discretion than for an expunction.
Steps to Successful Petition
For petitions to be successful, it is important that the petitioners take these steps:
- Carefully review all the information available
- Determine their personal eligibility
- Evaluate the eligibility of their criminal record
- Diligently follow all instructions for completing the application forms
- Schedule and appear for the hearing in good form
While it is good to have options, it is important to remember that there is a significant difference between expunctions and nondisclosure orders in Texas. There is no automatic default from a failed expunction application to a successful nondisclosure order. The advice of a criminal defense attorney is invaluable for either case.