In 1977, Texas joined a number of states that allowed criminal records to be “expunged” or wiped away from institutional memory. It is a truly miraculous law – once an order of expunction is entered, the person who was arrested can deny the occurrence of the arrest and the expunction order, and state and local agencies are prohibited from releasing, maintaining, disseminating or using the expunged records and files.
No wonder people are flocking to file motions for expunctions. Especially since there is a reasonable fear that this law might be legislated out of existence – it has already been amended 14 times, each change making the law a bit more onerous: 1979, 1989, 1991, 1993, 1999, 2001 (twice), 2003, 2005, 2009 (twice) and 2011 (twice). With the 2013 legislative session looming, if you qualify then you should seriously consider filing for an expunction post-haste.
So here’s the big question – do you qualify to have the record of your arrest for a misdemeanor or felony expunged?
Yes, if you were arrested, tried and acquitted.
Yes, if you were arrested, tried, convicted, and the court of appeals subsequently acquitted you.
Yes, if you were arrested, convicted and subsequently pardoned for actual innocence.
Yes, if you were arrested and indicted, and the indictment was later quashed because you went through a pretrial diversion program or because the information leading to the indictment was found to be false or mistaken, or because the indictment was void.
Yes, if you were arrested for a Class C misdemeanor and 180 days have passed without an indictment; if you were arrested for a Class B or Class A misdemeanor and one year has passed without an indictment; or if you were arrested for a felony and 3 years have passed without an indictment. Note the longer 3 year period applies if a felony charge was combined with any of the misdemeanor charges, however – the time periods could be shortened if the attorney for the state certifies that the arrest records and files are needed for prosecuting you or anyone else.
Now for the tricks and traps. The procedures for expunction have to be strictly followed, so hire an attorney to help. From the moment of arrest, you should start thinking about the expunction. If you pay a fine, agree to preferred adjudication or were placed under community supervision, you aren’t eligible for an expunction. An affidavit of non-prosecution, by itself, doesn’t establish the false or mistaken grounds for expunction. You can waive your right to expunction in an agreement to enter pretrial diversion program. A dismissal for insufficient evidence won’t support an expunction.
The only way to know for certain if you qualify is to consult with an experienced attorney.