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By Benson Varghese

Published on: December 12th, 2019 at 12:56 PM
Last Updated: October 29th, 2020 at 2:24 PM

What is an expunction?

An expunction (sometimes referred to as an “expungement”) is a court order that permanently destroys all records of an arrest in Texas and the outcome. No one – including police, prosecutors, or even judges – have the ability to consider an expunged record. In most cases, you can deny the fact that you were arrested – even under oath. It is one of the most powerful mechanisms to clear a person’s record that exists under our laws.

Who is eligible for an expunction?

To be eligible for an expunction in Texas, your case must have been:

  • Dismissed;
  • No-billed by a grand jury;
  • Acquitted (either at trial or on appeal);
  • Never filed – meaning you were never charged – and the statute of limitations has run;
  • Never filed – and a waiting period has passed (partial expunction);
  • The indictment was quashed due to a lack of probable cause and the statute of limitations has run;
  • The case was resolved as a Class C offense that was dismissed after successful completion of deferred adjudication probation;
  • Pardoned;
  • Reversed and acquitted by a Court of Appeal; or
  • Recommended to be expunged by the prosecutor.

Why do expunctions exist?

Many arrests stem from stupid mistakes, a momentary lapse in judgment often brought on by anger, alcohol, peer pressure, or youth. Unfortunately, that one-time mistake can have lifelong consequences. In Texas, an arrest record can prevent you from getting into college, landing a job, leasing a car, or financing a home. It’s the mistake that keeps on giving.

All hope is not lost, however. In Texas, there are ways to have criminal records erased or sealed – either through an expunction or a non-disclosure. Our Fort Worth expunction lawyers have successfully obtained dozens of expunctions in Tarrant County over the last several years. If you believe you are eligible for an expunction, please contact our law firm today for a free consultation. We will review your case and see if we can help you put your past behind you.

What’s the difference between an expunction and nondisclosure?

In Texas, there are two ways to keep a criminal record private – an expunction or a nondisclosure. While both have to be ordered by a judge, there is a very distinct difference between the two. An expunction erases a criminal record; a nondisclosure seals it from the public. An expunction is the best option for those who qualify.

Is there a waiting period before I can seek an expunction?

Unfortunately, yes – and in some cases, it can be complicated. When you are eligible for expunction depends on the manner in which your case was disposed and whether it was a misdemeanor or a felony. For example, if you were acquitted by a jury, there is no waiting period. Likewise, if your case was dismissed after successfully completing a diversion program in Tarrant County, you may also be eligible for an expunction right away. However, if your case was never filed, the waiting period can range anywhere from 180 days from the date of arrest to up to three years from the date of arrest. Your best bet is to contact a Fort Worth expunction attorney to figure out how long you must wait before you are expunction eligible. The attorney will need to find out the circumstances of your case, as well as date of your offense, the date the case was filed and the date of dismissal, to accurately calculate your waiting period.

How long does it take to get an expunction in Fort Worth once the process has started?

Once a petition has been filed to have your record expunged, the court will take up the matter. This could take anywhere from one month to a few months, depending on the court. If you meet the requirements and there is no opposition, the court could quickly approve your petition. Occasionally, a judge will want to have a full hearing to ensure that you are eligible for an expunction. Likewise, a hearing will be necessary if the expunction is being contested. That could delay the process a bit. Once the judge signs an expunction order, it can take four to six months before the records are expunged. This is because the Texas Department of Public Safety (DPS) is the clearinghouse for criminal records and they are backlogged. The order must also be processed by a number of private and public entities which can also take some time. The takeaway is that if you believe you are eligible for an expunction, it’s important to get started sooner rather than later.

Why are expunctions not granted?

There are several reasons an expunction may not be granted, including an inaccurate eligibility date or a mistake in the petition. You only have one shot at getting an expunction. There are no “re-dos.” You’ll want to be sure you get it right the first time. You will increase your chance of a favorable outcome if you rely on the skills of a Fort Worth expunction lawyer.

Can I deny an offense if it was expunged?

Yes, once an expunction order is final, an individual may deny the existence of the arrest and the expunction on applications, including for employment, school or the military. The person may even deny in a civil proceeding under oath the arrest and the existence of the expunction order. Only in a criminal proceeding must a person acknowledge the expunction order by stating the matter has been expunged. A Fort Worth expunction lawyer at our firm can elaborate if you still have questions.

If my case is dismissed in Fort Worth, do I have a criminal record?

Yes, this is a common misconception. People wrongly believe that if their case is dismissed, it is no longer on their record. If your case is dismissed, the arrest will remain. In other words, the arrest will show up on a criminal background check.

Arrests and dispositions get reported to the Texas Department of Public Safety. The information is then disseminated to third-party services like publicdata.com. If you case has been dismissed, contact a Fort Worth expunction lawyer at Varghese Summersett so see if your record can be expunged.

Can I get an expunction if I plead guilty or no contest?

Unfortunately not – unless it was a Class C misdemeanor (ticket). If you pleaded guilty or no contest to a Class A misdemeanor, Class B misdemeanor or a to felony, then your case is not eligible for an expunction. The only exception is if your case was a Class C misdemeanor (ticket) and you successfully completed deferred adjudication.

Was my Class C deferred or was it a conviction?

If the fine you paid was categorized as a fine, then it was a conviction. If it was categorized as a “special assessment,” then you received deferred adjudication. If you successfully completed deferred on a Class C ticket, you should be eligible for an expunction.

In Tarrant County, and in many other counties across the state, cases are sometimes reduced to Class C offenses. For example, let’s say you were arrested for Theft $100-750 but your case was ultimately disposed of as a Class C Theft under $100, after you paid a special assessment and you successfully completed your deferred term. Once you are done, your case is dismissed. However, a background check will still show that you were arrested for Theft $100-750. An expunction would remove the arrest from your record completely.

Can I get an expunction if I was found ‘Not Guilty” on one of multiple charges?

Generally, if a person is arrested on multiple charges and at least one of the charges result in a conviction, the conviction will prevent an expunction of the underlying arrest. However, there are exceptions – as evidenced by an opinion issued by the Court of Appeals in Dallas.

In Texas v. T.S.N., the defendant was arrested for two offenses from two different dates at the same time. The first offense was a misdemeanor theft charge. The second charge was  aggravated assault with a deadly weapon charge. The defendant pleaded guilty to theft and was convicted. The defendant pled not guilty to the assault charge and was acquitted.

The defendant filed a motion to expunge the record of the assault after being found not guilty. The prosecutor opposed the motion for expunction because the defendant was convicted of least one of the offenses for which she was arrested. The trial court ruled in favor of the expunction and the State appealed the decision to allow the expunction.

The State’s argument, and one that is commonly made by prosecutors, is that Article 55.01 (the expunction statute) is an arrest-based statute and that records concerning one charge cannot be expunged absent a showing that both charges are eligible for expunction.

While it is true that 55.01(c) does not allow for expunctions after acquittal of one charge when the person was convicted for, or remains subject to prosecution for, an offense arising out of the same criminal episode, there is no such restriction if the offenses did not take place in the same criminal episode.

The Court of Appeals in Dallas examined the expunction statute closely and determined that a person who is acquitted of an offense is entitled to an expunction even if he or she was arrested for another offense at the same time and that offense resulted in a conviction, as long as the offense for which he was convicted did not arise out of the same criminal episode.

This case highlights the need to contact an expunction attorney in Fort Worth if you believe you may be eligible for an expunction of your records. Second, for practicing attorneys, it is important to seek findings of “not guilty” from judges or juries for counts or charges that do not arise out of the same criminal episode. This case is an important reminder to pursue what you believe to be a proper reading of a statute even when the prosecution seems to have an analogous argument that has carried the day in other cases.

Can I get an expunction if I signed a waiver of expunction?

Individuals sometimes sign waivers of expunctions at the time of their plea. If you signed a waiver of expunction, the road to getting an expunction becomes more difficult. Still, there are avenues for expunctions to be granted. If it important that you contact an expunction attorney who is familiar with expunction laws and the procedures for filing an expunction in cases where a waiver of expunction was signed.

How can our Fort Worth expunction lawyer help?

Our Fort Worth expunction lawyers will determine your eligibility, file the motion, petition the court, and aggressively represent you if the expunction is contested and a hearing is required. In most cases, our clients do not have to go to court. We handle everything and very little effort is required on your part. We have helped hundreds of people clean up their criminal records in Tarrant and Dallas counties, and hopefully, we can help you, too.

Don’t let your past hold you back. If you are interested in expunging your record or have questions about the process, please call Varghese Summersett today for a free consultation with an experienced Fort Worth expunction lawyer.