In Texas, there are two ways to clear a criminal record – either through an expunction or nondisclosure. Fort Worth Criminal Defense Attorney Benson Varghese explains the difference between the two and what kind of cases qualify in this comprehensive video.
One of the biggest mistakes I see as a criminal defense attorney is not seeking out an expunction or nondisclosure. They’re primarily two ways in Texas to clear a person’s record. The first is through the expunction process. An expunction is an order from a court requiring the deletion of all the records associated with both the arrest, as well as any subsequent case that arose out of that arrest. A nondisclosure on the other hand is an order from a court requiring that the record be sealed from public eyes so that most people can’t see it. Law enforcement agencies and state licensing agencies can still see non-disclosed records.
There are a number of ways a person can become eligible for an order of expunction. The first is for the case to be dismissed, once a case is dismissed without a conviction and assuming there are no convictions arising out of that arrest, a person can seek an order of expunction once the statute of limitations has passed. So, for a misdemeanor, like an assault, low-level theft offense, a driving while intoxicated case, if your charge was dismissed and you wait two years for the statute of limitations to pass, you will become eligible for an expunction. Once the expunction is granted, it will destroy the arrest record, the body cams, any case filing within the court, even the prosecutor’s files. For a felony offense, the statute of limitation may be three years, five years, or even longer based on the exact offense you were charged with.
The second way a person can get an expunction is if a case was never filed against them. So, let’s say you’re arrested for an offense and you wait month after month, you check in with your bondsmen, and yet a case never gets filed.
You can seek an expunction, some might refer to this as a partial expunction, even before the statute of limitations has run. For a partial expunction, there are waiting periods of 180 days, a year, and even three years before you can get the matter expunged. Here, the partial expunction refers to the fact that because you’re filing for an expunction before the statute of limitations has run, it will destroy all records of the case, except for the records maintained by the DA’s office.
Another way to become eligible for an order of expunction is to be found not guilty by a judge or a jury. You can file for an expunction as soon as you get an acquittal – there’s no waiting period. So, if on Monday morning you are found not guilty by a judge or a jury by Tuesday, you can have an expunction that orders the destruction of every record associated with your case.
Another way to become eligible for an expunction is to successfully complete a class C deferred adjudication. It doesn’t matter what the case was originally filed, it could have been filed as a felony, a class A misdemeanor, a class B misdemeanor – as long as at the time of the plea, it was reduced to a class C misdemeanor and that class C misdemeanor was deferred.
Finally, if the local district attorney’s office handling your case is willing to certify to the court that the records are no longer necessary the court may order an expunction of your case. However, depending on what County you’re in, the reality is, you may not be able to secure that agreement from the district attorney’s office.
An order of expunction is a powerful tool. Once an order of expunction has been granted, you can deny, even under oath in most instances, that you have never been arrested – it is like it never happened. Despite this, expunctions are often overlooked because of the waiting periods required before you become eligible to get the expunction. At our office and for our clients, we calendar that out for you, so that you will get a reminder from us when it’s approaching time for you to file an order and motion for expunction.
While it’s not as powerful as an order of expunction, an order of nondisclosure is still a very useful tool. It seals a person’s record so that most people can’t see it. State licensing agencies and law enforcement agents can still see a sealed record. A person becomes eligible for an order of nondisclosure once they’ve successfully completed deferred adjudication and they’ve waited an appropriate waiting period. So, for instance, if you’re charged with a felony offense and you receive deferred adjudication, you first of all, avoided a felony conviction on your record. However, you’ll still want to come back and seal your record as soon as possible so that the arrest does not show up. To do that, you’ll need to first successfully complete deferred adjudication and then wait a five-year waiting period for felonies. And assuming you’ve stayed out of trouble, you successfully completed deferred, you will become eligible for an order of nondisclosure.
Over the last five years or so, the legislature has given us new ways to qualify for an order of nondisclosure. You may be able to get a matter non-disclosed if you’ve gone to jail for a misdemeanor offense or received straight probation for a misdemeanor offense, both of which are generally considered convictions if the offense took place after September 1st of 2015.
You may also be able to get an order of nondisclosure for certain first time DWI offenses. Now here, it does not matter whether the offense took place before September 1st of 2015 or not – the law for driving while intoxicated non-disclosures is retroactive. So, you could have a DWI conviction for a first-time offense from any time that might be eligible for a nondisclosure. In order to be eligible, it had to have been a first time offense, you can’t have any other criminal history, you cannot have any subsequent DWI arrests, your blood alcohol concentration cannot have been more than 0.15, you may not have been involved in an accident involving another person, even if that other person was the passenger in your vehicle. If you meet these qualifications, you may be eligible to have your driving while intoxicated case non-disclosed –whether you received straight probation or jail time. If you believe you fall into this category, reach out to our office so that we can go through a checklist with you to see if you actually qualify and then help you get the matter non-disclosed.
There are certain offenses for which you cannot receive an order of nondisclosure. These include any offense for which you have to register as a sex offender, murder, capital murder, injury to a child, injury to the elderly or disabled, abandoning or endangering a child, violations of court orders on family violence cases, stalking, any family violence charge, and aggravated kidnapping.
The process to obtain an order of nondisclosure or an order of expunction is remarkably similar. For an expunction, our office prepares a petition that lays out the reasons you should receive an expunction and provides the court with the statutory basis to order the expunction. For expunction applications, we send you a copy of the petition to verify the details – you will have to sign and notarize the document either at our office or at a location convenient to you, before the petition is filed with the court. For orders of nondisclosure, you won’t have to sign an affidavit stating the facts are true – we will still confirm all the details with you. In our petition for a nondisclosure, we will similarly lay out the reasons why you’re eligible as well as the statutory basis for the judge to grant the order of nondisclosure.
Once we filed our petition for nondisclosure or expunction, the state has an opportunity to review it. The state will file an answer or perhaps an agreed order for the judge to sign. The judge will then set the matter for a hearing – sometimes those are hearings where both sides will actually present arguments. However, in many cases there’s not actually a hearing, the matter is just brought before the court, the court considers the written filings and ultimately decides to either sign or not sign the document.
The process for obtaining a order of nondisclosure or expunction is a lengthy one. The petition must be prepared, once it’s prepared, the state will have an opportunity to respond and they may take weeks or even months to respond. Once the state has responded, it goes to the court’s docket and depending on how busy the court’s docket is that may again take weeks or months. Even when the judge has ordered the expunction or nondisclosure, it will take months before your record is completely removed from all the online sources. Although the order of expunction is effective immediately, the reality is different departments that have your information are going to take different amounts of time to process the order. For example, if we receive an order of expunction or nondisclosure and send it to DPS, who is the primary distributor of criminal history information – both publicly and to private entities that purchase that information – it takes DPS approximately four months to process the order, because they have that many orders just waiting in line to be processed. So, when a person asks me how quickly their criminal history will come off the internet or their mugshot will be taken down, I usually tell them it’s a process that will take four to six months. Once we have the order of expunction or nondisclosure, we will send it to every agency we believe has your information. If we know a website has posted your information, we’re going to send it to that website.
We follow up with a background check about six months after we’ve obtained the order of expunction. This allows us to check to see if there are any outliers who have either not received the order of expunction or nondisclosure or have not complied with it. Generally, by sending them a certified copy of the order, they will come into compliance. It’s rare, but every once in a while, there will still be a company or website that publishes information despite receiving an order of expunction or nondisclosure – we generally follow up with them with another certified letter, a certified judgment from the court, requiring them to take down the published information and reminding them it is a criminal offense to continue to publish information that has been expunged or non-disclosed. We’ve never had to go beyond that step, so far, everyone we’ve sent an order to has ultimately complied, but if they were to continue to ignore a order from the court requiring the destruction or removal of a record, the next step would be to contact a police department to initiate criminal charges against them.
The expunction and nondisclosure provisions of our state law are some of the most beneficial to citizens who have been accused of crimes.
If you believe you are eligible for an expunction or nondisclosure, or have a question about it, and are located in the North Texas area, give us a call. We’ll be happy to pull your record, take a look at the resolution, and advise you on whether or not you’re eligible for an expunction or nondisclosure. If you are eligible, we’ll help you obtain one.
We hope you found this information about expunctions and nondisclosures useful. For more information about clearing your record, please visit our page on Fort Worth Expunction Lawyer and Fort Worth Nondisclosure Attorney.
For more information about post-conviction possibilities, please visit Tarrant County’s Website.
Have more questions about expunctions or nondisclosures? Call us today at (817) 203-2220 or reach out online for a complimentary strategy session. During this call we will: