Both expunction and nondisclosure statutes contain tricky language, and it is highly recommended that you contact us for an interpretation of the “fine print.”
Expunctions
Art. 55.01. Right to Expunction, Texas Code of Criminal Procedure
(a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:
(1) the person is tried for the offense for which the person was arrested and is:
(A) acquitted by the trial court, except as provided by Subsection (c) of this section; or
(B) convicted and subsequently pardoned; or
(2) each of the following conditions exist:
(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:
(i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or
(ii) the court finds that the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;
(B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer nding and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor; and
(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.
(b) Except as provided by Subsection (c) of this section, a district court may expunge all records and files relating to the arrest of a person who has been arrested for commission of a felony or misdemeanor under the procedure established under Article 55.02 of this code if the person is:
(1) tried for the offense for which the person was arrested;
(2) convicted of the offense; and
(3) acquitted by the court of criminal appeals.
(c) A court may not order the expunction of records and files relating to an arrest for an offense for which a person is subsequently acquitted, whether by the trial court or the court of criminal appeals, if the offense for which the person was acquitted 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.
(d) A person is entitled to have any information that identifies the person, including the person's name, address, date of birth, driver's license number, and social security number, contained in records and files relating to the arrest of another person expunged if:
(1) the information identifying the person asserting the entitlement to expunction was falsely given by the person arrested as the arrested person's identifying information without the consent of the person asserting the entitlement; and
(2) the only reason for the information identifying the person asserting the entitlement being contained in the arrest records and files of the person arrested is that the information was falsely given by the person arrested as the arrested person's identifying information.
Art. 55.03. Effect of Expunction, Texas Code of Criminal Procedure
When the order of expunction is final:
(1) the release, dissemination, or use of the expunged records and files for any purpose is prohibited;
(2) except as provided in Subdivision 3 of this article, the person arrested may deny the occurrence of the arrest and the existence of the expunction order; and
(3) the person arrested or any other person, when questioned under oath in a criminal proceeding about an arrest for which the records have been expunged, may state only that the matter in question has been expunged.
Note: The bottom line: If you are eligible for an expunction you should contact an attorney to make sure that it is done right. If you are unsure if you qualify, contact a reputable attorney.
Art. 55.06. License Suspensions and Revocations. Texas Code of Criminal Procedure.
Records relating to the suspension or revocation of a driver’s license, permit, or privilege to operate a motor vehicle may not be expunged under this chapter except as provided in Section 524.015, Transportation Code, or Section 724.l048 of that code.
As a caveat, both Sections 524.015 and Section 724.048 provide that the disposition of a criminal charge does not affect a driver’s license suspension. However, a suspension may not be imposed if the person is acquitted of DWI, intoxication assault, intoxication manslaughter or DUI-Minor. In other words, you must be found not guilty to remove any reference to the suspension of the person’s driving record. A dismissed case does not qualify, and the suspension will stand and remains on the driving record.
Nondisclosures
Texas Government Code, Sec. 411.081 provides an avenue for nondisclosing criminal history record information to prevent government agencies from publicly disclosing the information to certain agencies and private entities.
This procedure is available to a qualified person who has successfully completed a deferred adjudication community supervision or probation and receives a discharges and dismissal of the case.
A person may file a petition for nondisclosure after:
(1) the discharge of probation and dismissal if the offense was for most misdemeanors.
(2) the second anniversary (2 years) after the discharge and dismissal if the offense was for a misdemeanor for unlawful restraint, public lewdness, indecent exposure, assault, deadly conduct, terroristic threat, bigamy, disorderly conduct and related offenses, obstructing highway or passageway, and unlawfully carrying a weapon.
(3) the fifth anniversary (5 years) after the discharge and dismissal if the offense for which the person was placed on deferred adjudication probation was a felony.
The person is entitled to file the petition only if, during the 2-year or 5-year waiting period, the person has not been convicted or placed on deferred adjudication probation for any offense other than a citation for a fine-only traffic offense.
A person is not entitled to petition the court if the person has been previously convicted or placed on deferred adjudication community supervision or probation for the following:
An offense requiring registration of a sex offender, aggravated kidnapping, murder, injury to a child, elderly or disabled person, abandoning or endangering child, violation of protective order, stalking, and any offense involving family violence.
A person who obtains an order of nondisclosure may deny having been arrested unless the criminal history information is being used against the person in a subsequent criminal proceeding. In other words, the person is not required to state in any application for employment or licensing, that he or she has been the subject of the criminal proceeding relating to the information in the order of nondisclosure.