What is an expunction and why should I get one?
An expunction is a legal mechanism to remove all information about an eligible and qualified criminal episode from your record.
In order to qualify for an expunction, your offense must meet the following criteria:
· You were wrongly arrested, but never prosecuted
· Your case was dismissed
· You went to trial and the Judge or Jury found you Not Guilty or
Why should you get an expunction?
Just because your case was dismissed doesn’t mean that the record of your case is gone. If you have a professional career—whether you’re a healthcare professional—the stakes are high if you have a blemish on your record.
If you drive a vehicle professionally or your company or a company you’re thinking about joining perform background checks—an expunction makes sense. If you’re a pilot, you could lose your license or denied one if you have a DWI on your record.
Although don’t have criminal charges pending against you, your criminal case can follow you around for the rest of your life. It can linger on your record just waiting to affect you when you least expect it:
· Applying for a new job
· Helping at your child’s school where a background check is required
· Professional licensing board application or renewal
· Applying for housing
· You get arrested for DWI again and your previous case is used against you to make your punishment more severe
How to know if your case is eligible for an expunction.
Here are the circumstances that may help you understand if your case is eligible for expunction:
1. You were arrested but never charged for a crime.
2. You were charged with a criminal crime, but it was ultimately dismissed.
3. You were charged with a certain qualifying misdemeanor juvenile offense that is if a “child” is convicted of only one charge punishable by fine only or a violation of a penal ordinance of a political subdivision or only one charge of Electronic transmission of visual material under 43.261 (see. CCP 45.0216 below)
4. You are a minor convicted of only one charge of a crime detailed in Ch. 106 such as Possession of Alcohol by a minor, Purchase of alcohol be a minor, Driving a motor vehicle with any detectable amount of alcohol. (See Alcoholic Beverage Code Ch. 106. Sec. 106.12).
5. You were convicted for failure to attend a public school.
6. You have an arrest, charge or conviction record because someone stole your identity and they were actually arrested, charged or convicted of a crime under your identity.
7. You were convicted of a crime that was later acquitted by the trial court or the Criminal Court of Appeals.
8. You were convicted of a crime that was later pardoned by the Governor of Texas or the US President.
Okay, your case is eligible for expunction, but it may not qualify.
Just because your case may be eligible, doesn’t mean it qualifies for expunction. The court will not grant your expunction if you’ve been placed on felony probation, deferred adjudication or convicted of a felony within 5 years after the arrest for the eligible case.
Additionally, eligible cases don’t qualify until the statute of limitations has expired. The statute of limitations is the period of time after a crime was committed in which the state or county can legally prosecute. The statute of limitations is different depending on the crime.
How to get your case expunged
As with any complex legal issue, you should call an experienced Houston DWI attorney to ensure that your case is eligible for an expunction and that it’s handled effectively. The only thing worse then not filing an expunction to clear your record is filing an expunction ineffectively. You don’t want to think that your record is clear, then later realize that someone like an employer, or law enforcement official can still view your criminal record. By then, it’s too late.
How does the expunction process work?
The courts can be complicated and confusing, so filing your petition for an expunction correctly can be daunting. At Trichter and LeGrand, we file expunction petitions every day. We understand how an effective petition should be structured and what it should say and how it should be written.
We know what documents need to be filed on your behalf and how to frame the proper information so that it places you in the best possible light. We check and recheck our documents to avoid errors and make sure they are thorough and truthful.
We know the process and, if you meet all of the requirements, we hope to receive an Order of Expunction. If that happens, the signed Order is sent to each of the named agencies requiring them to destroy any and all records detailed in the Petition.
Congratulations, your record is clear.
Here is what the Texas Code of CrimiProceduredure says in regards to expunctions:
Art. 45.0216. EXPUNCTION OF CERTAIN CONVICTION RECORDS. (a) In this article, “child” has the meaning assigned by Section 51.02, Family Code.
(b) A person may apply to the court in which the person was convicted to have the conviction expunged as provided by this article on or after the person’s 17th birthday if:
(1) the person was convicted of not more than one offense described by Section 8.07(a)(4) or (5), Penal Code, while the person was a child; or
(2) the person was convicted only once of an offense under Section 43.261, Penal Code.
(c) The person must make a written request to have the records expunged. The request must be under oath.
(d) The request must contain the person’s statement that the person was not convicted of any additional offense or found to have engaged in conduct indicating a need for supervision as described by Subsection (f)(1) or (2), as applicable.
(e) The judge shall inform the person and any parent in open court of the person’s expunction rights and provide them with a copy of this article.
(f) The court shall order the conviction, together with all complaints, verdicts, sentences, and prosecutorial and law enforcement records, and any other documents relating to the offense, expunged from the person’s record if the court finds that:
(1) for a person applying for the expunction of a conviction for an offense described by Section 8.07(a)(4) or (5), Penal Code, the person was not convicted of any other offense described by Section 8.07(a)(4) or (5), Penal Code, while the person was a child; and
(2) for a person applying for the expunction of a conviction for an offense described by Section 43.261, Penal Code, the person was not found to have engaged in conduct indicating a need for supervision described by Section 51.03(b)(6), Family Code, while the person was a child.
(f-1) After entry of an order under Subsection (f), the person is released from all disabilities resulting from the conviction and the conviction may not be shown or made known for any purpose.
(g) This article does not apply to any offense otherwise covered by:
(1) Chapter106, Alcoholic Beverage Code; or
(2) Chapter 161, Health and Safety Code.
(h) Records of a person under 17 years of age relating to a complaint may be expunged under this article if:
(1) the complaint was dismissed under Article 45.051or 45.052or other law; or
(2) the person was acquitted of the offense.
(i) The justice or municipal court shall require a person who requests expungement under this article to pay a fee in the amount of $30 to defray the cost of notifying state agencies of orders of expungement under this article.
(j) The procedures for expunction provided under this article are separate and distinct from the expunction procedures under Chapter 55.
Added by Acts 2001, 77th Leg., ch. 1297, Sec. 50, eff. Sept. 1, 2001.
Acts 2005, 79th Leg., Ch. 886 (S.B. 1426), Sec. 2, eff. September 1, 2005.
Acts 2011, 82nd Leg., R.S., Ch. 1322 (S.B. 407), Sec. 13, eff. September 1, 2011.
Acts 2011, 82nd Leg., R.S., Ch. 1322 (S.B. 407), Sec. 14, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 1299 (H.B. 2862), Sec. 3, eff. September 1, 2013.
Acts 2015, 84th Leg., R.S., Ch. 935 (H.B. 2398), Sec. 2, eff. September 1, 2015.
Acts 2015, 84th Leg., R.S., Ch. 1132 (S.B. 108), Sec. 1, eff. September 1, 2015.
Acts 2017, 85th Leg., R.S., Ch. 324 (S.B. 1488), Sec. 5.002, eff. September 1, 2017.
Acts 2017, 85th Leg., R.S., Ch. 685 (H.B. 29), Sec. 13, eff. September 1, 2017.