Texas Expunctions & Non-Disclosure Orders

Question 1

Who has a right to have all records and files related to an arrest expunged?

Answer 1

1. a person who has been placed under custodial or non-custodial arrest for a felony or misdemeanor;
2. the person is tried for the offense and

a. acquitted by the trial court; or
b. convicted and subsequently pardoned or granted relief on an actual innocence claim.

3. the person has been released and the charge has not resulted in a final conviction and is no longer pending and there was no court-ordered community supervision provided an indictment or information has not been presented against the person and

a. at least 180 days have elapsed from date of arrest for expunction of a Class C misdemeanor;
b. at least one year has elapsed from date of arrest for expunction of a Class A or B misdemeanor;
c. at least three years have elapsed from date of arrest for expunction for a felony; or
d. attorney for the state certifies the applicable records and files are not needed to investigate or prosecute another person.

4. if an information or indictment has been presented, it was dismissed or quashed, and court finds it was because a person completed pretrial intervention program or because it was made due to mistake, false information, or other similar reason indicating absence of probable cause at time of dismissal to believe the person committed the offense or because the indictment was void; or
5. prosecution is no longer possible because the limitations period has expired.

Question 2

Is a person who intentionally or knowingly absconds for the jurisdiction after being released eligible for an expunction?

Answer 2

No.

Question 3

What court has jurisdiction to expunge records and files?

Answer 3

Only a district court has jurisdiction for felonies and misdemeanors.

Question 4

What happens if a person who is acquitted of an offense that arose out a of a criminal episode and he remains subject to prosecution for at least another offense from that criminal episode?

Answer 4

The court may not order an expunction.

Question 5

When can a “close relative” file for an expunction on behalf of a person?

Answer 5

When the person is deceased and the court finds the person would be entitled to an expunction if not deceased.

Question 6

What is the procedure for obtaining an expunction after an acquittal in a trial court?

Answer 6

The trial court shall enter of expunction not later than the 30th day after the date of acquittal. If the defendant had an attorney at trial, the attorney shall prepare the order for the court’s signature. If the defendant did not have an attorney, the attorney for the state shall prepare the order.

Question 7

What is the procedure for obtaining an expunction in cases other than a trial court acquittal?

Answer 7

The person entitled to an expunction must file a verified petition in a district court in the county of arrest setting forth the statutory information.

Question 8

When can a hearing on the expunction petition be set?

Answer 8

No sooner than 30 days from the filing of the petition.

Question 9

How are the agencies named in the petition given notice of the expunction hearing?

Answer 9

By CMRRR or secure email, electronic transmission, or facsimile transmission.

Question 10

How does a person who identity has been falsely used file for an expunction?

Answer 10

By filing a verified petition with the attorney for the state who prosecutes felonies in the county where the person resides. Must include fingerprints and a statement the applicant is not the person arrested and the applicant did not give consent to person to falsely identify himself as applicant.

Question 11

What is the effect of an expunction?

Answer 11

1. release of the records and files is prohibited;
2. the person may deny the occurrence of the arrest and 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 records have been expunged, may state only the matter in question has been expunged.

Question 12

What is the remedy for a violation of an expunction order?

Answer 12

A person commits an offense if he knowingly releases, disseminates, or otherwise uses the records or files. A person also commits an offense if he knowingly fails to return or to obliterate identifying portions of a record or file ordered expunged.

An offense is a Class B misdemeanor.

Question 13

When may a person file a petition for an order of non-disclosure?

Answer 13

• placed on deferred adjudication
• receives a discharge and dismissal
• files a petition on or after the discharge and dismissal for a misdemeanor other than:
  • unlawful restraint
  • public lewdness or indecent exposure
  • assault
  • harboring a runaway child or violation of PO or bond
  • disorderly conduct, riot, obstructing roadway, etc.
  • weapon offenses
• must wait two years to file petition for above misdemeanor offenses
• must wait five years to file petition for felony offenses

Question 14

When is a person not entitled to an order of non-disclosure?

Answer 14

• if the person is convicted or placed on DFAJ for any offense except an offense under Transportation Code during period of DFAJ they seek order for
• if the person was placed on DFAJ for or has been previously convicted for or placed on DFAJ for:
  • a registration offense
  • aggravated kidnapping
  • murder or capital murder
  • injury to child, disabled, or elderly
  • abandoning or endangering a child
  • violation of protective order or bond
  • stalking
  • any offense involving family violence

Question 15

When is the court required to hold a hearing on a petition for non-disclosure?

Answer 15

A hearing is required EXCEPT:

 - the State does not request a hearing before 45th day after date they receive notice; AND
 - the Court determines the defendant is entitled to file the petition; and
 - the order is in the best interest of justice