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Expunctions, Motions for Nondisclosure and Sealing of Juvenile Records 

In Texas, there are three main ways to try and "clean up" your criminal record- Expunctions, Motions for Nondisclosure and Sealing of Juvenile Records. What follows are some facts concerning these three different procedures.  For further information, contact expunction attorney Lars Isaacson, today!

A.            Expunctions:

Under Texas Code of Criminal Procedure Section 55.01, criminal and arrest records can, in certain circumstances, be “expunged.” Through an expunction attorney, a person who has been placed under custodial or noncustodial arrest for commission of either a felony of misdemeanor, is entitled to have all records and file relating to the arrest expunged if:

The person is tried for the offense in which the person was arrested and is

       Acquitted by the trial court (with certain exceptions);

       Convicted and subsequently pardoned; or

       Each of the following conditions exist:

              No indictment or information is pending, or if an indictment or information is pending, it has been quashed; and, either:

              The limitations period has expired before the date on which the petition for expunction has expired; [Two years for all misdemeanors; various times depending on type of felony involved]; or

              The court finds the indictment or information was dismissed or quested due to mistake, false information, or other similar reason indicating the absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void.

AND

              The person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending, and there was court ordered community supervision under 42,12 other than a Class C misdemeanor;

AND

             The person has not been convicted of a felony in the five years preceding the date of arrest.

It should be noted that there are numerous twists and turns in the State Texas Expunction law, and certain appeal courts interpret this statute differently, especially when expunctions can be applied for in misdemeanor cases. Please contact me to discuss your specific situation.

Justice/Municipal Court- Deferred Adjudication Expunctions: An additional statute concerning expunction is found in Section 45.051 of the Texas Code of Criminal Procedure. That statue notes that in justice and magistrate courts, a judge may defer adjudication for a period not to exceed 180 days.  If the case is then dismissed, the records of this offense and arrest may be expunged, with the exception of an offense committed by a person who holds a commercial drivers license or who commits the offense of leaving an unattended motor vehicle. 

Conviction of a Minor for Alcohol Offenses Expunctions: Chapter 106 of the Texas Alcohol and Beverage Code lists numerous criminal offenses for minors consuming or in possession of alcohol, including driving under the influence of alcohol by a minor. Section 106.12 provides that “any persons convicted of not more than one violation of [Chapter 106] while a minor, on attaining the age of 21 years, may apply to the court in which he was convicted to the conviction expunged.”  Chapter 106.071 provides that an adjudication of guilt and an order of deferred disposition are both considered a conviction under Chapter 106.

B.         Order of Non-Disclosure

Second, State Agencies can be ordered to not disclose a person’s criminal record to the pubic.  If a person is placed on deferred adjudication community supervision under Section 5, Article 42.12 of the Texas Code of Criminal Procedure and subsequently receives a discharge and dismissal under Section 5 of Article 42.12, that person may be eligible to petition the Court to prohibit criminal justice agencies from disclosing to the public criminal history record information giving rise to the deferred adjudication.

Not all offenses in which someone received a deferred adjudication are eligible to for such an order.  These include: offenses requiring registration as a sex offender; offenses under 20.04, 19.02, 19.03, 22.04, 22.041, 25.07 or 42.072 of the Texas Penal Code or “any other offense including family violence” as defined by section 71.004 of the Texas Family Code.

Further, a person is only entitled to an order if the person if that person has not been convicted of or placed on a second deferred adjudication supervision under Section 5, Article 42.12 of the Texas Code of Criminal Procedure for any offense other than an offense under the Transportation Code punishable by fine only since the date of the original deferred adjudication.

Effective in 2005, a person on their own or through an expunction attorney may file a petition for non-disclosure no earlier than: (1) the fifth anniversary of the discharge and dismissal of a felony change; (2) the second anniversary of if the discharge and dismissal of certain misdemeanors listed in the statute and (3) the date of discharge and dismissal of other misdemeanor offenses.

The benefit of such an order is set out in Section 552.142(b) of the Texas Government Code: “a person who is the subject of information that is [subject to the order of non-disclosure] may deny the occurrence of the arrest and prosecution to which the information relates, and the exception of the information under this section, unless the information is being used against the person in a subsequent criminal proceeding.” Criminal penalties are provided under Section 552.1425 of the Texas Government Code for persons or entities that improperly disseminate information subject to the order of non-disclosure.

C.        Sealing of Records:

Third, certain juvenile records can be sealed. Texas Family Code Section 58.003 provides that on the application of a person who has been found to have engaged in delinquent conduct or conduct indicating a need for supervision, or a person taken into custody to determine whether the person engaged in delinquent conduct or conduct indicating a need of supervision, on the juvenile court’s own motion or in receipt of a certification from the Department of Public Safety of the State of Texas that the records of a person are eligible for sealing under this section, the court shall order the sealing of the records in the case if the court finds that:

     Two years have elapsed since the final discharge of the person or since the last official action in the person’s case if there was not adjudication; and

      Since the time specified in subdivision (1), the person has not been convicted of a felony, or a misdemeanor involving moral turpitude or found to have engaged in delinquent conduct or conduct indicating a need for supervision and no proceeding is pending seeking conviction of adjudication.

Certain persons are not eligible for sealing, including certain violent and habitual criminals. Persons who were adjudicated by the juvenile court as engaged in delinquent conduct that violated a penal law of the grade of felony are entitled to have these records sealed only if: (1) the person is 21 years of age or older; (2) the person was transferred by a juvenile court to a criminal court for prosecution, (3) the records have not been used in the punishment phase of a criminal proceeding; and (4) the person has not been convicted of a penal law of the grade of felony after becoming the age of 17. 

A person whose records are sealed is not required in any proceeding or in any application for employment, information or license from the state that the person has been the subject of a proceeding under this title. However, a prosecuting attorney may bring an application to unseal these records for the purpose of proving a defendant is a repeat offender in state court.

Denton Criminal Attorney Lars Isaacson is an experienced expunction attorney. Please contact him today if you have additional question.