Frequently Asked Questions: Can You Get an Expunction?
Ask yourself these questions to see if you can get an expunction.
Have you have already pleaded guilty or no contest to a Class B Misdemeanor, a Class A Misdemeanor, or a felony?
If you answered “yes,” then you cannot get an expunction. If you have pleaded guilty or no contest to any of those, then you simply cannot get an expungement. You might be able to get an order of nondisclosure. But you definitely cannot get an expungement.
If you answered “no,” then read on.
Has your case been tried to either a judge or a jury and were you found not guilty of the crime with which you were charged?
If your answer is “no, I was not found not guilty. I was convicted,” then you cannot get an expunction.
If your answer is “yes, my case was tried to a judge or to a jury, and I was found not guilty,” then read on. If you were found not guilty, were you convicted of some other offense that came out of the same event that led to your charge? If your answer is yes, then you cannot get your arrest record expunged. If your answer is “no,” then are you still subject to prosecution for at least one other offense that occurred in the same event that led to your charge? If you answered “yes,” you will have to wait until the statute of limitations for that offense has passed.
If your answer is “my case was not tried at all,” then read on.
Was your case dismissed and were you charged with a felony or a misdemeanor?
If your answer is “my case was dismissed, and I was charged with a misdemeanor,” then please answer the other questions in this paragraph. Do you have any felony convictions within the 5 years before the arrest that led to you being accused of a misdemeanor? If yes, you can’t get an expunction. If no, then please answer the next questions. How much time has passed since you were arrested for the misdemeanor of which you were accused? If your answer is: two years or less, you will have to wait until two years and one day have passed. If your answer is: at least two years and one day, then you can apply for an expunction.
If your answer is “I was indicted for a felony, but the prosecutor dismissed the case against me,” then I have bad news for you. It is extremely difficult to get an expungement of a felony which has been dismissed. Here’s why: the law says that if you have been charged with a felony, then it cannot be expunged unless false information was presented to the grand jury and that false information resulted in a true bill of indictment against you. Proving that false information was presented to the grand jury is extremely difficult to do, in large part because grand jury proceedings are secret.
It boils down to this: it’s nearly impossible to get a felony indictment expunged off your record. The only way to get a felony charge expunged, as a practical matter, is if you were found not guilty. Otherwise, you’re frequently stuck with at least a record that the indictment against you was dismissed.
What is the difference between an expungement and an order of nondisclosure?
With an order of nondisclosure, the record exists, it’s just that the clerk of court and other agencies are under an order not to disclose that record with certain exceptions. It to one exception would be that you are applying for a job with the government, say as a law-enforcement agents. As you can imagine, the government would be interested in knowing whether you have been on probation or whether you have been charged.
Now, a few years ago, if you had your record expunged, then your criminal history with regard to that charge that was expunged should have been deleted out of the computers of both the state and the national crime index computers.
Earlier, I had written that the “the legislature messed up and changed the law so that even law enforcement agencies can hang on to records regarding your arrest,” and that “Rumor has it that this mistake will be corrected at the end of the next legislative session, but we’ll have to see which bills the Governor signs before we know anything for sure.”
Well, the Governor has signed the legislation correcting the problem, and expunctions have teeth now.
If you are eligible, call an attorney who practices in the county where your case was handled. Lawyers who don’t practice in that county won’t know the local practices on some of the finer, but still important, points.
I practice in Travis and Williamson Counties.