William B. Mange

Criminal Defense Lawyer in Austin, Texas

Frequently Asked Questions: Can You Get an Expunction?

Ask yourself these questions to see if you can get an expunction.

Has your old 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 after the trial,” then you cannot get an expunction.

If your answer is “yes, my case was tried to a judge or to a jury, and yes I was found not guilty,” then lace on your running shoes. If you apply for your expunction within 30 days of the acquittal, you’re able to get it without paying so much in court costs. But before you taking off running, read on to make sure you’re eligible.

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, I was convicted of some other offense that came out of the same event,” then you cannot get your arrest record expunged.

If your answer is “no, I was not convicted of any other offense that came out of the same event,” 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 the date you allegedly committed the misdemeanor? 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 charged with a felony, but the prosecutor dismissed the case against me,” then please answer the rest of the questions in this paragraph. Was the charge for murder, manslaughter, sexual assault of a child or aggravated sexual assault, continuous sexual abuse of a young child or children, indecency with a child, leaving the scene of an accident that resulted in the death of a person? If your answer is yes, you cannot get an expunction. If your answer is “no, I wasn’t charged with any of those things,” then read on. Were you charged with theft of any estate when you were the executor, administrator, guardian, or trustee; theft by a public servant of government property; forgery or passing forged instruments (writings); first degree felony injury to an elderly or disabled individual; sexual assault other than of a child; or arson? If your answer is “yes, I was charged with one of those,” then you have to wait 10 years and 1 day after the date of the alleged offense. If your answer is “no, I wasn’t charged with any of those offenses,” then read on. Were you charged with misapplication of fiduciary property or property of a financial institution; securing execution of a document by deception (often times that is welfare fraud); any violations of the tax code; credit or debit card abuse; false statement to obtain property or credit (often times that is lying to a pawn shop employee by saying something is yours when you pawn it); or fraudulent use or possession of identifying information (identity theft); or money laundering? If your answer was “yes, I was charged with one of those,” then has it been seven years and one day since the date of the last alleged offense? If that was the offense charged, but that amount of time has not passed, then you have to wait the full period. If none of those were your offense, then read on. Were you charged with robbery; felony theft (at least $1500 or more); kidnapping; burglary; felony injury to an elderly or disabled individual that was not a first degree felony; abandoning or endangering a child; or insurance fraud? If your answer was “yes,” I was charged with that, then the question is, have 5 years and one day passed since the last date of the alleged offense? If yes, then you can apply for an expungement. If not, you have to wait the full 5 years and 1 day, but you need to read on anyway. You’ll see why. If none of those were the charge against you, then read on. Were you charged with employing, authorizing, or inducing a sexual performance of a child; aggravated kidnapping with intent to violate or abuse sexually; burglary of a habitation with intent to commit sexual assault; aggravated sexual assault; or continuous sexual abuse of a child? If your answer is “yes, I was charged with one of those,” then sit down because you’re going to have to do some math. First, if the victim was under 17 when the offense was alleged to have been committed, you need to know when the child turned 18. From that date, add 20 years and one day. Has that much time passed? If yes, then you can petition for expunction. If no, then you have to wait that period of time out. If none of those was your offense, then read on. Were you charged with indecency with a child, sexual assault of a child, or aggravated sexual assault of a child? If your answer is “yes,” then get pencil and paper because you’re going to have to do some math. First, you need to know when the child turned 18. From that date, add 10 years and one day. Has that much time passed? If yes, then you can petition for an expunction. If not, you have to wait the full period. If your answer is “I wasn’t charged with any of those things,” then read on. Since you weren’t charged with any of those things, have 3 years and 1 day passed since the last alleged date of your offense? If your answer is “yes,” then you can apply for an expungement. If your answer is “no,” then you have to wait the full period.

Now, sometimes, on rare occasions, someone is able to prove that the indictment or information (the piece of paper that charged you with a crime) was dismissed because of a mistake or some reason indicating the absence of probable cause at the time of the dismissal. But honestly, it’s nearly impossible to get a felony indictment expunged off your record for that reason.

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.