Every time that I have someone come to my office looking to hire an attorney, they always tell me that they want their case dismissed. There are a lot of reasons to want a case dismissed. One of the main reasons is that this case does not show up on background checks for the rest of your life. You need to get an expunction for that to happen.
When I was charged with DWI, I was worried about how it was going to affect the rest of my life. After my case was dismissed, I didn’t know that I could get an expunction. Every time I applied for a job or for school, I would have to check off the box saying I had been arrested. I never knew how it was going to affect my getting the job I was applying for or getting into school.
An expunction solves all of those problems. To get the full benefit of a dismissal, you must clean your criminal record with an expunction.
What is an Expunction
An expunction is an order from the court demanding that all government agencies that have any record of your arrest to destroy those records. It also allows you to deny ever having been arrested for any arrest that is expunged. This should keep it from showing up on background checks. It also means that you don’t have to volunteer the information when filling out applications.
Why You Should Get an Expunction
If you are eligible for an expunction, you should get one. If an employer or anyone else does a background check on you, the charge that you already beat is going to show up. It should show that it was dismissed or that you beat it at trial, but an employer can use that information however they want to. They can deny you the job even if your case was dismissed or you were found not guilty at trial.
Even if you’re self-employed and not worried about background checks, the charge is going to follow you around. Anytime that you’re pulled over for speeding, the officer is going to see the charge when he runs your driver’s license.
If you are ever arrested again, that charge is going to show up. Even though it was dismissed, the prosecutor may be less likely to dismiss the next case or may give you a worse deal because this isn’t your first charge. I know that you probably don’t expect to be arrested again, but you probably didn’t expect to be arrested last time either.
Who is Eligible for an Expunction
There are several ways that you may be eligible for an expunction. The most common ways are if you were found not guilty at trial, if your case was dismissed, or if you completed a pretrial diversion program. You may also be eligible for an expunction if you completed veterans treatment court, mental health court, or if your case was filed in error.
If you were found not guilty at trial, you are eligible to get an expunction immediately. Most expunctions come after a case is dismissed. Getting your case dismissed is the hard part, but you also have to wait for the statute of limitations to pass. The statute of limitations for most misdemeanors is two years, and three years for most felonies. There are lots of exceptions where the statute of limitations may be longer depending on what you were charged with.
If you have multiple charges, the rules for felonies and misdemeanors are different. In misdemeanors, you can expunge any case that qualifies. Let’s say you were arrested for DWI and Unlawful Carry and the DWI was dismissed, but you were convicted for unlawful carry. You would be eligible to have the DWI expunged, but not the unlawful carry.
Felonies are different. If you have multiple charges arising out of the same incident, you must be eligible to expunge all cases or you won’t be able to expunge any of them. Let’s say you were arrested for DWI 3rd and Possession of a Controlled substance out of the same incident. If the DWI is dismissed, but you’re convicted for the possession case, you would not be able to get either expunged.
The law on who qualifies and who doesn’t is technical, so if you are trying to find out if you qualify, you should contact an attorney who handles expunctions.
What if You Don’t Qualify for an Expunction
If you don’t qualify for an expunction, you still may be able to clean up your record with an order of nondisclosure. An order of nondisclosure will seal your record. All the agencies with a record of your arrest will be able to keep their records, but they won’t be able to give that information out to most people doing background checks on you.
What is the Process for an Expunction
To get your case expunged, you must first ask the court to expunge your case with a petition that’s filed with the court. Once the petition is filed, a court date will be set out at least a month. Every government agency that has any record of your arrest must be notified that you are seeking an expunction and given the court date. If they don’t think that you qualify for an expunction, then any of them can come to the court date and argue against it. This rarely happens.
Generally, the district attorney’s office will review your request for an expunction. If they agree that you qualify for the expunction, they will agree to it. If they feel that you don’t qualify, they will not agree to it, but they’ll let you know why. If there’s a disagreement, you can set it for a hearing for the judge to decide. This is rare. After the district attorney’s office agrees to the expunction, the judge will sign the order.
After the judge has signed the order, it will be sent out to all the agencies originally notified. The order will demand that they destroy any record of the arrest or charge. This usually takes a couple of months for all the records to be destroyed.
Once the records are destroyed, anyone doing a background check on you should not be able to see those records so the arrest and charge shouldn’t show up.
How Long Does an Expunction Take
Once the petition is filed it can take four months or sometimes more for the case to stop showing up on background checks. It’s important not to wait until you need the case to stop showing up on your record to get an expunction. I always advise that people get an expunction as soon as they are eligible. If you wait until you need the charge not to show up, it’s probably too late.
What Will an Expunction Not Erase
Unfortunately, expunctions aren’t perfect. They only affect government agencies and normally only state government agencies. Expunctions are a creation of state law. The federal government does not always (rarely) follow orders from state judges. This means that if you have an immigration issue, are going into the military, or trying to become a pilot, you should assume that the charge is going to show up even if you had it expunged.
It also doesn’t force a private company to destroy its records. Sites that post mugshots have become common and the media regularly reports on some cases. Many of the websites showing mugshots will remove the mugshot if you get an expunction, but there’s no guarantee. If the media reported on your case, it will still be there even after an expunction.
What Do You Need to Do?
Fortunately, if you hire us or another attorney for your expunction, there’s not much for you to do. We will collect some information that is required on the expunction petition or expunction order. After that, we handle everything for you. You do not have to show up to court in San Antonio for an expunction.
We will keep you updated during the process and let you know when the order is signed so that we can mail it to you or so that you can pick it up.
Why You Shouldn’t Wait
The reason that most people get an expunction is so that an arrest doesn’t show up on background checks. Most background checks are done by employers. This means that getting an expunction is not a priority for most people because they already have a job. The reality is that we never know when we’re going to be looking for a job. We don’t plan to be fired or laid off. Even when we quit our job, it may be because of something unexpected that comes up. It’s better to be prepared so that when you do look for a job, planned or not, getting your old case expunged is one less thing you have to worry about.
Can I Do It Myself?
You can always represent yourself. I recommend against it when getting an expunction. When and how you may qualify for an expunction can be technical and the filing fee for an expunction in Bexar County is around $450 right now. You don’t want to pay the filing fee only later to find out that you don’t qualify for an expunction or you made a mistake on the petition. Additionally, you must list every agency that has any record of your arrest on the petition and order. If you miss an agency, they don’t have to destroy their records, and the charge could continue to show up on background checks.
It’s better to hire an attorney in your area who knows the process and the agencies that need to be served. That way you know that you qualify before applying and you know that all of the agencies that need to be included are.
If you have any questions about expunctions or if you’re being charged with a case in San Antonio, please feel free to call (210-900-2806) or schedule a free consultation.
The Law
CHAPTER 55. EXPUNCTION OF CRIMINAL RECORDS
Art. 55.03. EFFECT OF EXPUNCTION. When the order of expunction is final:
(1) the release, maintenance, dissemination, or use of the expunged records and files for any purpose is prohibited;
(2) except as provided in Subdivision (3) of this article, the person arrested may deny the occurrence of the arrest and the 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 the records have been expunged, may state only that the matter in question has been expunged.
Art. 55.01. RIGHT TO EXPUNCTION.
(a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:
(1) the person is tried for the offense for which the person was arrested and is:
(A) acquitted by the trial court, except as provided by Subsection (c);
(B) convicted and subsequently:
(i) pardoned for a reason other than that described by Subparagraph (ii); or
(ii) pardoned or otherwise granted relief on the basis of actual innocence with respect to that offense, if the applicable pardon or court order clearly indicates on its face that the pardon or order was granted or rendered on the basis of the person’s actual innocence; or
(C) convicted of an offense committed before September 1, 2021, under Section 46.02(a), Penal Code, as that section existed before that date; or
(2) 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 no court-ordered community supervision under Chapter 42A for the offense, unless the offense is a Class C misdemeanor, provided that:
(A) regardless of whether any statute of limitations exists for the offense and whether any limitations period for the offense has expired, an indictment or information charging the person with the commission of a misdemeanor offense based on the person’s arrest or charging the person with the commission of any felony offense arising out of the same transaction for which the person was arrested:
(i) has not been presented against the person at any time following the arrest, and:
(a) at least 180 days have elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a Class C misdemeanor and if there was no felony charge arising out of the same transaction for which the person was arrested;
(b) at least one year has elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a Class B or A misdemeanor and if there was no felony charge arising out of the same transaction for which the person was arrested;
(c) at least three years have elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a felony or if there was a felony charge arising out of the same transaction for which the person was arrested; or
(d) the attorney representing the state certifies that the applicable arrest records and files are not needed for use in any criminal investigation or prosecution, including an investigation or prosecution of another person; or
(ii) if presented at any time following the arrest, was dismissed or quashed, and the court finds that the indictment or information was dismissed or quashed because:
(a) the person completed a veterans treatment court program created under Chapter 124, Government Code, or former law, subject to Subsection (a-3);
(b) the person completed a mental health court program created under Chapter 125, Government Code, or former law, subject to Subsection (a-4);
(c) the person completed a pretrial intervention program authorized under Section 76.011, Government Code, other than a veterans treatment court program created under Chapter 124, Government Code, or former law, or a mental health court program created under Chapter 125, Government Code, or former law;
(d) the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense; or
(e) the indictment or information was void; or
(B) prosecution of the person for the offense for which the person was arrested is no longer possible because the limitations period has expired.
(a-1) Notwithstanding any other provision of this article, a person may not expunge records and files relating to an arrest that occurs pursuant to a warrant issued under Article 42A.751(b).
(a-2) Notwithstanding any other provision of this article, a person who intentionally or knowingly absconds from the jurisdiction after being released under Chapter 17 following an arrest is not eligible under Subsection (a)(2)(A)(i)(a), (b), or (c) or Subsection (a)(2)(B) for an expunction of the records and files relating to that arrest.
(a-3) A person is eligible under Subsection (a)(2)(A)(ii)(a) for an expunction of arrest records and files only if:
(1) the person has not previously received an expunction of arrest records and files under that sub-subparagraph; and
(2) the person submits to the court an affidavit attesting to that fact.
(a-4) A person is eligible under Subsection (a)(2)(A)(ii)(b) for an expunction of arrest records and files only if:
(1) the person has not previously received an expunction of arrest records and files under that sub-subparagraph; and
(2) the person submits to the court an affidavit attesting to that fact.
(b) Except as provided by Subsection (c) and subject to Subsection (b-1), a district court, a justice court, or a municipal court of record may expunge all records and files relating to the arrest of a person under the procedure established under Article 55.02 if:
(1) the person is:
(A) tried for the offense for which the person was arrested;
(B) convicted of the offense; and
(C) acquitted by the court of criminal appeals or, if the period for granting a petition for discretionary review has expired, by a court of appeals; or
(2) an office of the attorney representing the state authorized by law to prosecute the offense for which the person was arrested recommends the expunction to the court before the person is tried for the offense, regardless of whether an indictment or information has been presented against the person in relation to the offense.
(b-1) A justice court or a municipal court of record may only expunge records and files under Subsection (b) that relate to the arrest of a person for an offense punishable by fine only.
(c) A court may not order the expunction of records and files relating to an arrest for an offense for which a person is subsequently acquitted, whether by the trial court, a court of appeals, or the court of criminal appeals, if the offense for which the person was acquitted arose out of a criminal episode, as defined by Section 3.01, Penal Code, and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.
(d) A person is entitled to obtain the expunction of any information that identifies the person, including the person’s name, address, date of birth, driver’s license number, and social security number, contained in records and files relating to the person’s arrest or the arrest of another person if:
(1) the expunction of identifying information is sought with respect to the arrest of the person asserting the entitlement and the person was arrested solely as a result of identifying information that was inaccurate due to a clerical error; or
(2) the expunction of identifying information is sought with respect to the arrest of a person other than the person asserting the entitlement and:
(A) the information identifying the person asserting the entitlement was falsely given by the arrested person as the arrested person’s identifying information without the consent of the person asserting the entitlement; and
(B) the only reason why the identifying information of the person asserting the entitlement is contained in the applicable arrest records and files is because of the deception of the arrested person.
Sean Henricksen
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