Every day American citizens are wrongfully arrested due to mistakes ranging from simple clerical errors to over-reaction by law enforcement officers: often it is merely a case of someone being in “the wrong place at the wrong time”. In other situations a person may have been arrested with probable cause only to be found not guilty, or have their charges dropped or dismissed after counseling. Most people mistakenly believe that their arrest record is erased in such instances. If this is the case, feel free to contact and visit Dale Carson Law today for a free consultation.
However this is simply not the case: all of these events are placed on your criminal record and are made public, and even a minor offense like public intoxication or disorderly conduct can be viewed by potential employers, landlords or business concerns. In addition, nearly 2 million people have accepted Deferred Adjudication probation for misdemeanors and felony arrests with the misconception that once the probation period was over and the charge “dismissed” that it would not be on their records.
Expunctions were created as a means of allowing a person who was wrongfully arrested or accused of a crime to remove all traces of that arrest from the state’s records. With a few exceptions many criminal cases that have been dismissed, rejected or declined for prosecution are eligible for expunction. Additionally, completed pre-trial diversions, “not guilty” verdicts and Class “C” misdemeanor deferred dispositions are also eligible. A Petition for Expunction is filed in District Court, and the process is actually a civil lawsuit requesting that the Court issue an order forcing specific agencies to delete, erase, or destroy their records for an individual’s criminal record or specific criminal offense. If an expungement is successful an individual may legally deny being arrested in that specific case.
Not everyone has the right to have their record expunged: there are limitations on what types of charges can be removed, and each case must be reviewed to determine the qualification of the specific individual. For example, if you have actually been convicted of a crime it cannot be expunged. You cannot have plead guilty to any other charges arising out of the same criminal offense, and deferred adjudication cases cannot be expunged. You cannot petition for expunction in a case where you intentionally or knowingly absconded jumped bail after being released on bond. And people arrested for community supervision or parole violations are not eligible for an expunction.
Recent Changes to Texas State Expunction Laws:In 2011 the Texas State Legislature amended Chapter 55 of the Texas Code of Criminal Procedure, which governs the expunction of arrest records, court records and criminal history record information. One change is a new eligibility for persons granted relief on the basis of actual innocence: previously, a person who had been convicted but later pardoned could have their record expunged but a person who was convicted and later found to be innocent through normal legal channels could not. Another change allows the prosecutor to agree to an expunction. Prior to this amendment any agency listed in the petition such as the Texas Department of Public Safety could oppose it: in cases where it is obvious no charges should have been filed in the first place this removes unnecessary barriers and the Legislature agreed that the individual should not be forced to wait. One other important change removed the restrictions that prohibited an individual from receiving an expunction if they had been convicted of a felony in the five years before the arrest.
The new law also changed the waiting periods required for obtaining an expunction of records in Texas. Previously the courts have required individuals to wait until the statute of limitations expires before applying for an expunction, which meant that in cases where there is no statute of limitation such as murder you could never have your record cleared even if you were absolved of the crime. There are also charges with lengthy statutes of limitation, such as sexual assaults. The legislature has now defined specific waiting periods: 180 days for a Class C misdemeanor, 1 year for Class A & B misdemeanors and 3 years for felonies Any time after arrest if the attorney for the State certifies that the files are not needed for any subsequent criminal prosecution, or if the limitations period has actually expired.
The burden of course is on the applicant to prove that they were released and that charges are no longer pending. For cases that are formally filed by an indictment but are later dismissed the person must still wait until the statute of limitations expires to petition for expunction.
A defendant will enter a guilty plea, but the judge does not actually find the defendant guilty and instead “defers” the finding of guilt.
Unlike regular or straight, probation which may allow people to avoid incarceration or other punishments after being convicted of a crime, deferred adjudication permits that if the person satisfactorily completes the probation period and any other requirements the charges are dismissed and the person does not receive a final conviction. However, if the person violates the terms of his or her deferred probation, the state can file a motion to adjudicate and the judge can sentence the person to any term within the statutory range.