An arrest record is a glaring red flag to future employers, educators and professional relationships. And it has the potential to be a lifelong nuisance. In Texas, though, there are some legal tools that can be used to remove or seal up an arrest record, ensuring that it doesn’t harm future employment or relationship opportunities. Known as expunction or non-disclosure orders, these options are only available in some circumstances and for some offenses, and they are often up to the discretion of the judge. With so many moving parts, it makes sense to speak with an attorney who has experience in the area.
First, a quick snapshot into both expunction and non-disclosure orders, as they are very similar to each other.
- Expunction – When an arrest record or court case is expunged in Texas, it is completely removed from all records from all agencies involved in the case. This includes computer records, the digital fingerprints, so the arrest is, in effect, purged from the government’s memory. Once expunged, the arrest cannot be accessed by any agency that searches for or sells public records, as court records no longer exist. Also, the defendant may deny that the arrest occurred unless questioned under oath. If questioned under oath, the defendant may respond by stating that the arrest was expunged.
- Non-disclosure order – For the most part, a non-disclosure order is similar to expunction. However, a criminal record that has been sealed by a non-disclosure order is not removed from the record, so it is accessible in a few circumstances. For practical purposes, though, a non-disclosure order will do what expunction will do. No agency available to the general public may access a sealed criminal record, under penalty of law. This means that only a few regulatory bodies and law enforcement agencies may access a sealed record. Non-disclosure orders are not automatically provided. They are only allowed in most cases at the discretion of the judge, so even if a non-disclosure order is technically allowable, the judge may still refuse one.
The important point is that both expunction and non-disclosure make it less likely for employers and the general public to access elements of a defendant’s criminal record. They also generally allow a person to deny the existence of the criminal past. This a form of legalized lying.
These are powerful tools that can help a defendant put an arrest behind them, but they are only available in some circumstances. Those circumstances include:
- A Class C misdemeanor that was punishable by fine only may be expunged if the defendant completed deferred adjudication or disposition satisfactorily, if the case was dismissed, or if a judge or jury reached a Not Guilty verdict. There are additional rules in place if the offense is alcohol-related and involves a minor. Ticket type cases that should seriously consider expunctions are theft (shoplifting), minor in possession of alcohol, assault and the like.
- The defendant was arrested but later acquitted of the charges.
- The defendant was arrested but the charge was dismissed without a conviction. This is usually the case when a prosecutor determines that the charge was built on inadequate evidence or witness unavailability.
- Satisfactory completion of deferred adjudication of certain misdemeanors, and even after conviction or regular probation of certain misdemeanors.
- Some offenses committed while a juvenile – The law looks upon a juvenile offender with more leniency in some cases. If the offense was a misdemeanor punishable by a fine, an offense under the state Alcoholic Beverage Code or an offense committed under the state Education Code, it may be eligible for expunction. Expunction may not be offered if there are disqualifying factors present, like multiple convictions.
There are plenty of circumstances that permit an expunction or a non-disclosure. Determining eligibility is the first requirement. The only way to know for sure is to check with the assistance of an experienced and knowledgeable expunction attorney. If a case fits the criteria, then there are numerous additional steps to be taken and detailed information to be gathered. A qualified attorney can help expedite the process and assist their client with managing their criminal record.