Whenever someone is arrested for any offense in Texas,
records of the arrest and the charge begin to accumulate immediately. The
officer files a report with his agency. The jail where you were taken has a
record. The case report and evidence will be sent to the district attorney who
then has records. Once formal charges are filed, the county or district clerk
will have records. Finally, much of the information associated with the charge
is sent to DPS where it is maintained in a criminal records index. This index
is what we commonly refer to as someone’s “criminal record.” When someone like
a police officer checks a person’s “criminal history,” what he is checking is
the information on file with DPS about that person. Naturally, someone with a lot
of prior convictions could have offenses from various counties in Texas
maintained by DPS in his criminal history. That index maintained by DPS is also
reported to the FBI. The same index is what is used by private companies such
as PublicData.com, so when a private employer does a criminal background check,
he is typically getting the data from a company like PublicData.com that has,
in turn, gotten it from DPS. Some counties such as Collin County are also
independently reporting information to companies like PublicData.com, meaning
that information about a charge could appear even if it’s not in the person’s
criminal history maintained by DPS. |
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A successful order of expunction requires officials to either delete all records of an offense from computer
databases and/or send all paper records to the court, where they're either
destroyed or retrieved by the person who was arrested. An expunction is a wonderful tool, but is only avilable in specific instances. Those instances are:
- Acquittal. If you go to trial, whether a judge or jury trial
and are found not guilty, then you are entitled to have the charge expunged
from your record. The only exception is where you were convicted of an offense
that arose out of the same transaction or where that matter is still pending.
For example, you get arrested for possession of marijuana and DWI. At trial,
you're acquitted of the DWI and convicted of the possession of marijuana. You
would not be able to have either charge expunged.
- Dismissal. If you were arrested for an offense and the
charge is later dismissed or if formal charges were never filed, then you are
entitled to an expunction once the statute of limitations has run. The statute
of limitations for misdemeanors is two years. Many felony charges have much
longer limitations, but the default is three years. Depending on why your
charge was dismissed, however, you may not have to wait for the limitations
period to run. For example, if you charge was dismissed and there was never any
probably cause to arrest you in the first place, then you do not have to wait.
Generally speaking, if your charge was dismissed in a manner that precludes
further prosecution, then you do not have to wait to have it expunged.
- Deferred adjudication for a class-c misdemeanor. This one is
one of my favorites and it's one that, amazingly, many of my colleagues don't
know about. I've had many clients argue with me about it because they've
consulted with other lawyers that have misinformed them. If you are arrested for
a charge and it gets reduced to a class-c misdemeanor and you get deferred
adjudication, then you will be able to have that charge expunged, no different
than if it was dismissed outright.
- Pre-trial Diversion.
Pre-trial diversion is an option that has only become available rather
recently. A pre-trial diversion
agreement is done outside of court and through the DA's office. It's like being
on probation, but, because no plea is ever entered in court and no court-ordered
supervision takes place, the law allows for the expunction of the offense
immediately upon successfully completing the pre-trial diversion program.
- Pardon. If you've been pardoned for a particular offense by
the governor of Texas, then you may have that charges expunged.
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A nondisclosure is not as powerful as an expunction, but is still an excellent device if one can be obtained. An order of nondisclosure prohibits criminal justice agencies from disclosing to the public criminal history record information related to an offense. The government can always see this information, but your private employer will not be able to access that information. Unlike an expunction, which destroys the record, a nondisclosure hides your criminal history from the public. A nondisclosure is available to individuals who successfully complete deferred adjudication community supervision. |
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