Expunctions and Nondisclosures
Expunctions (Chapter 55 of the Code of Criminal Procedure)
Expunctions were created to give a way for a person who was wrongfully arrested to remove all traces of that arrest from the government’s records. The process, although conceptually simple, can be somewhat confusing and intimidating to those who aren’t familiar with it.
The statute that created expunctions has been amended and revised many times. As it exists today, with many technical and unusual requirements, some deserved expunctions can be denied, some underserved expunctions can be granted, and some may suffer criminal sanctions for failing to properly comply with an expunction order.
There are three major types of expunctions:
(1) Acquittals and Pardons: a person who has been acquitted (found “not guilty”) or pardoned of an offense is entitled to have the records of his arrest expunged.
(2) Dismissals and No-Bills: arguably the most complicated type of expunction is for offenses that never went to trial, whether because the arrested person was never formally charged (indicted) or because they were indicted but the case was dismissed before trial. These expunctions have two basic requirements: first, the petitioner must have been released with neither a final conviction nor court-ordered supervision (e.g. through successful completion of a pretrial intervention program or a Veteran’s Court program), and second, the statute of limitations has run, the indictment was dismissed (e.g. because it was based on mistake, false information, or other reasons that indicate a lack of probable cause), or a waiting period has passed.
(3) Identity Theft: identity theft is a growing problem, including in Texas, and the law has changed to accommodate victims. A person may get an identity theft expunction if: (1) the information identifying the petitioner was falsely given by the arrested person without the petitioner’s consent, and (2) the only reason the information is in the record is because the arrested person falsely gave that information. However, the identity theft expunctions now also extends to include: (1) people who were actually arrested, and (2) that arrest was solely a result of identifying information that was inaccurate due to a clerical error.
Nondisclosures (Chapter 411 of the Texas Government Code)
Unlike expunctions, which are intended as a remedy for the wrongfully arrested, nondisclosures act as a second chance for first-time or low-level offenders. An order of nondisclosure “seals” a person’s record and allows him to move forward without that arrest haunting his criminal history.
Nondisclosures were originally created as a mechanism to allow many defendants who received deferred adjudication to seal their records. Although deferred adjudication leaves a defendant without a conviction, without an order of nondisclosure, the case remains in his criminal record and may cause problems in the future. After a nondisclosure an ordinary background check will no longer reveal the case, and only law enforcement and certain state agencies will have access.
There are two prerequisites found in section 411.074 which a person must meet before they may petition for any of the eight categories of nondisclosure. First, the person must not have been convicted of or placed on deferred adjudication for any offense other than a fine only traffic violation for a certain time period. Second, the person must not have been convicted of or placed on deferred adjudication for:
1. An offense requiring one to register as a sex offender;
2. Aggravated kidnapping; murder, human trafficking, injury to child/elderly/disabled, violation of protective orders, stalking; or
3. Any offense involving family violence.
The statute divides nondisclosures into eight (8) categories:
1. For certain misdemeanor deferred (“automatic nondisclosures”),
2. For all other deferred adjudications,
3. Following misdemeanor community supervision,
4. Following other misdemeanor convictions,
5. Following DWI probation,
6. Following other DWI convictions,
7. After completing Veteran’s Treatment Court,
8. For human trafficking victims,
If a person meets the two base requirements of 411.074 and the requirements in any one of the eight categories, he is entitled to an order of nondisclosure.