Do I have a criminal “record”?
Many people have the misconception that if their case was dismissed, the records no longer exist. If you have been arrested and charged with a crime, getting the case dismissed does not mean that the records disappear. Granted, a “criminal record” does not exist, but any and all entities that made a record of your arrest and/or prosecution retain those records, unless a court orders the destruction of those records.
The County or District clerk’s office, or the Municipal Court where you were charged, has a file concerning the incident, many of which are public information. That means future employers, credit services, banks or any other person or entity that wants to search your past records can do so.
The accessibility of these records becomes easier as more and more of these records are computerized. Anyone can discover prior criminal conduct by simply searching for your name at the county courthouse or municipal court or even on-line if they know where to search. More and more companies use these background searches as screening tools of potential employees. The record of the arrest, the offense report, fingerprints, case disposition, etc. are still around unless you act to expunge the record.
Can my record be expunged?
You may be able to have your criminal records expunged (erased) under certain circumstances.
If you have been arrested and charged with a crime and the charges were dismissed or you were acquitted, it may be possible to have this entire record destroyed if you qualify under the statute.
If the case involved a misdemeanor arrest in which the case was ultimately dismissed without the imposition of court ordered supervision, you are entitled, as a matter of law, to have these records expunged. If you are placed on deferred adjudication probation (court ordered supervision), you are not entitled to have your records expunged; although successfully completing a term of deferred adjudication does not result in a conviction, your criminal history will always show that you were arrested, charged and the case was dismissed.
If you are arrested for a felony and the case is dismissed before an indictment is returned against you, you also are entitled to have your records expunged. If you are indicted for a felony and you are acquitted at trial, then the records may be expunged. If the DA’s office dismisses the case after indictment or the indictment is quashed, then you must demonstrate that the indictment presented to the Grand Jury was as a result of a mistake, false information, or other similar reason indicating absence of probable cause at the time of dismissal. If this cannot be demonstrated, then the citizen must wait until the statute of limitations runs for the particular offense that was charged.
One last requirement is that the person seeking expunction has not been convicted of a felony in the five (5) years preceding the date of the arrest. Other limitations may also arise depending on the date of the arrest, as the Texas Legislature has amended the expunction statute in Sept, 2001.
Who knows what my record is?
If you have been arrested and charged with a crime, records relating to your arrest and identifying information are entered throughout the criminal justice system. Imagine the flow of information, the arresting agency, for example, Houston Police Department, enters your name into their computers. Upon arriving at the jail, the record of your arrest is entered into the jail records; photographs and fingerprints are taken and sent to the Texas Department of Public Safety, where a file with your name is opened and those items are recorded and stored. DPS can also forward these records to federal law enforcement agencies.
If you were interviewed by Harris County Pre-Trial Services for release on personal bond, your information will be entered in their computer. The Harris County District Clerk and the District Attorney’s Office will both open files and enter your information into their computers.
If the arrest involved a driver’s license suspension, whether ultimately suspended or not, Texas DPS will make those notations in your Driving Record. Not only is the traditional paper trail growing, the “digital” paper trail grows.
Criminal records are maintained by the Texas Department of Public Safety in the Texas Crime Information Computer (TCIC) and the Federal Bureau of Investigations in its National Crime Information Computer (NCIC). These agencies’ record databases are not open to the public, but law enforcement and prosecutorial offices can check these records any time they like. The general public does have access to files in all District and County Clerk’s Offices in the State of Texas.
What is involved in an expunction?
In order to have your records expunged, a Petition for Expunction must be drafted and filed in the District Court of the county where you were arrested; all parties retaining records must be named and served; and the petition must be presented to the Court for ruling.
Once the Court determines that you qualify under the statute, the Court orders that any agency or entity named that has in their possession any record of your arrest or prosecution is ordered to destroy the entire record, fingerprints, booking photo, arrest report, including the DPS records. It is as if the arrest never occurred.
What is the effect of an expunction?
The legal effect of the expunction is:
- The release, dissemination, or use of the expunged records and files for any purpose is prohibited;
- You may deny the occurrence of the arrest and the existence of the expunction order, with the exception of the following;
- You 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. (See Texas Code of Criminal Procedure, Art. 55.03).
Any citizen that would like to explore the possibility of expunging their records, but are unsure about whether or not they may qualify, should consult with an attorney to determine if it is a remedy available to them to clear past records that may appear in the future.
Non-disclosure of records & deferred adjucation
Unfortunately, many people are told that if they agree to a term of Deferred Adjudication, it will result in no “criminal record” and the case is dismissed after you successfully serve the probation period. This is partially correct. The case is dismissed, however the records of the arrest, prosecution and deferred adjudication remain in the public records for all to see.
Successfully completing a term of deferred adjudication does not result in a conviction, but your criminal history will always show that you were arrested, charged and the case was dismissed.
If you have been placed on court ordered supervision, you are not entitled to have your records expunged, however the Texas Legislature has recently provided a new mechanism that may shield certain criminal cases records relating to deferred adjudication by sealing those records from public view. This requires petitioning the court of supervision, presentation to the court and other legal requirements, but may be available to further protect your “record” from prying eyes.
A Petition for Non-Disclosure may be filed upon the dismissal/discharge in most Misdemeanor cases; except Misdemeanors involving: Kidnapping; Unlawful Restraint; Sexual Offences; Assaultive Offenses; Offenses Against the Family; Disorderly Conduct & Related Offenses; & Weapons Violations, in which case one must wait five (5) years after dismissal/discharge to file a petition; and, ten (10) years following discharge/dismissal in all qualified Felonies. There are other limitations such as: 1) anyone who has been convicted or placed on Deferred Adjudication for any offense (except Transportation Code violations punishable by fine only during the applicable time periods above do not qualify; anyone ever convicted or placed on Deferred Adjudication for: 2) any offense requiring Sex Offender Registration; 3) Aggravated Kidnapping; 4) Murder; 5) Capital Murder; 6) Injury to Child, Elderly or Disabled; 7) Abandoning or Endangering Child; 8) Violation of Magistrates Protective Order; 9) Stalking; 10) Any offense Involving “Family Violence” (Sec. 71.004 FAM Code definition).
Other limitations may also arise, as the Texas Legislature continues to tinker with this statute and will probably continue to do so. If you are interested in exploring the possibility or are worried about a record of arrest, charge or conviction, please contact us to discuss your particular situation and/or needs.