Can I Have My Criminal Record Expunged or Restricted?

Many criminal defendants are eligible for a pure second chance.

Yes, and yes. Especially considering it is a dark red state, Texas has broad expungement and sealing laws. Expungement is a magic eraser. It eliminates all law enforcement, judicial, and other records of a crime. People cannot find these records if they try because the records no longer physically exist. Restriction, or sealing, moves the files to the trash can. Any casually curious person would see the law enforcement records but not the judicial records and probably assume the case was dropped for lack of evidence.

Most criminal offenders in Texas are first-time offenders, which means most are eligible for expungement or sealing. However, these procedures are usually complex. So, although most offenders are eligible for relief, this eligibility means nothing unless a Fort Worth criminal defense lawyer assertively stands up for their rights in court. Before they stand up for your rights in court, attorneys must ensure they have good footing. So, expungement or sealing is a process, not a result.

Expungement

Usually, expungement focuses on the arrest and charging process. This relief is available if the defendant was wrongfully charged with a case. So, one of the following must apply:

• No charging instrument (information or indictment) was filed,
• Prosecutors dismissed the case,
• A court declared the defendant not guilty,
• The conviction was overturned on appeal, or
• The governor or President pardoned the defendant.

Additionally, defendants are only eligible for expungement if prosecutors did not file any criminal charges related to that incident (e.g., the state filed drug possession charges instead of drug trafficking charges) and the defendant has a clean criminal record. Moreover, the statute of limitations must have expired. An additional waiting period may apply in some cases.

Most people file expungement petitions based on pretrial dismissals, so let’s examine them more closely. Generally, prosecutors must dismiss the case for a substantive reason, such as a lack of evidence. However, if the defendant successfully completes pretrial diversion, expungement may be available.

Sealing

In contrast, record sealing basically rewards defendants who toe the line during probation or parole. The following sealing requirements apply in most cases, with the notable exception of veterans who complete a Section 411.0729 program.

First, the offense must not be a prohibited offense, such as murder, human trafficking, or most sex crimes. Additionally, the deal’s off if the defendant has ever been convicted of such an offense or been placed on deferred adjudication probation for such an offense.

Second, you are not eligible for a nondisclosure order if the court finds that the offense you want to seal involved family violence, as defined by Section 71.004, Family Code. So, during an assault or other case, a Fort Worth criminal defense lawyer must lay the groundwork for sealing and convincing prosecutors to remove the “domestic violence” label.

Third, many types of nondisclosure orders include a waiting period, which ranges from 180 days to five years. You are not eligible for a nondisclosure order if you were convicted or placed on deferred adjudication for another crime (other than a fine-only traffic ticket) while you were on probation, on deferred adjudication, or during the waiting period.

Reach Out to a Diligent Tarrant County Attorney

Post-conviction relief often includes expungement or sealing. For a confidential consultation with an experienced criminal defense lawyer in Ft. Worth, contact the Law Office of Kyle Whitaker. Virtual, after-hours, home, and jail visits are available.