Expungement 101: Clearing Your Criminal Record
Most defendants are eligible for record expungement or sealing.
When it comes to cleaning your criminal record, Texas has a rather complex two-tier system. Under the newly expanded rules, almost everyone is eligible for expunction or sealing.
Expunction is the complete destruction of all arrest, prosecution, conviction, probation, and other records related to the offense. Expunction is almost like a magic wand that erases the matter altogether. Sealing is like painting over the records. They still exist, and some people, like some government agencies, can see through the paint. But for most purposes, they are invisible.
Usually, this relief is available, but judges can almost always say yes or no, depending on the facts and circumstances. A Fort Worth criminal defense lawyer advocates for you, increasing the chances of a favorable response.
Expungement
In Texas, record expungement is similar to wrongful arrest or malicious prosecution, at least for the most part. Defendants may file expunction petitions if:
- The defendant was acquitted at trial (significantly, there’s a difference between acquittal or a finding of not guilty, and innocence),
- No formal criminal charges were ever filed and the statute of limitations has expired,
- A grand jury refused to indict the defendant,
- The defendant was arrested but never tried, and the prosecutor approved the petition,
- The underlying offense was a juvenile misdemeanor, or
- The governor pardoned the defendant.
Falling-through-the-cracks expungements and executive pardon expungements are probably the two most common ones.
On TV and in the movies, police and prosecutors are always on the same team. In real life, these two organizations unite because they have a common enemy, not because they like each other. Communication between these two agencies is often poor. Frequently, prosecutors insist they do not have enough evidence to bring charges. For whatever reason, law enforcement investigators do not follow up, and the case falls through the cracks.
Despite what many people think, an executive pardon is a viable option in many cases, especially if the defendant has served his/her sentence in full. As a rule of thumb, the governor considers about one in ten pardon petitions and grants about one in ten of those requests.
Formal Record Sealing
First-time misdemeanors committed after August 31, 2017, are eligible for record sealing, as outlined above. Sometimes, a Fort Worth criminal defense lawyer must jumpstart the process. However, for the most part, automatic sealing is, well, automatic.
However, do not get too excited. The prosecutor must have dismissed the case and the judge must have discharged it. Prosecutorial discretion dismissals usually do not count. These dismissals include dismissals as part of a plea bargain, weak evidence dismissals, and I-don’t-want-to-mess-with-this-case dismissals.
Discretionary sealing is available unless the defendant committed a prohibited offense (mostly extremely violent felonies and sex offenses). Judges usually grant these petitions if the defendant proves sealing is in the best interests of society and the probation department does not oppose it.
Informal Record Sealing
Deferred disposition bypasses this process. If defendants successfully complete this special form of probation, the judge dismisses the case when probation ends.
We should mention that deferred disposition is a high-risk, high-reward option. The high reward is that, even if the defendant has been in trouble before, deferred adjudication keeps a conviction off the defendant’s permanent record. The high risk is that, if the defendant violates probation, the judge could sentence the defendant to anything, up to and including the maximum under the law.
Count on a Savvy Tarrant County Criminal Defense Attorney
Criminal convictions don’t always last forever. For a free consultation with an experienced criminal defense attorney in Fort Worth, contact the Law Office of Kyle Whittaker. Convenient payment plans are available.