Expunctions: A Powerful Weapon for a Fresh Start

What is an expunction under Texas law?

When an expunction is granted, the government must destroy any and all records related to your arrest and subsequent prosecution. Expunctions are like a powerful eraser – a tool that allows those wrongly arrested to deny the arrest ever occurred. 

Expunctions are controlled by Chapter 55 of the Texas Code of Criminal Procedure. Expunction law is quite complex – this introduction will cover the basics and some intermediate topics, but you should discuss the specifics of your case with a criminal defense attorney who can help you navigate the complex statutory requirements under Texas law. 

What’s the difference between Expunction and an Order for Nondisclosure? 

It is important to note that expunctions are different than Orders for Nondisclosure. Expunctions were intended to allow the wrongly arrested to clear their records, not as a general remedy for anyone with a criminal history. The two tools have a similar purpose – to clear someone’s record, but they’re very different devices under Texas law. Consult an attorney to find the right tool for your situation. 

What is the “arrest” threshold in the expunction statute?

The first threshold requirement for an expunction is an arrest, but an “arrest” for expunction purposes is not quite the same as the usual meaning of the term. When we think of an arrest, we think about handcuffs and a police car. However, the expunction statute authorizes expunction following either a custodial or “non- custodial arrest.” This is especially important in the context of Class “C” Misdemeanors where there is often not a traditional arrest. Texas courts have found that so long as you made some kind of appearance in court, you will have satisfied the arrest threshold requirement. 

Am I eligible for an expunction if I was found “not guilty” by a judge or jury? 

Section 55.01(a)(1) of the Texas Code of Criminal Procedure sets forth that any person tried for an offense and acquitted is eligible for an expunction. There is an important exception to this provision that comes up in the context of Driving While Intoxicated cases. If the government can show two or more convictions for the same or similar offenses, they can bar your expunction under 55.01(c). 

Am I eligible for an expunction if my case was dismissed or no-billed by a grand jury? 

Section 55.01(a)(2) creates potential eligibility for an expunction if a case was dismissed or no-billed. This can include cases that are indicted and subsequently dismissed, cases that are no-billed by the grand jury, cases refused by the prosecutor, or cases never filed by the law enforcement agency. 

To be eligible under this section, you must first meet three criteria. First, you must have been released from custody with your case no longer pending. Second, the case must not have resulted in a final conviction. Third, you cannot have served community supervision for any offense out of the arrest except for a Class C misdemeanor. Thus, a person who received deferred adjudication, despite not having a final conviction, is still not eligible for an expunction under this section. 

If you meet the above criteria, you must then show your case fits into one of three categories. First, you can show that the statute of limitations in your case has run. Second, you can show that the waiting period in your case has passed. Third, you can show that your case was dismissed for certain reasons outlined in 55.01(a)(2)(A) & (B). The second and third prongs in this paragraph are particularly esoteric and the third is often litigated in the courts. 

Are there any special expunction rules for firearm related cases?

In 2021, Texas lawmakers made several meaningful changes to firearm possession laws, and one major change is related to expunctions. Many types of weapon possession under the Unlawful Carrying a Weapon statute were made legal, and thus our lawmakers decreed under Texas Code of Criminal Procedure Section 55.01(a)(1)(C) that any convictions under Section 46.02(a) as the law existed prior to September 1, 2021, may be expunged. 

What is a “discretionary” expunction? 

The government may recommend an expunction under Section 55.01(b)(2). Specifically, the recommendation must be made “before the person is tried for the offense,” and the recommendation must come from “an office of the attorney representing the state authorized by law to prosecute the offense for which the person was arrested.” 

A defense attorney may be able to persuade the government that an expunction is in the interest of justice. Discretionary expunctions are not guaranteed under the statute – a judge has the final say, not the prosecutor. 

Am I eligible for expunction if someone stole my identity, or a clerical error led to erroneous paperwork against me?

Chapter 55 of the Texas Code of Criminal Procedure allows for “misuse of identity” expunctions in instances where someone falsely used your name when arrested, or in instances where a paperwork error results in erroneous charging documents. Law enforcement databases that store information are becoming more common, but one of the unfortunate side-effects of this is that it is easier than ever for false paperwork to be generated against a completely innocent person. A person could conceivably have a warrant issued for their arrest when they’re totally unrelated to a case, if they happen to share a name with the true suspect. Texas law allows for expunction in these cases.