By Collin County Criminal Defense Lawyer Jeremy Rosenthal
A criminal arrest record can be like the legal equivalent of cancer. It can cost you a job, a promotion at work, or countless other opportunities. The damage is done when someone hears about the arrest. Most aren’t interested in details that you were acquitted or the charges were dropped.
An expunction is the legal equivalent of curing the cancer that is a criminal arrest. A state district judge orders the records stemming from a criminal arrest destroyed. This includes records which were part of the arrest or that reference the arrest such as court records, the district attorney’s file, and even transcripts of the trial. When people refer to having something “taken off” their record, an expunction is generally what they mean. This also means that the state’s agencies can’t give information about your these arrests to private companies who gather criminal data for distribution for private background checks. Tex.C.Crim.P. § 55.03(2) even allows for a person with an expunction to “deny the occurrence of the arrest…” in certain circumstances. The code has specific details you should be aware of for that provision.
What is unknown by most is qualifying for an expunction can be somewhat difficult. Though expunctions can be highly complex in certain circumstances where (where multiple allegations stem from the same arrest for example) – most are cut and dry. If prosecution against you has been barred as a general rule, you are probably entitled to an expunction. Prosecution can be barred where you are acquitted by a judge or jury, where the statute of limitations has expired and the case hasn’t been filed, or if prosecution has been barred for some other reason.
It is a common misconception that getting deferred adjudication ‘magically’ drops the criminal arrest record on it’s own for any offense. Deferred only entitles you to an expunction for (most) class “C” misdemeanors in Texas. These are the lowest level of offense, which include traffic tickets and petty offenses ranging from minor in possession, possession of drug paraphernalia, and theft below $50 in value as examples. Even though you weren’t taken to jail on a class “C” doesn’t mean there isn’t a record either! An Expunction may still be necessary.
Deferred adjudication for offenses from class “B” misdemeanors and above may entitle you to apply for a petition for non-disclosure which generally limits who can know about your criminal case but is different from an expunction.
An expunction doesn’t happen on it’s own. A state district judge must approve your petition for expunction. This is a very technical process and is commonly handled by lawyers.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. This article is not intended to be specific legal advice. Please consult an attorney for questions regarding this subject matter.