What’s the Difference?
This is the third and final article in a series dealing with the types of probation, the aftereffects, and the sealing of records. The first article demonstrated the differences between straight probation and deferred adjudication. In the second article, I outlined what the consequences were for messing up on probation as opposed to deferred. This final article deals with wiping the slate clean and sealing criminal records – how to clear your criminal record.
A frequent question that arises often in criminal law is how someone might go about getting their record sealed. Now, “sealing” records gets thrown around a lot as broad term which can make your record clean again. This is true in a sense, but there are more variables than just that.
Expunction v. Non-Disclosure
First off, let’s get the wording correct. In Texas, there are two different ways to “seal” your record. The first, and most important, is an expunction. This is not just a manner of sealing your records – it makes them go away for good. In other words, all records of your arrest, charge, etc., are destroyed and shall never again see the light of day. The second way to seal your record is literally just that, the sealing of your record. In Texas, this is known as a non-disclosure.
So, the next question, then, is when are you eligible for an expunction and when are you eligible for a non-disclosure?
The right to an expunction on a charge that did not go to trial has many facets. The first being that there was no final conviction and the case is no longer pending before any court. Furthermore, there can be no court-ordered probation or deferred adjudication stemming from your charge. Basically, the case was dismissed prior to an information or indictment being filed.
In this instance, there are certain time requirements in order to file for an expunction. On a Class C Misdemeanor 180 days must pass before charge. On a Class A or B Misdemeanor there needs to be at least one year since the charge. In the case of a felony, at least three years must pass since the charge. Finally, there is the situation in which the prosecutor might certify that the records are no longer needed.
The second option for an expunction arises when an indictment or information has been presented, but was subsequently dismissed or quashed because a diversion program was completed, the indictment or information lacked probable cause, or was void. If an information or indictment was presented, and this option is unavailable, then the prosecutor may recommend to the district court that an expunction be granted.
Finally, the last option is if the statute of limitations period has passed and no indictment or information was ever filed.
An expunction can also be available even if the case resulted in an indictment or information and ended with a trial. The first option, obviously, being that of an acquittal. In that instance, there is no formal waiting period. Even if convicted at the trial court, an expunction can be granted if the case is appealed and reversed resulting in an acquittal being handed down by the appellate court.
There is also the right to an expunction in the exceptional case where a pardon is granted. This occurs very seldom. It is a white buffalo. Not impossible. But almost. Although, it is beginning to happen more frequently due to the rise of DNA testing.
There are also instances in which an expunction is absolutely not available. The most frequent of which occurs when an indictment or information is presented and the resulting case ends in probation or a deferred. In that instance, only a non-disclosure is available, and even then only for the deferred. Also, there is no right to an expunction if an arrest warrant is issued due to a probation revocation, a person absconding, or if there are are still pending charges arising out of a criminal episode.
As explained above, an expunction destroys all records related to the charge. In other words, there is no evidence left of any arrest or charge. Which means, that if your questioned under oath you may state simply that the matter that has been expunged.
A non-disclosure, or “sealing” of your criminal record is the next best option available. However, unlike with an expunction, simply sealing your record does not destroy it. Instead, the record is sealed from all private entities and databases while public, government agencies can still access and view your record. This means whether you want to be a doctor or a barber your record can still be accessed by the relevant licensing board.
So, then, what makes you eligible for a non-disclosure? First off, you cannot have taken a conviction. That means no straight probation or convicted jail time – i.e. only a deferred or a dismissal makes you eligible. Secondly, whereas an expunction is all about the statute of limitations period, a non-disclosure is all about the date of dismissal.
For most misdemeanor deferred crimes a non-disclosure can be filed on or after dismissal. That means the day of, or any day after, the court has dismissed the case. For a handful of other misdemeanors, your more “serious” misdemeanor offenses that is, two years has to pass since the dismissal before you may file for a non-disclosure. Finally, for all felony offenses a total of five years has to first pass before a non-disclosure may be filed.
However, you still may not be eligible for a non-disclosure just because you took a deferred and the dismissal time requirement has run. Just like with an expunction, there are certain instances in which a non-disclosure is unavailable. Though unlike an expunction, these deal more with the type of crime than anything related to the case itself. For instance, murder, aggravated kidnapping, sex offender registration issues, and most common, family violence crimes cannot be sealed.
Call Our Expunction & Non-Disclosure Attorneys Today!
In the end, the method for making your record disappear has more to do with the type of crime and the outcome of the case. Get it dismissed before indictment or information and an expunction can be yours. Afterwards, however, a non-disclosure can be your only route.
If you think you might be eligible for an expunction or a non-disclosure, or would like to see if you’re eligible, contact us online or give us a call at 817-928-4222, and we can help you determine whether you’re eligible.