Expunctions

Can I have my criminal record erased?

An expunction is a lawsuit asking a District Court to enter an order that all law enforcement agencies with any records of a person's arrest, (or criminal charges) erase, delete or destroy those records. It is intended to remove all records in the hands of law enforcement agencies concerning criminal charges. (Note: an expunction cannot reach records in the hands of private businesses, only government records.) Law enforcement agencies maintain records and databases containing these records. These records are created upon an arrest or when charges are formally filed against a person. The agencies that usually keep these records include the police agency, the sheriff's department, the court and court clerk's office, the prosecuting agency, the Texas Department of Public Safety, and the Federal Bureau of Investigations. Many of these records are available to the general public, and with computers and the Internet, have become easily accessible.

If you are eligible for an expunction, we strongly encourage you to obtain one. More and more, prospective employers are doing background checks. Apartment complexes are rejecting some tenant applications based on these records. Some records can effect professional licensing. Non citizens may face adverse immigration consequences. Additionally, with computer terminals now common in police vehicles, a traffic stop will likely reveal to the stopping officer any prior record. There is no guarantee that the laws on expunction will remain the same, and what may be expungeable now, may not be so in years ahead. The point is not to lose an opportunity.

State law defines who can and cannot get an expunction. For the most part you are either eligible or you are not. Most situations are clear. Your attorney can give you the best advice on whether you qualify based on your specific situation.

After we determine whether a client is eligible, we prepare a legal document, called a Petition that must be signed by the client. This document is then filed with the District Court, initiating the expunction lawsuit. Following the filing of the Petition, every governmental agency with any of the records is served with the lawsuit. A hearing is scheduled in the District Court.

The time factors are an important consideration if you are considering any delay in initiating the expunction process. If you have a personal life event, such as a job change, it may not be possible to get all of the records removed in time for a background check. (And when you apply for a job and that employer does a background check, the court cannot order that employer to destroy those records.) Accordingly, we recommend proceeding as soon as it is determined that you are eligible.

If an expunction is granted, the client is then legally permitted to deny that the arrest or charges every occurred on job applications, or for any other purpose. The only exception is that if the client were testifying under oath in a criminal matter, the client must respond that the matter has been expunged. An expunction order makes it a criminal offense for a law enforcement agency to disclose any record they have notice has been expunged.

An expunction is a desirable goal that can give an individual a clean slate. Ball & Hase has helped many clients through this process.

This fact sheet is designed to give general information to assist clients in understanding expunctions, and is not intended to substitute for advice in any specific case. Ball & Hase can advise you how the expunction laws apply to your situation.