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Expungement and Sealing in Texas: Some Nuts and Bolts

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for AdobeStock_116715709 (1).jpegContrary to popular myth, criminal convictions do not fall off one's record after seven or ten years. Employment and other background checks may only go back that far, but the records are still there. Expungement and sealing are the only ways to erase conviction records, or at least limit access.

If the court expunges the records, they are physically destroyed or deleted, or they are given to the defendant. If the court seals the records, members of the general public, including potential employers and landlords, cannot view them. On such applications, defendants with sealed records may legally say they have never been convicted of a crime. Law enforcement, certain state agencies, and a few other entities may still view these records. Furthermore, they may be admissible in court in some situations.

Juvenile Record Expungements

There is also a persistent myth that the court automatically seals or expunges juvenile records once the defendant turns eighteen or twenty-one. That's usually not true.

Generally, expungement eligibility is limited to misdemeanors committed by persons 17 or younger, some MIP (Minor In Possession of alcohol) offenses, and convictions for failure to attend school. These expungements are subject to the same conditions and rules as adult expungements, which are set out below.

Typically, juvenile defendants can only apply for expungement after they become adults, after a waiting period expires, and if they have an otherwise clean criminal record.

Adult Record Expungements

These criminal convictions are expungeable if the charges were favorably resolved in the judicial process. Favorable resolutions are:

  • A not guilty finding at trial,

  • Pretrial dismissal due to lack of probable cause, such as a lack of admissible evidence,

  • No charges brought,

  • Arrest, charge, or conviction due to identity theft,

  • Reversal on appeal at the Court of Criminal Appeals, and

  • Executive pardon.

A favorable resolution is not enough. Additionally, the judge must conclude that expungement is in the best interests of the defendant and society. There are a few other disqualifiers as well, such as convictions which were part of a criminal episode, persons with additional criminal convictions on their records, or certain types of offenses.

Generally, Weatherford criminal defense attorneys first seek the prosecutor's agreement. Judges almost always approve agreed expungement petitions, assuming the defendant meets the minimum qualifications.

Record Sealing

If the defendant is ineligible for expungement, the defendant may be eligible for a non disclosure order. The list of ineligible offenses is shorter and the qualifications are easier. In fact, even defendants who pleaded guilty and received probation may be eligible for non disclosure.

There are some basic requirements. For example, the waiting period could be up to ten years. During this time, the defendant cannot apply for a non disclosure order and cannot be convicted of another offense.

In general, if the probation officer agrees to the nondisclosure petition, the prosecutor usually does not oppose the proceeding.

Post-conviction relief, such as expungement or sealing, may make life easier for former criminal defendants. For a free consultation with an experienced criminal defense attorney in Weatherford, contact Herreth Law. We routinely handle matters in Parker County and nearby jurisdictions.

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