April 10, 2014
by David Nachtigall
An expunction of criminal records permits you, with some exceptions, to legally “lie” about whether you were ever arrested for or charged with a crime. With limited exceptions, the records are destroyed and inaccessible even to law enforcement. I’ve come across people who were charged and pled guilty to a crime under the false impression that would be able to have the charge removed at some point in the future. The reality is that expunctions apply only in narrow circumstances, and the law is somewhat complicated. Here’s a summary:
The most common situations in which expunction is an option:
- You were charged with a crime, the case was dismissed by the State, and the statute of limitations for prosecution has expired. The statute of limitations is period in which the State must charge you with crime after the alleged crime occurred. The statute of limitations for misdemeanors is two years. For felonies, it ranges from three years to never (some crimes have no statute of limitations).
- You were acquitted by a judge or jury. This means you went to trial and were found not guilty. You are entitled to an immediate expunction.
- You were charged with a crime and the case was dismissed for lack of probable cause. You are entitled to an immediate expunction.
- You were charged with a crime and the case was dismissed because you completed a pretrial intervention or pretrial diversion program. You are entitled to an immediate expunction.
- You have completed a deferred disposition for a Class C misdemeanor (Class C misdemeanors are non-jailable offenses like traffic violations and minor in possession of alcohol).
Less Common:
- You have been arrested for a Class A or B misdemeanor only but NOT charged with a crime (rarely happens in Harris County, but happens in surrounding counties). You may seek an expunction a year after the arrest, but you must show that there is no investigation pending.
- You have been arrested for a felony but NOT charged with a crime (rarely happens in Harris County, but happens in surrounding counties). You may seek an expunction three years after the arrest, but you must show that there is no investigation pending.
Rare:
- You were found guilty at trial but later acquitted by court of appeals.
- You were determined to be actually innocent by an appellate court.
- You were pardoned by the Governor of Texas.
- The prosecutor recommends an expunction before trial.
- Someone who was arrested falsely gave your information at the time they were arrested, and the arrest and charge are incorrectly on your record.
