(The reason for this post is that nondisclosure and expunction are simple enough that lawyers, at least, should get the facts right, and they don’t. I do not seek more clients who want to clear their criminal records, so I will probably regret posting this—lookie-loos and wannabe clients will ignore this disclaimer and call me with their record-clearing questions. If you call me with such questions, please have a credit card handy.)
There are four tools for clearing a person’s record in Texas:
- Expunction, which removes records of the arrest from all governmental agencies’ records;
- Nondisclosure, which removes records of the case from public view;
- Habeas corpus, which if successful (rare) reopens the case and gives D a chance to fight it right; and
- Pardon (exceedingly rare).
Expunction is available only for charges of which a person was acquitted or which were dismissed without any class-B or class-A misdemeanor or felony probation.
If he pled guilty or no contest to a class-B or -A misdemeanor or a felony, he can’t get his record expunged no matter how long ago it happened. If D paid a fine on a class-C misdemeanor, he can’t get his record expunged.
Expunction is available immediately if he was acquitted. Expunction is available after the statute of limitations has run if the case was dismissed.
The Texas expunction statute refers to expunction of records of an arrest. If he was charged with more than one offense in an arrest, and if some of the charges, standing alone, would be expungeable and others would not, whether the nonexpungeable results bar expunction of the others is an interesting question.
If D pled guilty or no contest to a class C misdemeanor and took a “special expense” or a “class C deferred adjudication,” which is not a true deferred adjudication but a “suspension of sentence and deferral of final disposition” under Article 45.051 of the Texas Code of Criminal Procedure, expunction is available after the statute of limitations—for most misdemeanors, two years from the date of the offense—has expired.
An expunction is a new lawsuit filed in civil district court and served on all of the governmental agencies that are likely to have records. If the legal requirements for expunction are met and the proper procedure is followed, the civil judge has no discretion to deny expunction. In Harris County, the process takes a couple of months from filing the petition to getting the order signed.
A petition for nondisclosure allows a judge to order records of a successfully completed deferred adjudication probation from public view.
Most class A and B misdemeanor deferred adjudication probations are ripe for nondisclosure as soon as the probation is completed.
Nondisclosure is not available for:
- an offense requiring registration as a sex offender under Chapter 62;
- an offense under Section 20.04 of the Texas Penal Code (aggravated kidnapping);
- an offense under Section 19.02 (murder), 19.03 (capital murder), 22.04 (injury to a child, elderly individual, or disabled individual), 22.041 (abandoning or endangering a child), 25.07 (violation of a protective order), or 42.072 (stalking) of the Texas Penal Code; or
- any other offense involving family violence.
Outside of those offenses, nondisclosure is generally available for a misdemeanor deferred adjudication immediately upon completion of the probation. There is a two-year wait for nondisclosure after completing deferred adjudication probation for a misdemeanor offense under these Texas Penal Code chapters:
- 20 (kidnapping and unlawful restraint);
- 21 (sexual offenses);
- 22 (assaultive offenses);
- 25 (offenses against the family);
- 42 (disorderly conduct and related offenses); and
- 46 (weapons offenses).
There is a five-year wait for nondisclosure after completing deferred adjudication probation for a felony.
A person is not eligible for nondisclosure if, during the period of probation or the waiting period, he is convicted of or receives another deferred adjudication for anything greater than a traffic ticket.
A petition for nondisclosure is filed in the court that gave the deferred adjudication probation. Even if the case qualifies for nondisclosure and the proper procedure was followed the judge can deny nondisclosure if she is not convinced that it is “in the best interest of justice.” From filing to order, in Harris County the procedure takes two weeks.
The person who has a conviction or a deferred adjudication probation that is not amenable to expunction or nondisclosure might look into seeking habeas corpus relief. Habeas relief is not handed out like candy, though, and at a bare minimum there must have been some infirmity in the trial or plea that rendered it unconstitutional. Ineffective assistance of counsel is probably the most common ground for habeas relief, followed by involuntariness of a plea.
While nondisclosure can be sought by an intelligent layperson (the forms, including an order that I wrote, are available on the Harris County DA’s website) and expunction by a general-practice lawyer, habeas corpus is a highly specialized field. The determination of whether trial or plea counsel was ineffective, or whether a guilty plea was involuntary, or whether there are some other grounds for relief, requires factual investigation and legal research; the defendant who wants to seek habeas relief should plan to spend more on habeas counsel than he spent on the lawyer who led him into his guilty plea. Competent habeas counsel will charge a fee to investigate the possibility of filing the writ, and another fee for filing the writ based on the favorable results of the investigation.
Most of the time, though, the results of the habeas investigation are not favorable. Most counsel meet the minimal standards of effectiveness required by the law, and most pleas are informed and voluntary. Which brings us to the last possibility for clearing a person’s criminal record in Texas:
I know very little about the Texas pardon process, except that it’s an even more specialized field than habeas, and that pardons are very rarely given. If nondisclosure, expunction, and habeas corpus are not options, the defendant who is willing and able to spend a great deal of money to seek a pardon should call Bill Habern.