In today’s fast-paced, Internet world, harmful information can spread around quickly and can be very difficult to protect. One of the quickest ways to harm your chances for future employment or advancement can be the uncontrolled release of an arrest record. It is imperative that any information about a prior criminal arrest be removed from official records.
The Texas Code of Criminal Procedure (TCCP), Chapter 55: Expunction of Criminal Records controls whether you are allowed to clean your arrest record. You will find the statutory language that allows and explains the “erasing” of a particular record of arrest. There is no mechanism for cleaning up a criminal conviction other than a pardon or an “actual innocence” sort of situation. Those two types of actions are few and far between and will not be discussed here.
The following is a brief summary of the factors surrounding a criminal expunction. It is not inclusive of all the information an attorney must know about your specific situation to determine whether you can successfully press forward.
An expunction petition is an actual lawsuit and must be filed with the district clerk’s office. It is always recommended that you hire an experienced attorney to walk your expunction petition through the process. Even an experienced attorney must take special care to see that all the procedures have been followed in order for the expunction order to be performed properly.
TCCP, Section 55.01 details the “Right to Expunction”: A person who has been arrested for a criminal offense is eligible to have his or her arrest record removed under certain circumstances and if so ordered by a district court judge. I make it a habit to advise everyone who is eligible to have an arrest record expunged to do so as soon as legally possible.
Smart people take advantage of legal mechanisms that work to their benefit before the next sitting legislature takes it away. Nothing hurts so much as a lawyer telling you that you would have been successful in a “must succeed” mission had you only acted sooner.
Basically, to qualify for an expunction of an arrest record, you must (1) be tried for the offense and be acquitted by a judge or jury, or be convicted, but subsequently pardoned. Or (2) each of the following conditions exist: You were never indicted, or your indictment was dismissed; the statute of limitations has run, and the court finds you either completed a pretrial diversion program, the indictment was a mistake or lacked probable cause; or finally, there has been no conviction or probation ordered for greater than a class C misdemeanor.
Additionally, the person cannot be convicted of a (or another) felony in the five years preceding the arrest that the person is seeking to expunge.
That information can be a bit confusing. Most importantly, you cannot have a conviction or have been on probation for the crime you were arrested for, and the time period must have passed to file the lawsuit. It is very frustrating for citizens to be falsely arrested and not charged due to the time period they have to wait for an expunction. If you are arrested for a felony crime, it is a lengthy period of time to wait for an expunction if you are never taken to trial.
My biggest concern is the law on expunctions will change, and persons who are now eligible for the process will miss out on the opportunity. The expunction procedure is subject to being removed or restricted every time the legislature meets.
The statute of limitations for crimes committed in Texas is covered under the TCCP Chapter 12 limitation. This chapter details the time periods by which criminal charges must be filed or the charges cannot stand a legal challenge. Felony crimes have no limitation (murder, manslaughter and certain sexual crimes); a 10-year statute (some thefts, some sexual crimes and arson); a seven-year limitation (many thefts and deception crimes); a five-year statute (theft and robbery); and the remaining have a three-year limitation.
All misdemeanors and traffic tickets have a two-year limitation. I was involved in a misdemeanor DWI case that was filed more than three years after the arrest. The appellate courts have extended the statute of limitations by excluding some of the time from the period through a legal maneuver that bordered on confusion.
There is a procedure that allows for the “non-disclosure” of certain criminal charges and is available to keep a criminal case unavailable to all but members of law enforcement.
If you have been placed on a deferred adjudication probation, you can still prevent the information from being an open public record. Contact the law office of Jamie Balaga for more information about clearing up the mistakes from your past.
The law office of Jamie Balagia (also known as the DWI Dude), P.C., is dedicated to the defense of people accused of alcohol and drug related offenses with a concentration on helping those charged with driving while intoxicated. If you are looking for an exceptionally trained and educated DWI trial attorney to aggressively represent you on your DWI case or any criminal matter, call 210- 394-3833 in San Antonio or 512-278-0935 in Austin or contact jamie@dwidude.com.
