In the state of Texas, an individual with a criminal record can file for expunction, or expungement, of their criminal record, with the Texas Department of Public Safety (DPS). Rules to expunge a misdemeanor or felony can be found in the Texas Code of Criminal Procedure Chapter 55.
An individual can petition to expunge their own record without the help of an attorney. The Crime Records Service's (CRS) legal staff of DPS cannot help an individual with expunction because DPS may oppose their expunction petition.
Check Eligibility for Texas Expungement
An individual who seeks expungement should first obtain a copy of their criminal history maintained by DPS. They should then talk to a licensed attorney to determine their eligibility for expunction. Records that are not eligible include those of a person:
- Convicted of any offense other than a Class C misdemeanor.
- Placed on community supervision (supervised probation) for an offense other than a Class C misdemeanor.
- Arrested if the arrest relates to a probation violation warrant.
- Who absconds (leaves without permission) the jurisdiction after being released on bond.
A person who has been pardoned or acquitted on appeal for an offense other than a Class C misdemeanor may be eligible for expunction. Examples of Class C misdemeanors in Texas include reckless driving, public intoxication and trespassing on public property.
No Expunction of DWI Offenses
A charge of Driving While Intoxicated (DWI) is a Class B misdemeanor, for a first offense; a Class A misdemeanor for a second offense; and a third-degree felony for a third offense. This offense is usually not eligible for expunction.
Offenses Eligible for Expunction
If a person resolved their case with pretrial diversion, such as the combination of a fine and community, they may be eligible for expunction. Other records eligible for expunction include:
- Arrest for a crime that was never charged.
- Criminal charge that was ultimately dismissed.
- Certain qualifying misdemeanor juvenile offenses.
- Conviction of a minor for certain alcohol offenses.
- Conviction for failure to attend school.
- Arrest that is not charged if a case is not filed and there is no felony offense arising out of the same transaction for which the person was arrested.
- Arrest of a person never formally charged, regardless of whether the statute of limitations (time for the state to file criminal charges) has expired, if the prosecuting attorney’s office certifies that the records and files are not needed for use in any criminal investigation or prosecution of another person.
- Arrest, charge or conviction on a person’s record due to identity theft by another individual who was actually arrested, charged or convicted of the crime.
- Conviction for an offense of which the person was later acquitted on appeal.
- Conviction for a crime that was later pardoned by the governor of Texas or a U.S. president.
The above list of records eligible for expunction is not exhaustive. Not all people with records that are eligible for expunction will qualify. A person cannot file a petition for expunction of a felony that has been dismissed if the statute of limitations for the crime has not yet expired. The statute of limitations for most felonies in Texas is three years.
Charges Must Not Be Pending
If the person was released by the court, one of the charges or arrests that they want to expunge is no longer pending (awaiting decision or settlement), and the person must have seen the final conviction of the entire case fully overturned. They must have no other offense or charge pending relating to the matter.
This situation occurs when a person has a case that involves multiple charges, such as one count of attempted murder and one count of criminal conspiracy. The final conviction pertains to the overall case, not the single charge within the case that the person wants to expunge. The person is not eligible for expunction if the court ordered community supervision in the sentence.
Situations Affecting Eligibility for Expunction
A person may not be eligible for an expunction if they have been convicted of a felony in the five years preceding the date of arrest for the crime for which they seek an expunction.
A court may not order expunction for an offense for which a person is later acquitted if the offense of which they were acquitted arose out of a criminal episode, meaning an event of the commission of two or more offenses, and the person was convicted of, or remains subject to, prosecution for at least one other offense occurring during the criminal episode.
How to File for Expunction of Criminal Records
The person seeking an expunction, the petitioner, needs to file a petition for expunction with the clerk of the proper court to request that the court grant an order for expunction. The proper court is the municipal, county or district court, depending on the level of the offense.
If the state charged the individual with an offense, the individual must likely will file the petition in the same court that was assigned to the case. The exception is if the court that was assigned to the case declines not to hear the petition for expunction or the court finds a significant reason to switch venue.
Attending the Court Hearing
After the person files their petition, the court schedules a hearing. It sends notice of the hearing to all applicable – law enforcement agencies involved in the person’s arrest and facilities of incarceration, like the local sheriff’s office.
These parties are called respondents. At the hearing, the respondents may contest, or challenge, the request for expunction. If the petitioner meets all of the necessary requirements for expunction, the court will grant the request.
Information Needed for Expunction
Court clerks do not typically provide blank forms to prepare an expunction. An individual can request a petition from the district attorney in their county via email. This is true in Harris County, home to the city of Houston.
The petition must contain:
- Statute under which the petition is brought, such as Article 55.01 of the Texas Code of Criminal Procedure.
- Name of petitioner.
- County in which the charge, conviction or arrest occurred.
- Petitioner’s date of birth.
- Petitioner’s race.
- Petitioner’s sex.
- Petitioner’s address at time of arrest.
- Petitioner’s current address.
- Petitioner’s driver’s license number.
- Petitioner’s Social Security number.
- Date of petitioner’s offenses.
- Date of petitioner’s arrest.
- Name of the court and the county or city in which the petitioner was charged for these offenses.
- Cause Number/s (case numbers) relating to this charge.
- Number of the district court, municipal court or county court in which the case was charged.
- Law number of court.
- County in which court sits.
- If arrest was never charged and was dismissed, date on which it was dismissed.
- If the conviction was pardoned or acquitted, date on which that occurred.
- If the final conviction was fully overturned, date on which that occurred.
The petitioner must provide the name and full address of all law enforcement agencies, jails, detention facilities, magistrates, courts, prosecuting agencies, correctional facilities and any state or federal agencies, courts or organizations that may have records or information relating to the arrest, charge or conviction.
Notarization of Petition
The petition must be signed by the petitioner and notarized by a notary public. It should include a blank notice of hearing document, which allows the court to set a hearing date on the issue. The petition should also contain a final order of expunction.
Cost to File for Expunction
The cost of filing for expunction can be found in the Texas Code of Criminal Procedure Section 2.102.006. The cost is the same as the fee to file an ex parte petition in a civil action in the county in which the court sits, plus the fees for service to relevant agencies. The petitioner should check the district court’s fee schedule to determine the fee for service in their county.
In Harris County, the base filing fee for an expunction is $350. The cost of the fees for service of the expunction petition and the final expunction order, if the latter is granted, depend on the number of agencies listed in the petition. The amount of the service fee varies by county and type of service.
In Harris County, electronic service, meaning service via an electronic means like email, costs $3 per agency. The fee for non-electronic service, meaning service via a paper copy, is $14 per agency.
Waiver of Filing Fees
Fees will be waived if the petitioner seeks expunction of a criminal record that relates to an arrest for an offense of which the person was acquitted. The petition for expunction must not be filed later than the 10th day after the date of the acquittal.
The exception to this rule is that the fees may not be waived if the expunction relates to an arrest for an offense for which a person was later acquitted, the offense arose out of a criminal episode, and the person was convicted of, or remains subject to, prosecution for at least one other offense occurring the criminal episode.
If the petitioner has a good reason why they should not pay the fees for expunction, such as insufficient income, they can ask the judge to waive the fees. The petitioner should file a statement of inability to afford payment of court costs or an appeal bond. The judge may choose to waive some or all of the fees or convert them into community service hours.
Length of Waiting Period
It usually takes a minimum of three months for an expunction order to become final. Depending on the volume of requests a court receives, it can take longer.
Payment of Attorney Fees
If the person hires an attorney to assist with the expunction, they will also need to pay the cost of private attorney’s fees for the legal services. There is no right to receive public assistance of an attorney to aid with an expunction.
Sealing Juvenile Records
Texas Family Code Section 58.253 governs the sealing of juvenile records. This process is different from expunction. It is called “automatic sealing,” and it eliminates the requirement to file an application or petition to seal records.
The juvenile court is mandated to seal records if the juvenile meets the statutory criteria. DPS notifies the juvenile probation department when a juvenile record maintained by DPS may be eligible for automatic sealing.
Orders of Nondisclosure
Texas Government Code Section 411.071 allows an individual who successfully completes deferred adjudication community supervision (supervised probation under a pretrial diversion program) to petition the court for an order of nondisclosure.
The person must petition the same court that placed the person on probation. An order of nondisclosure prevents criminal justice agencies from disclosing the offender's criminal record to members of the public.
The agencies can, however, release criminal history record information to criminal justice agencies, such as a sheriff’s office and authorized noncriminal justice agencies. They may also release the criminal history record information to the person who is the subject of the criminal record and who requested an order of nondisclosure.
Criminal history record information subject to an order of nondisclosure is excepted from required disclosure under Texas’s Public Information Act. The CRS legal staff of DPS cannot assist a person to petition the court for an order of nondisclosure. The person should seek assistance from a private attorney if they want help with this procedure.
- Texas Department of Public Safety: Criminal History Records
- Texas Code of Criminal Procedure: Title 1 Code of Criminal Procedure, Chapter 55, Expunction of Criminal Records
- Texas Department of Public Safety, Crime Records Division: Procedure for Review of Personal Criminal History Record Information (Form CR-63)
- Texas Code of Criminal Procedure: Title 2 Code of Criminal Procedure, Chapter 102 Costs, Fees and Fines Paid by Defendants
- Texas Family Code: Title 3, Juvenile Justice Court, Chapter 58 Records, Juvenile Justice System
- Harris County District Clerk: Filing a Pro Se Expunction
- Texas Government Code: Title 4 Executive Branch, Chapter 411 Department of Public Safety of the State of Texas,
- Texas Code of Criminal Procedure: Title 1, Code of criminal procedure, Chapter 12, Limitation
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.