Even though a misdemeanor is a lesser offense than a felony, it doesn't assist a person in any way to have one on their record. Most states allow residents to have misdemeanors removed from their criminal records if they meet certain criteria.
Anyone with a criminal history living in Texas will do well to get an overview of the state's laws about removing misdemeanor or felony charges from their record or sealing that criminal record from public view.
The Texas Fresh Start App helps individuals to determine whether they qualify. It is often a good idea to consult a criminal defense attorney from a reputable law firm at the time criminal charges are filed.
Expunction in Texas
In Texas, the process of clearing a person's criminal record is called “expunction.” But it isn't available to those convicted of a misdemeanor or any crime. Rather, under the Texas Code of Criminal Procedure, expunction is available only to those charged with a crime, but never convicted.
Not everyone realizes that even if an individual charged with a crime is found innocent by a judge or jury, or if the charge is dismissed, the fact of the criminal arrest remains on their criminal record. It can come to light when the individual tries to get a job, rent an apartment or needs to get a background check. A criminal search will reveal the arrest.
Requirements for Expunction
The good news is that, under Texas law, both misdemeanors and felonies can be removed from an arrest record if the person qualifies for expunction. They qualify if they were arrested or charged with a crime but were:
- Arrested, but never formally charged.
- Charged, but acquitted (found not guilty) of the crime.
- Charged and convicted, but later found innocent by the same court or on appeal.
- Charged and convicted, but officially pardoned by the governor of Texas.
- Charged with the crime, but the case was dismissed.
- Charged with the crime, but the statute of limitations expired before indictment.
Waiting Period for Expunction Application
For those arrested on a criminal matter but never formally charged, Texas law imposes a waiting period. Individuals can seek an expunction only after waiting a set period of time after the date of arrest. This period depends on the specifics of the crime:
- Class C misdemeanor arrests: must wait 180 days before filing.
- Class B misdemeanor arrests: must wait 365 days before filing.
- Class A misdemeanor arrests: must wait 365 days before filing.
- Felony arrests: must wait three years before filing.
What about those who were charged but acquitted; convicted but later declared innocent; pardoned; or had their case dismissed? The state of Texas does not impose a waiting period to file for expunction in these circumstances.
How to File for Expunction
Obtain an application for expunction online or from the courthouse. It is critical to obtain a copy of the criminal record to be sure that all of the required information is available.
Once the application is complete, file it in the district court in the county in which the arrest occurred. File a fingerprint card from the Texas Department of Public Safety along with the application.
What happens after filing the application? The county clerk notifies the Texas Department of Public Safety of the filing. At that point, the clerk will set a court hearing to occur 30 days or more from the date of filing.
Eligibility for Expunction
Anyone reading the expunction laws soon learns that wiping out a criminal record is not possible for everyone. An individual who pleaded guilty or entered a "no contest" plea to a criminal charge is not eligible.
Likewise, anyone who took the matter to trial and was found guilty is not eligible, unless that ruling was overturned or the individual was pardoned. Generally, those convicts cannot have their record cleared in Texas short of a gubernatorial pardon or an overturn on review or appeal.
Order of Nondisclosure in Texas
In some cases, individuals in these circumstances can have their public records sealed (removed from review by members of the general public) if an order of nondisclosure is granted.
This court order of nondisclosure is authorized under Texas Government Code section 411.0725. Note that while this protects the individual from nosy neighbors, potential landlords and potential employers, law enforcement and criminal justice agencies will continue to have access to the record.
Qualifying for Order of Nondisclosure
As with expunction, Texas imposes limitations and restrictions on who can apply for an order of nondisclosure to hide their criminal record from the public. But these limitations are different. Anyone who plead guilty or no contest to a criminal offense can apply if they successfully completed deferred adjudication community supervision.
Note that certain criminal offenses are not eligible for an order of disclosure. These include:
- Offense for which convict must register as a sex offender in Texas.
- Offense of aggravated kidnapping.
- Any human trafficking offense.
- Offense that included injury to a child, a disabled person or an elderly person.
- Offense of domestic violence or family violence.
The Texas Government Code imposes a five-year waiting period for felonies and a two-year waiting period for serious misdemeanors. There is no waiting period to apply if a misdemeanor conviction punishment consisted of only a fine with no jail time.
Automatic Nondisclosure in Texas
There are two methods of nondisclosure in Texas, one automatic, the other requires a petition. Automatic nondisclosure is available for those having a first-time misdemeanor conviction. It applies to first-time misdemeanors other than traffic fines, and offenses dismissed and discharged after August 31, 2017.
The trial court judge is required to order nondisclosure six months after the date on which the person was placed on deferred adjudication.
The individual should not have to file anything to obtain this automatic order of nondisclosure to seal their record, but it never hurts to remind the court to take this step. Use these instructions for filing under 411.072 to ask the court to do so.
Filing a Petition for Nondisclosure
No other offenses are eligible for an automatic nondisclosure order. Rather, the offender must file a petition, using the forms and instructions available from the courts. Filing fees are charged.
Note that they will not be eligible if they have been convicted of an additional crime during the waiting period. The judge deciding the case can determine that nondisclosure is not in the public interest and deny the petition.
- Criminal Defense Lawyer: Expunging or Sealing Adult Criminal Records in Texas
- TexasLegalHelp.org: Adult Criminal Records
- Texas Law Help.org: How to Ask for a Nondisclosure Order - Seal Your Criminal Record
- Justia: Texas Code of Criminal Procedure Chapter 55 Expunction of Criminal Records
- Justia: Texas Government Code Section 411.0725 Procedure for Deferred Adjudication Community Supervision; Felonies and Certain Misdemeanors
- Georgetown: Texas Fresh Start App
- Remember to sign your petition or motion.
- Serve a true copy on the state and provide a certificate of service to the court when you file the original.
- Even if you choose not to retain an attorney, your legal rights are at stake and you should seriously consider consulting one.
- The Texas Department of Public Safety may oppose a petition for expunction.
- The district attorney may oppose a motion to set aside a conviction.
Teo Spengler earned a JD from U.C. Berkeley Law School. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an MA and an MFA in English/writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.