Monday, September 22, 2008

Expunging Misdemeanor Arrest Records

Potential clients often call asking whether their particular case is expungable. My first question is whether the person was arrested for a felony or a misdemeanor offense? If arrested for a misdemeanor, my next question is always "how was your case ultimately resolved?" Was the case dismissed? Were you found guilty and placed on probation? Did you received deferred adjudication? Were you found not guilty after a trial? Have you been pardoned?

Regarding misdemeanor charges, the Texas Code of Criminal Procedure, art. 55.01 provides that a person who's been arrested (custodial or non-custodial) for the commission of a misdemeanor is entitled to have their records and files relating to the arrest expunged if several potential conditions exist:
(1) The person was tried for the offense and was acquitted;
(2) The person was convicted and subsequently pardoned; or
(3) An indictment or information charging the person with the commission of a felony had not been presented against the person, the statute of limitations period (usually 2 years) expired before the date on which the expunction was filed, the person had been released, the charge had not resulted in a final conviction, the charge was no longer pending, there was no court ordered probation for any offense (other than a Class C misdemeanor), and the person had not been convicted of a felony in the five years preceding the date of the arrest.
Under this statute, if a misdemeanor charge resulted in a dismissal the arrest records could be expunged. Dismissal could result if the trial court granted a motion to suppress evidence and the case was dismissed. If a motion for directed verdict was granted the arrest is subject to an expunction. Any termination of a misdemeanor prosecution that did not result in a conviction or probation (including deferred adjudication) can be expunged. In other words, no probation, regardless of the type or whether it was successfully completed, is expungable.

Next week we'll look at felony arrest records . . . much more difficult to expunge! If you have a misdemeanor arrest that might be expungable, call a Brazos County criminal defense lawyer to explore your options.

40 comments:

Anonymous said...

Is Probation ordered by the court as part of the deferred ajudication terms not considered "probation" for expungement purposes? Or does it count as court Probation in the formal sense and thus not allow for expungement under 55.01?

Stephen Gustitis said...

A completed deferred on any offense (other than a class c misdemeanor) cannot be expunged under Article 55.01 of the Texas Code of Criminal Procedure.

Anonymous said...

Hi Stephen

Thank you for your informative article. I am a solo criminal defense attorney in California. I have a client who was convicted of 31.03E)(2)(AI) on 11/16/2001 in Houston. Looks like what we call a petty Theft out here. am I correct that she first has to apply for and receive a pardon before she can apply for expungement?
Thanks again
Stan Evans

Stephen Gustitis said...

Stan: Give me a call to discuss this. 979-823-9111

Steve

William said...

I was charged with a Driving while license invalid a bail jumping and failure to appear in aransas county tx. They charged it as a class B misdemeanor for dwli and a class A misdemeanor for the bail jumping and failure to appear. i plead guilty to the charges and am making $150 a month payments until January, is there anyway i can reduce these to a class C? Im trying to join the military and they wont take me with these charges. thanks William

Stephen Gustitis said...

William: Based on your description of events, it looks like you are locked into convictions on these charges. The time for a possible reduction has past. Sorry I could not be more helpful.

JMFD said...

Several years ago I was charged with criminal mischief. The prosecutor sent the complaint to an old address, so I never showed up to court and was then charged with failure to appear.

Once I became aware of and handled these issues, the crim. mischief was dismissed straight up (no deferred), but apparently I was convicted on the FTA. So my question is, if I get an expunction of the crim mischief, shouldn't the record of the FTA also be wiped? The way I see it, the FTA charge would not have existed absent the crim mischief charge, and if you don't wipe the FTA charge then there's still evidence that the crim mischief charge happened.

Thoughts?

Stephen Gustitis said...

JMFD:
If you were convicted of the FTA (bail jumping) you cannot get that expunged. You might be able to expunge the original arrest for criminal mischief if you meet certain eligibility requirements.

Anonymous said...

I was charged with possession of paraphernalia(class c misdemeanor?) a few years ago. I was given the opportunity to do community service for deferred adjudication. However I was an idiot and did not do any of it. The judge would not give me and extra time to complete when I had to appear in front of him.

Is it possible for this to be expunged? Other than a few traffic violations and one public intoxication I have no other convictions. Thank you.

Stephen Gustitis said...

Unless you successfully completed the class C deferred adjudication, you are NOT eligible for an expungement of those records.

Anonymous said...

Hello Mr. Gustitis,
I found this on Wikipedia:
Texas

Texas expungement law[27] allows expungement of arrests which did not lead to a finding of guilt, and class C misdemeanors if the defendant received deferred adjudication, and completed community supervision.[28] The release, dissemination or use of expunged records by any agency is prohibited. Unless being questioned under oath, the defendant may deny the occurrence of the arrest and expungement order. If the defendant was found guilty, pled guilty, or pled no contest to any offense other than a class "C" misdemeanor, it is not eligible for expungement; however, it may be eligible for non-disclosure if deferred adjudication was granted. However, if the person who has had a record expunged is applying for enlistment into the Armed Services, the charge must be revealed or the person shall be disqualified from enlistment and may be liable for criminal action for fraudulent enlistment if the charge is not revealed.

If I received/completed deferred adjudication for a Class A Family Violence Assault charge in Brazos County, is it eligible for non-disclosure? If so, how would I go about seeking it?

Stephen Gustitis said...

The Texas Legislature has specifically provided that a person is not entitled to petition the court for an order of non-disclosure if the person has been convicted or has been placed on deferred adjudication, including the current offense for which they seek non-disclosure, for any offense involving family violence, as defined by Sec. 71.004 of the Texas Family Code. See the Texas Government Code Sec. 411.081(e)(4).

Selina said...

I received a misdemeanor Class B conviction back in 2007. I've been trying to set aside my conviction since I got off probation, but no dice. In 2011, Judge Bryan awarded two individuals their conviction set aside. How can I get this done for me?

http://www.kbtx.com/news/headlines/126359053.html

Stephen Gustitis said...

Selina:
Can you please be more specific regarding the "set asides" that Judge Bryan granted? What were the names of the defendants? I'd like to look-up the cases and see what actually occurred.

Anonymous said...

I am on deffered prosecutuon for. For clasd b misdeamonors. Will i be able to get,them expunged upon completion

Anonymous said...

I was placed on deffered prosecution and was completely innocent of charges. But was scared and wantef to get process over with. Can i revokemy plea and go to trial

Anonymous said...

Stephan,

My wife was accused of misdemeanor theft of less than $50. Rather than spend $2500. for legal fees, she decided to just pay the fine $500. She had no previous record...not even a traffic ticket. Is it possible to get her record cleared as it is causing her problems with employment background checks. She was not guilty of the charge, but had to face the music anyway.
Thanks, Greg

Anonymous said...

i have a class a misdemeanor for theft taper with multi channel device
I will be done with deferred adjudication on the 19th of july will i be able to apply for a order of non disclosure or expungment

Stephen Gustitis said...

The general rule is yes, you can apply. I'd speak with a criminal defense lawyer in the county where this occurred and discuss the details. There are still a couple hoops to jump through. Good luck.

Anonymous said...

Hello Stephen,

I received a Class A DWI charge in 1992 and completed deferred adjudication. I am now in the process of seeking new employment after company downsizing/lay off and am finding companies are inquiring about pleading guilty to DWI charges. Can this charge now be expunged or sealed?

Thanks,
James

Stephen Gustitis said...

James: Deferred adjudication was not possible for DWI in 1992. Consequently, I don't know enough about your case to accurately answer your question.

Toye Oyelami said...

Can a class a misdemeanor for theft be expunged once I have successfully completed differed adjudication?

Stephen Gustitis said...

Toye: No. In Texas, the successful completion of deferred adjudication for a Class A misdemeanor may make one eligible for an Order for Non-Disclosure, which seals the records. Note there may be limitations on this right, depending upon the specific case. Thanks for your question.

Toye Oyelami said...

Thanks. It was a theft case. And if I do successfully get it sealed, what kind of employers would be able to access it?

Stephen Gustitis said...

The non-disclosure order simply prohibits the government from releasing the record into the public domain. Anyone with access to the government databases will be able to see it.

Selina said...

Following up on the setting aside conviction in Brazos with Judge Bryan. Here is the link to the article http://www.kbtx.com/news/headlines/126359053.html

Anonymous said...

Too bad your not in DFW, I just had a trial today where the judge wouldn't allow hardly any evidence in my defense, but let an officer who couldn't remember anything about the case stand.

Freaking biased courts, nothing like a fine and law helping pay their salaries to show how horrible our system is.

Anonymous said...

I got charged with theft under $50 I don't wanna fight it I just wanna pay for what I did and get it over with.is there anyway I can get the charge taken off my record or at least hidden from employers?

Stephen Gustitis said...

DO NOT pay this theft fine! Hire a lawyer to help you. This is critical as there may be things the lawyer can do to avoid conviction and possibly get these records expunged. Thanks for your question.

Anonymous said...

I have a Class C Misdemeanor for Petty Theft. I was arrested and posted bond 2 hours later for $350. When I was leaving I was asked to fill out a form where I would plead guilty/not guilty/ or no context. Since they had video footage and evidence the officer told me my best option was to be honest. So I plead guilty. This was my first and only offense. I made a mistake and I was not at a good place when this incident occurred. Now I need to find a job but I'm afraid no will hire me. I did not go to court and was not sentenced any probabation. The store itself gave me a warning since it was my first offense and they got their items back but had to press charges based on their policies. I need serious help. I need this to go away so I can have a fresh start in life. And move on from this mistake. What can I do?

Anonymous said...

IS THIS TRUE?
If the defendant was found guilty, pled guilty, or pled no contest to any offense OTHER than a class "C" misdemeanor, it is not eligible for expungement;

Stephen Gustitis said...

A finding of guilt (conviction) is different from pleading guilty or no contest. Here's the bottom line: If you were found guilty (convicted) of any Texas criminal offense, then you are not eligible for any expungement. There is one (1) exception under the Texas Alcoholic Beverage Code.

Anonymous said...

As of two days ago I was suspended from my job and asked to turn in my keys by loss prevention bases on a video showing me pack up an item in my car while on the clock I intended to pay for it, but forgot, as I was locking up for the day. As of today I am in limbo!! I refused to fill out a statement or sign any thing, since I was feeling extremely pressured and bullied by him to do so. He called in an officer and filed a report. The officer explained to us both that i would not be placed under arrest as it was a class c misdemeanor and the item had a value of around $20. They also refused to take back the item. I was asked to turn in my key and not return or contact the store. I was given a case# and badge# by the officer and told to follow up. HELP! Should I be looking into legal council or an attorney. I really have no idea where to turn. I have never been in any kind of trouble before

Anonymous said...

As of two days ago I was suspended from my job and asked to turn in my keys by loss prevention bases on a video showing me pack up an item in my car while on the clock I intended to pay for it, but forgot, as I was locking up for the day. As of today I am in limbo!! I refused to fill out a statement or sign any thing, since I was feeling extremely pressured and bullied by him to do so. He called in an officer and filed a report. The officer explained to us both that i would not be placed under arrest as it was a class c misdemeanor and the item had a value of around $20. They also refused to take back the item. I was asked to turn in my key and not return or contact the store. I was given a case# and badge# by the officer and told to follow up. HELP! Should I be looking into legal council or an attorney. I really have no idea where to turn. I have never been in any kind of trouble before

Novi Vita said...

In 2012 I was pulled over for speeding, and arrested for having a butterfly knife in my vehicle and charged with a class A misdemeanor for prohibited weapon and plead guilty. In September 2013 butterfly knives became legal in Texas. Can this charge be removed from my record?

Stephen Gustitis said...

Novi: You are not eligible for an expungement. Check the website for the Texas Board of Pardons and Parole and investigate your eligibility for a pardon. Good luck.

Anonymous said...

I received a citation via registered mail for a Class C misdemeanor assault by contact. I looked it up on the JP court's website and it says the fine is $440.00.

I'm worried about employer background checks. If I just pay this, will it show up in a background check? I'm in my 50's with no criminal record.

Thanks for your help,
MLE

Stephen Gustitis said...

Dear MLE: Please contact my office to arrange a free consultation to discuss your case. Thanks.

Anonymous said...

Can a class A misdemeanor conviction levied in Grayson County Texas resulting in a state jail sentence plus community service and probation be expunged or at least be set aside? It is the only criminal offense on my record. I was let off of probation early.

Anonymous said...

I have a charge of drug paraphernalia and I saw that it tested positive but the cop threw it on the ground and didn't keep it, can I fight this?