Expungement of Criminal Records – General – Texas
1. What is an expungement?
Upon the petition of a criminal defendant, a court can direct certain law enforcement agencies to destroy all records associated with an arrest and subsequent prosecution. Many times the court will specifically direct law enforcement agencies to destroy jail records, police reports, prosecution reports and court files. In addition, a successful expungement petitioner, can legally deny ever having been arrested for or charged with the criminal offense for which he is receiving the expunction
2. Do the records just disappear?
No. Except in cases where identifying information is expunged due to false identity information provided without consent, the court may return records to the petitioner. When return isn’t practical, records are to be obliterated or deleted. Records may be retained by a law enforcement agency or prosecutor if necessary for use in another case. Tex. Code Crim. Proc. Art. 55.02.
3. Who is eligible to get records expunged?
Records relating to a complaint dismissed under deferred adjudication under Art. 45.051 CODE CRIM. P. may be expunged under Article 55.01.
§ 161.255 HEALTH & SAFETY. Expungement of Conviction
(a) An individual convicted of an offense under Section 161.252 may
apply to the court to have the conviction expunged. If the court finds
that the individual satisfactorily completed the tobacco awareness
program or tobacco-related community service ordered by the court, the
court shall order the conviction and any complaint, verdict, sentence, or
other document relating to the offense to be expunged from the
individual’s record and the conviction may not be shown or made known for
any purpose.
Records relating to a complaint dismissed under Art. 45.053 CODE CRIM. P. for misdemeanor charges for chemical dependency may be expunged under Article 55.01
Under Tex. Code Crim. Proc. Art. 55.01, (a) A person who has been placed under a custodial or noncustodial
arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:
(1) the person is tried for the offense for which the person was
arrested and is:
(A) acquitted by the trial court, except as provided by Subsection (c)
of this section; or
(B) convicted and subsequently pardoned; or
(2) each of the following conditions exist:
(A) an indictment or information charging the person with commission of
a felony has not been presented against the person for an offense arising
out of the transaction for which the person was arrested or, if an
indictment or information charging the person with commission of a felony
was presented, the indictment or information has been dismissed or
quashed, and:
(i) the limitations period expired before the date on which a petition
for expunction was filed under Article 55.02; or
(ii) the court finds that the indictment or information was dismissed
or quashed because the presentment had been made because of mistake,
false information, or other similar reason indicating absence of probable
cause at the time of the dismissal to believe the person committed the
offense or because it was void;
(B) the person has been released and the charge, if any, has not
resulted in a final conviction and is no longer pending and there was no
court ordered community supervision under Article 42.12 for any offense
other than a Class C misdemeanor; and
(C) the person has not been convicted of a felony in the five years
preceding the date of the arrest.
(a-1) Notwithstanding Subsection (a)(2)(C), a person’s conviction of a
felony in the five years preceding the date of the arrest does not affect
the person’s entitlement to expunction for purposes of an ex parte
petition filed on behalf of the person by the director of the Department
of Public Safety under Section 2(e), Article 55.02.
(b) Except as provided by Subsection (c) of this section, a district
court may expunge all records and files relating to the arrest of a
person who has been arrested for commission of a felony or misdemeanor
under the procedure established under Article 55.02 of this code if the
person is:
(1) tried for the offense for which the person was arrested;
(2) convicted of the offense; and
(3) acquitted by the court of criminal appeals.
(c) A court may not order the expunction of records and files relating
to an arrest for an offense for which a person is subsequently
acquitted, whether by the trial court or the court of criminal appeals,
if the offense for which the person was acquitted arose out of a criminal
episode, as defined by Section 3.01, Penal Code, and the person was
convicted of or remains subject to prosecution for at least one other
offense occurring during the criminal episode.
(d) A person is entitled to have any information that identifies the
person, including the person’s name, address, date of birth, driver’s
license number, and social security number, contained in records and
files relating to the arrest of another person expunged if:
(1) the information identifying the person asserting the entitlement to
expunction was falsely given by the person arrested as the arrested
person’s identifying information without the consent of the person
asserting the entitlement; and
(2) the only reason for the information identifying the person
asserting the entitlement being contained in the arrest records and files
of the person arrested is that the information was falsely given by the
person arrested as the arrested person’s identifying information.
(a) A person who has been placed under a custodial or noncustodial
arrest for commission of either a felony or misdemeanor is entitled to
have all records and files relating to the arrest expunged if:
(1) the person is tried for the offense for which the person was
arrested and is:
(A) acquitted by the trial court, except as provided by Subsection (c)
of this section; or
(B) convicted and subsequently pardoned; or
(2) each of the following conditions exist:
(A) an indictment or information charging the person with commission of
a felony has not been presented against the person for an offense arising
out of the transaction for which the person was arrested or, if an
indictment or information charging the person with commission of a felony
was presented, the indictment or information has been dismissed or
quashed, and:
(i) the limitations period expired before the date on which a petition
for expunction was filed under Article 55.02; or
(ii) the court finds that the indictment or information was dismissed
or quashed because the presentment had been made because of mistake,
false information, or other similar reason indicating absence of probable
cause at the time of the dismissal to believe the person committed the
offense or because it was void;
(B) the person has been released and the charge, if any, has not
resulted in a final conviction and is no longer pending and there was no
court ordered community supervision under Article 42.12 for any offense
other than a Class C misdemeanor; and
(C) the person has not been convicted of a felony in the five years
preceding the date of the arrest.
(a-1) Notwithstanding Subsection (a)(2)(C), a person’s conviction of a
felony in the five years preceding the date of the arrest does not affect
the person’s entitlement to expunction for purposes of an ex parte
petition filed on behalf of the person by the director of the Department
of Public Safety under Section 2(e), Article 55.02.
(b) Except as provided by Subsection (c) of this section, a district
court may expunge all records and files relating to the arrest of a
person who has been arrested for commission of a felony or misdemeanor
under the procedure established under Article 55.02 of this code if the
person is:
(1) tried for the offense for which the person was arrested;
(2) convicted of the offense; and
(3) acquitted by the court of criminal appeals.
(c) A court may not order the expunction of records and files relating
to an arrest for an offense for which a person is subsequently
acquitted, whether by the trial court or the court of criminal appeals,
if the offense for which the person was acquitted arose out of a criminal
episode, as defined by Section 3.01, Penal Code, and the person was
convicted of or remains subject to prosecution for at least one other
offense occurring during the criminal episode.
(d) A person is entitled to have any information that identifies the
person, including the person’s name, address, date of birth, driver’s
license number, and social security number, contained in records and
files relating to the arrest of another person expunged if:
(1) the information identifying the person asserting the entitlement to
expunction was falsely given by the person arrested as the arrested
person’s identifying information without the consent of the person
asserting the entitlement; and
(2) the only reason for the information identifying the person
asserting the entitlement being contained in the arrest records and files
of the person arrested is that the information was falsely given by the
person arrested as the arrested person’s identifying information.
As permitted by Tex. Code Crim. Proc. Art. 45.051, a juvenile who has completed a deferred sentence may seek expungement under § 55.01.
Under Tex. Code Crim. Proc. Art. 45.053. involving the dismissal of a misdemeanor charge on commitment of a chemically dependent person, records relating to a complaint dismissed under this article may be expunged under Article 55.01.
If the court finds that the person was not convicted of any other offense described by Section 8.07(a)(4) or (5), Penal Code, while the person was a child, the court shall order the conviction, together with all complaints, verdicts, sentences, and prosecutorial and law enforcement records, and any other documents relating to the offense, expunged when turn 17. Tex. Code Crim. Proc. Art. 45.0216.
Also, under Texas Alcohol and Beverage Code § 106.12, a first-offender of underage drinking violation may have records expunged. Must not have any other violations under the Alcohol and Beverage Code while a minor to be eligible and submit a sworn statement to that effect to the court.
4. What records may be expunged?
Tex. Code Crim. Proc. Art. 55.02 allows a person to seek expungement of all files and records related to their arrest. Under Tex. Code Crim. Proc. Art. 55.02, after an order to expunge is granted, the trial court shall require any state agency that sent information concerning the arrest to a central federal depository to request such depository to return all records and files subject to the order of expunction.
5. How do I get records expunged?
At the request of the defendant and after notice to the state,
the trial court presiding over the case in which the defendant was
acquitted, if the trial court is a district court, or a district court in
the county in which the trial court is located shall enter an order of
expunction for a person entitled to expunction under
article 55.01(a)(1)(a) not later than the 30th day after the date of the
acquittal. Upon acquittal, the trial court shall advise the defendant of
the right to expunction. The defendant shall provide to the district
court all of the information required in a petition for expunction under
Section 2(b). The attorney for the defendant in the case in which the
defendant was acquitted, if the defendant was represented by counsel, or
the attorney for the state, if the defendant was not represented by
counsel, shall prepare the order for the court’s signature.
Sec. 2. (a) A person who is entitled to expunction of records and files
under Article 55.01(a) or a person who is eligible for expunction of
records and files under Article 55.01(b) may file an ex parte petition
for expunction in a district court for the county in which:
(1) the petitioner was arrested; or
(2) the offense was alleged to have occurred.
(b) The petition must be verified and shall include the following or
an explanation for why one or more of the following is not included:
(1) the petitioner’s:
(A) full name;
(B) sex;
(C) race;
(D) date of birth;
(E) driver’s license number;
(F) social security number; and
(G) address at the time of the arrest;
(2) the offense charged against the petitioner;
(3) the date the offense charged against the petitioner was alleged to
have been committed;
(4) the date the petitioner was arrested;
(5) the name of the county where the petitioner was arrested and if
the arrest occurred in a municipality, the name of the municipality;
(6) the name of the agency that arrested the petitioner;
(7) the case number and court of offense; and
(8) a list of all:
(A) law enforcement agencies, jails or other detention facilities,
magistrates, courts, prosecuting attorneys, correctional facilities,
central state depositories of criminal records, and other officials or
agencies or other entities of this state or of any political
subdivision of this state;
(B) central federal depositories of criminal records that the
petitioner has reason to believe have records or files that are subject to
expunction; and
(C) private entities that compile and disseminate for compensation
criminal history record information that the petitioner has reason to
believe have information related to records or files that are subject
to expunction.
(c) The court shall set a hearing on the matter no sooner than thirty
days from the filing of the petition and shall give to each official or
agency or other governmental entity named in the petition reasonable
notice of the hearing by:
(1) certified mail, return receipt requested; or
(2) secure electronic mail, electronic transmission, or facsimile
transmission.
(c-1) An entity described by Subsection (c) may be represented by the
attorney responsible for providing the entity with legal representation
in other matters.
(d) If the court finds that the petitioner, or a person for whom an ex
parte petition is filed under Subsection (e), is entitled to expunction of
any records and files that are the subject of the petition, it shall
enter an order directing expunction.
(e) The director of the Department of Public Safety or the director’s
authorized representative may file on behalf of a person described by
Subsection (a) of this section or by Section 2a an ex parte petition
for expunction in a district court for the county in which:
(1) the person was arrested; or
(2) the offense was alleged to have occurred.
(f) An ex parte petition filed under Subsection (e) must be verified
and must include the following or an explanation for why one or more
of the following is not included:
(1) the person’s:
(A) full name;
(B) sex;
(C) race;
(D) date of birth;
(E) driver’s license number;
(F) social security number; and
(G) address at the time of the arrest;
(2) the offense charged against the person;
(3) the date the offense charged against the person was alleged to
have been committed;
(4) the date the person was arrested;
(5) the name of the county where the person was arrested and if the
arrest occurred in a municipality, the name of the municipality;
(6) the name of the agency that arrested the person;
(7) the case number and court of offense; and
(8) a list of all:
(A) law enforcement agencies, jails or other detention facilities,
magistrates, courts, prosecuting attorneys, correctional facilities,
central state depositories of criminal records, and other officials or
agencies or other entities of this state or of any political
subdivision of this state;
(B) central federal depositories of criminal records that the person
has reason to believe have records or files that are subject to
expunction; and
(C) private entities that compile and disseminate for compensation
criminal history record information that the person has reason to
believe have information relating to records or files that are subject
to expunction.
Sec. 2a. (a) A person who is entitled to expunction of information
contained in records and files under Article 55.01(d) may file an
application for expunction with the attorney representing the state in
the prosecution of felonies in the county in which the person resides.
(b) The application must be verified, include authenticated fingerprint
records of the applicant, and include the following or an explanation for
why one or more of the following is not included:
(1) the applicant’s full name, sex, race, date of birth, driver’s
license number, social security number, and address at the time the
person who falsely identified himself or herself as the applicant was
arrested;
(2) the following information regarding the arrest:
(A) the date of arrest;
(B) the offense charged against the person arrested;
(C) the name of the county or municipality in which the arrest
occurred; and
(D) the name of the arresting agency; and
(3) a statement that:
(A) the applicant is not the person arrested and for whom the arrest
records and files were created; and
(B) the applicant did not give the person arrested consent to falsely
identify himself or herself as the applicant.
(c) After verifying the allegations in an application received under
Subsection (a), the attorney representing the state shall:
(1) include on the application information regarding the arrest that
was requested of the applicant but was unknown by the applicant;
(2) forward a copy of the application to the district court for the
county;
(3) attach to the copy a list of all:
(A) law enforcement agencies, jails or other detention facilities,
magistrates, courts, prosecuting attorneys, correctional facilities,
central state depositories of criminal records, and other officials or
agencies or other entities of this state or of any political
subdivision of this state;
(B) central federal depositories of criminal records that are
reasonably likely to have records or files containing information that is
subject to expunction; and
(C) private entities that compile and disseminate for compensation
criminal history record information that are reasonably likely to have
records or files containing information that is subject to expunction;
and
(4) request the court to enter an order directing expunction based on
an entitlement to expunction under Article 55.01(d).
(d) On receipt of a request under Subsection (c), the court shall,
without holding a hearing on the matter, enter a final order directing
expunction.
Sec. 3. (a) In an order of expunction issued under this article, the
court shall require any state agency that sent information concerning
the arrest to a central federal depository to request the depository
to return all records and files subject to the order of expunction.
The person who is the subject of the expunction order or an agency
protesting the expunction may appeal the court’s decision in the same
manner as in other civil cases.
(b) The order of expunction entered by the court shall have attached
and incorporate by reference a copy of the judgment of acquittal and
shall include:
(1) the following information on the person who is the subject of the
expunction order:
(A) full name;
(B) sex;
(C) race;
(D) date of birth;
(E) driver’s license number; and
(F) social security number;
(2) the offense charged against the person who is the subject of the
expunction order;
(3) the date the person who is the subject of the expunction order was
arrested;
(4) the case number and court of offense; and
(5) the tracking incident number (TRN) assigned to the individual
incident of arrest under Article 60.07(b)(1) by the Department of
Public Safety.
For expungement of juvenile records:
Art. 45.0216 CODE CRIM. P. Expunction of Certain Conviction Records of
Children
(a) In this article, “child” has the meaning assigned by
Section 51.02, Family Code.
(b) A person convicted of not more than one offense described by
Section 8.07(a)(4) or (5), Penal Code, while the person was a child may,
on or after the person’s 17th birthday, apply to the court in which the
child was convicted to have the conviction expunged as provided by this
article.
(c) The person must make a written request to have the records
expunged. The request must be under oath.
(d) The request must contain the person’s statement that the person was
not convicted while the person was a child of any offense described by
Section 8.07(a)(4) or (5), Penal Code, other than the offense the person
seeks to have expunged.
(e) The judge shall inform the person and any parent in open court of
the person’s expunction rights and provide them with a copy of this
article.
(f) If the court finds that the person was not convicted of any other
offense described by Section 8.07(a)(4) or (5), Penal Code, while the
person was a child, the court shall order the conviction, together with
all complaints, verdicts, sentences, and prosecutorial and law
enforcement records, and any other documents relating to the offense,
expunged from the person’s record. After entry of the order, the person
is released from all disabilities resulting from the conviction and the
conviction may not be shown or made known for any purpose.
(g) This article does not apply to any offense otherwise covered by:
(1) Chapter 106, Alcoholic Beverage Code;
(2) Chapter 161, Health and Safety Code; or
(3) Section 25.094, Education Code.
(h) Records of a person under 17 years of age relating to a complaint
dismissed as provided by Article 45.051 or 45.052 may be expunged under
this article.
(i) The justice or municipal court shall require a person who requests
expungement under this article to pay a fee in the amount of $30 to
defray the cost of notifying state agencies of orders of expungement
under this article.
(j) The procedures for expunction provided under this article are
separate and distinct from the expunction procedures under Chapter 55.
