San Antonio Criminal Defense Attorneys
A person who has been arrested for the commission of a felony or misdemeanor is entitled to have all the records and files relating to the arrest expunged if the person is tried for the offense for which he or she was arrested and is acquitted by the trial court or convicted and subsequently pardoned [C.C.P. Art.55.01(a)].
Simply getting a dismissal of your Felony case after indictment does not entitle you to an expunction unless the court finds that the indictment or information was dismissed or quashed because the person completed a pretrial intervention program or 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 [C.C.P Art. 55.01]. Dismissal or rejection of a felony charge before indictment would increase your chances of an expunction, depending upon the crime charged, it’s investigation status and the applicable statute of limitations.
Expunction is required if the person is tried for and convicted of the offense for which he or she was arrested and is subsequently pardoned [C.C.P. Art. 55.01(a)].
A person who has been arrested for the commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if the person was tried and acquitted by the trial court or convicted and subsequently pardoned [55.01 (a) C.C.P.].
(1) an indictment or information 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 either the limitations period expired before the date on which a petition for expunction was filed or 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 to believe the person committed the offense or because it was void;
(2) the person has been released from custody;
(3) the charge, if any, has not resulted in a final conviction and is no longer pending;
(4) there was no court ordered community supervision under Article 42.12 of the Code of Criminal Procedure
(5) the person has not been convicted of a felony in the five years preceding the date of the arrest.
The first requirement listed above means that if a felony indictment or information has been dismissed, the dismissal must have been based on the fact that the charging instrument was presented because of mistake, false information, or similar reason.
The statute of limitations requirement to apply all offenses, felonies and misdemeanors. State v. Beam, 226 S.W.3d 392, 394 (Tex. 2007).
What Does an Expunction Mean?
- The release, maintenance, dissemination, or use of the expunged records and files for any purpose is prohibited.
- The petitioner may deny the occurrence of the arrest and the existence of the expunction order.
- The petitioner or any other person, when questioned under oath in a criminal proceeding about an arrest for which the records have been expunged, may state only that the matter in question has been expunged. While the statute is silent on how this provision affects the petitioner’s right to deny the arrest and expunction, it appears to limit this right in criminal proceedings as stated.
Any person violating an expunction order, commits a Class B misdemeanor.
Although not as strong as an expunction, a non-disclosure is the next best thing. One receiving a non-disclosure order may deny the occurrence of the arrest, unless asked at a subsequent criminal proceeding. Unlike an expunction, certain agencies are allowed to maintain the arrest records and documentation – primarily law enforcement, education and public licensing agencies
In addition, a person may petition a court for an order of nondisclosure five years after the discharge and dismissal of felony offenses, when applicable. There is no waiting period for misdemeanors, provided they are subject to expunction [Tex. Crim. Pro. Code 55.03]. For misdemeanor offenses that are not enumerated in the statute, an order of nondisclosure may be sought immediately after dismissal of the offense for which deferred adjudication previously was granted [Tex. Crim. Pro. Code 55.03]. No nondisclosure order is available no matter how much time has passed even if deferred adjudication was granted and successfully completed for the offenses of murder, family violence, stalking, injury to a child, child endangerment, or protective order violations [Tex. Crim. Pro. Code 55.03].
If nondisclosure has been granted, information concerning the prior offense and the deferred adjudication that has been set aside are excepted from the requirements of the Public Information Act [Tex. Gov't. Code 552.021]. A person who is the subject of information that is exempt from the requirements of the Public Information Act may deny the occurrence of the arrest and prosecution unless the information is used against the person in a subsequent criminal proceeding. Private entities that compile and disseminate criminal history record information for compensation may not divulge information for which an order of nondisclosure has been issued.
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