What Is the Process for Getting an Expunction in Texas?
Did you know that even after an arrest where charges were later dropped, that the records surrounding the arrest and case can still follow the defendant around for the rest of their life? It is important to understand that just because a criminal charge was dropped or dismissed, records of the case and arrest will continue to be public and subject to discovery via a simple background check until an expunction has been secured.
Austin criminal defense lawyer Kevin Bennett represents people seeking an expunction in Travis County, including Austin, Lago Vista, Rollingwood and Lakeway.
First Step: Determining Expunction Eligibility of the Original Case
The first step in the expunction process is to evaluate whether a case is actually eligible for expunction. Was the case dismissed or were the charges dropped? Was the defendant acquitted of the charge at trial? If a person can answer yes to either of these questions, then they should contact a criminal lawyer who regularly handles expunctions. A good expunction lawyer will be able to screen the original case for other legal issues to make sure that all necessary pre-filing requirements have been met.
Filing an expunction petition prior to the expiration of the statute of limitations, filing a petition for expunction in the wrong court or filing for an expunction in a case in which deferred adjudication was received are just a few of the types of mistakes that might cause a petition for expunction to be denied. Again, contacting a criminal lawyer familiar with Texas expunction laws cannot be overstated.
Second Step: Acquiring Essential Information Needed for Expunction
Assuming that the original criminal case appears to be eligible for expunction, the second step in the expunction process is to gather the required information that identifies both the original case and the defendant. This can include information such as the original case's cause number, the original arrest date, the arresting agency, the defendant's social security number and birth date, etc. Austin expunction lawyer Kevin Bennett works closely with his clients to obtain all of the necessary information that must be included in an expunction petition under Texas law.
Third Step: Drafting and Filing of the Expunction Petition and Order
The third step of the expunction process is the drafting and filing of both the petition for expunction as well as the actual order of expunction itself. What many people do not realize is that an expunction is actually a brand new civil lawsuit that is a completely separate and distinct case from the original criminal case. Although separate and distinct from the underlying criminal case, the petition and the order will contain all of the identification information collected in the prior step, as well as a list of any and all agencies or entities that are believed to have records of the original arrest and/or case. It is these records that an order of expunction would order be destroyed, erased, deleted, etc. At a bare minimum, an order of expunction should list the arresting agency, the county jail or booking facility in which the accused was "booked" after arrest, the Texas Department of Public Safety and the original court in which the case was assigned.
An experienced expunction attorney will be aware that not all petitions for expunction are going to be filed under the same provisions of Texas law. Depending on the circumstances of each individual case, the petition may need to be filed under a very specific section of the expunction statute. Filing an expunction under the incorrect section of the law can cause the State or another entity such as the Texas Department of Public Safety, to file an objection to the petition for expunction or cause a Judge to deny the order altogether.
As you can see, the drafting and filing of the expunction petition can be very detailed and complex. However, in order to have a previously dismissed case removed from both public records as well as your own personal criminal record, it is necessary to obtain an expunction.
Fourth Step: The Expunction Hearing
Usually, either at the time of filing or shortly thereafter, the District Clerk's Office will notify the expunction attorney as to the future hearing date as well as the actual Court in which the expunction hearing will take place. By law, a hearing for expunction cannot take place until at least thirty (30) days have passed from the date of filing. However, in practice, it usually takes about thirty (30) to forty-five (45) days from the date of filing to have the actual hearing.
Depending on the status of the expunction case between the date of filing and the scheduled hearing date, it may be possible for the expunction lawyer to appear at the hearing on behalf of the client without the client/petitioner having to be present. At this hearing, the Court will hear legal argument and possibly evidence and/or testimony as to why a petition should or should not be granted. Texas has very strict criteria which must be met prior to an expunction being granted. If this criterion is not met, the expunction may be denied and you could possibly be barred from filing another expunction for the same case in the future.
Fifth Step: Dissemination of the Expunction Order and Destruction of Records
Assuming the order for expunction has been granted, the defendant or petitioner may now deny the arrest, the case and even the order of expunction itself. However, there is an exception: if questioned under oath in a criminal proceeding about an arrest for which the records have been expunged, the petitioner is permitted to state only that the matter in question has been expunged.
The chance of this situation actually arising would seem to be very slim.
In addition to being able to immediately deny the expunged arrest, the clerk of the court must send a copy of the order to all of the agencies listed in the order. Upon receipt of the expunction order, each agency named therein is required;
- To return all records and files that are subject to the order to the court or, if removal is impracticable, obliterate all portions of the record or file that identify the petitioner and notify the court of its action, and
- Delete from its public records all index references to the records and files that are subject to the expunction order.
A good expunction order will not only list the Texas Department of Public Safety as an entity that is ordered to destroyed the criminal records specified in the order, but it will also have language to the effect that the Texas Department of Public Safety is ordered to provide notice of the expunction order to any private entities that are listed in the expunction order and that Texas DPS provide notice to any other private entity that purchases criminal history information from the Texas Department of Public Safety. This notice will also request that each entity destroy any information in the possession of the entity that is subject to the order.
There is a very strong incentive for a person who learns of an arrest while an officer of a listed agency and who knows of the existence of an order expunging the records and files in question, as they could be found guilty of an offense if they knowingly release or use the records or files. Additionally, under Texas law, a person who knowingly fails to return or to obliterate identifying portions of a record or file ordered expunged can also be charged with the criminal offense of violating an expunction order, which is a Class B misdemeanor.
Attorney in Austin for Expungement of Criminal Records
When seeking expungement, choosing the right criminal defense lawyer can be essential in whether your petition for expungement is granted. Kevin Bennett works closely with his clients, providing them with the personalized attention and dedication that they deserve. Mr. Bennett has helped countless individuals expunge or seal their criminal records in Texas. To take the first step in protecting your criminal record, call Kevin Bennett at 512-476-4626 to discuss your eligibility to seal or expunge your criminal record in Austin or Travis County, TX.