Expunging criminal records in Texas is a post-conviction process that makes them inaccessible to the public. Expungement (also referred to in the statutes as expunction) is available when the person was arrested but not convicted, or for class C misdemeanors where the person successfully completes deferred adjudication.
Criminal records that have been expunged will generally not show up a background check. People with expunged records usually do not have to disclose them when asked. This can be helpful to people seeking to gain employment.
Under Texas Code of Criminal Procedure 55.01, “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 certain conditions are met.
1. What does expunging a Texas criminal record do?
In Texas, a criminal record or file that has been expunged cannot be:
- maintained, or
Government agencies with the record are prohibited from doing any of these things, for any purpose.1
People who have had their record expunged can deny that the incident ever happened. They do not have to say they were ever arrested. They do not have to say that they have a criminal record that has been expunged.2
This can be especially helpful when applying for a job. People with an expunged record do not have to disclose it on the job application. They can deny that they were arrested if they are asked.
The only exception is if they are asked in a criminal proceeding, under oath. In these cases, they only have to say that the record has been expunged. They do not have to provide any more details about the criminal record.3 Along with a motion for a new trial, this is a form of post-conviction relief in Texas.
2. What types of criminal records can be expunged?
Texas allows for very few criminal records to be expunged. Most of these are arrest records. Only the following types of criminal records can be expunged:
- arrest records that did not lead to a criminal charge,
- criminal charges that were dismissed and the statute of limitations has expired,
- certain juvenile misdemeanors,
- arrest records for certain acquittals,
- convictions that were pardoned or overturned on appeal for actual innocence, and
- Class C misdemeanors, after a successful deferred adjudication.4
Arrest records can be expunged if no charge was filed and the waiting period has elapsed. The waiting period depends on the type of offense:
- 180 days for Class C misdemeanors,
- 1 year for Class B misdemeanors or Class A misdemeanors, and
- 3 years for felonies, or for any misdemeanor arrest in a situation that also included a felony offense.5
To be eligible for expungement, there cannot be any pending criminal charges.
An acquittal can be grounds for expunging an arrest record. However, it will not be eligible if there was another conviction in the criminal episode.6
Example: Dylan is arrested and charged with assault, battery, and misdemeanor drug possession from a single incident. He is acquitted of the drug charge, but convicted on the others. He will not be allowed to expunge the arrest for drug possession.
3. Is there a difference between expunction and sealing a record?
In Texas, expunging a criminal record in Texas is different than getting it sealed. This makes Texas different than many other states.
Records can be sealed with an Order of Nondisclosure. Sealed records are removed from public record. They cannot be accessed easily by most members of the public. People with a criminal record that has been sealed can deny that it happened. This can still help people, including job applicants, who want to keep a criminal record hidden.
However, certain government agencies will still have access to a record that has been sealed, rather than expunged. They can share the information with certain licensing and public employment agencies. These include:
Records that have been sealed, rather than expunged, can also be used in court.
4. Are there penalties for disclosing an expunged record?
Anyone who knowingly does any of the following with an expunged record commits a Class B misdemeanor:
- releases it,
- disseminates it,
- uses it,
- fails to return it, or
- does not destroy identifying details in the record.
5. Can a deceased person's record be expunged?
The criminal record of someone deceased can be expunged by a close relative. The record has to be eligible under the normal rules for expunction.
The close relatives who can request the expungement are:
- adult children of the deceased, and
- adult siblings of the deceased.8
Texas Code of Criminal Procedure 55.03(2).
Texas Code of Criminal Procedure 55.03(3).
Texas Code of Criminal Procedure 55.01.
Texas Code of Criminal Procedure 55.01(a)(2)(A)(i).
Texas Code of Criminal Procedure 55.01(c).
Texas Code of Criminal Procedure 55.011.