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Expunge Me Not

“Can I get my record from when I was young/a kid/apparently temporarily brain dead expunged?”  This question is common, and valid. We all make mistakes, and as the years go by and we have proven ourselves responsible, upstanding citizens we expect there to come a point when those mistakes aren’t held against us. Right? So we start to wonder about that funny legal term; expunction. Expunction, when applicable, is a procedure to have all records of an arrest, charge, court proceedings and sentencing returned to the court and destroyed. Literally, returned to the court and destroyed. Sounds great, but does your criminal case qualify for such an extraordinary measure?

The problem is, unlike all those hijinks on your “permanent record” from elementary and high school, your criminal record will not disappear with your acne and awkward teenage years.  Why not? Look no farther than the statute itself.  Article 55.01 if the Texas Code of Criminal Procedure gives us the very narrow circumstances under which a person has a right to an expunction. The right exists when: someone was tried and acquitted; convicted and subsequently pardoned (and good luck getting Mr. Perry on the phone for that one); someone is granted relief on the basis of actual innocence; or the person has been released and the charge has not resulted in a final conviction, is no longer pending, and there was no court ordered community supervision under Article 42.12 for the offense.

It’s that last part, about the community supervision, that seems to trip most people up. Yes, many people are given a deferred adjudication for an offense and put on probation. Some of them even make it all the way through on probation without getting revoked and adjudicated guilty. Then, once that probation is complete, the charge is dismissed and there is no final conviction. However, that fact that there was probation qualifies (typically) as community supervision, whether you reported to a probation officer or not. I should point out that these rules apply to class B misdemeanors and up, excluding class C misdemeanors which tend to be akin to traffic tickets and the like.

So you got arrested, and got the charge deferred, and successfully completed probation. That is all great, and you won’t end up with a criminal conviction, which was worth it. But are you entitled to have all evidence of your arrest, court proceedings and charges completely and finally obliterated? Sorry, but the answer is probably no.

There are other alternatives, such as an Order of Non-Disclosure, that the judge likely mentioned during your sentencing. No one will blame you for not remembering that little detail when you were being sentenced, as there was probably a-lot of other things occupying your mind.  The order of non-disclosure doesn’t destroy any records like an expunction will, and the police and other law enforcement agencies will still have access to your record as will a whole slew of licensing agencies. But if you are looking to keep John Q. Public from finding out about that one and only time you decided to try your hand at being a small time criminal, only to learn you were worse at it than long division and remembering what the Pythagorean Theorem is, maybe this option is right for you, even if the clerks at the courthouse won’t be building a little bonfire with your criminal record.

By: Ryan Lee

As usual, please do not take this as legal advice about your specific case. If you have questions, please contact a criminal lawyer.

 

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