How do I get my criminal record expunged in Texas for employment purposes?
Full Question:
Answer:
By having records expunged, they may not be disclosed to potential employers. Under Tex. Code Crim. Proc. Art. 55.01, a person is eligible for expunction if acquitted or convicted and pardoned or meet the following conditions:
(1) an indictment or information charging the person with commission of a felony has not been presented or has been dismissed or quashed; and the statutory limitations period has expired; or the indictment or information was dismissed or quashed for lack of probable cause; and
(2) 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; and the person has not been convicted of a felony in the five years preceding the date of the arrest.
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.
The following are TX statutes:
Art. 55.01 CODE CRIM. P. CODE CRIM. P. Right to Expunction
(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.
Art. 55.02 CODE CRIM. P. Procedure for Expunction
Sec. 1.
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.
(c) When the order of expunction is final, the clerk of the court shall
send a certified copy of the order to the Crime Records Service of the
Department of Public Safety and to each official or agency or other
governmental entity of this state or of any political subdivision of this
state designated by the person who is the subject of the order. The
certified copy of the order must be sent by secure electronic mail,
electronic transmission, or facsimile transmission or otherwise by
certified mail, return receipt requested. In sending the order to a
governmental entity designated by the person, the clerk may elect to
substitute hand delivery for certified mail under this subsection, but
the clerk must receive a receipt for that hand-delivered order.
(c-1) The Department of Public Safety shall notify any central federal
depository of criminal records by any means, including secure electronic
mail, electronic transmission, or facsimile transmission, of the order
with an explanation of the effect of the order and a request that the
depository, as appropriate, either:
(1) destroy or return to the court the records in possession of the
depository that are subject to the order, including any information
with respect to the order; or
(2) comply with Section 5(f) pertaining to information contained in
records and files of a person entitled to expunction under
Article 55.01(d).
(c-2) The Department of Public Safety shall also provide, by secure
electronic mail, electronic transmission, or facsimile transmission,
notice of the order to any private entity that is named in the order or
that purchases criminal history record information from the department.
The notice must include an explanation of the effect of the order and a
request that the entity destroy any information in the possession of the
entity that is subject to the order. The department may charge to a
private entity that purchases criminal history record information from the
department a fee in an amount sufficient to recover costs incurred by the
department in providing notice under this subsection to the entity.
(d) Any returned receipts received by the clerk from notices of the
hearing and copies of the order shall be maintained in the file on the
proceedings under this chapter.
Sec. 4.
(a) If the state establishes that the person who is the subject
of an expunction order is still subject to conviction for an offense
arising out of the transaction for which the person was arrested because
the statute of limitations has not run and there is reasonable cause to
believe that the state may proceed against the person for the offense,
the court may provide in its order that the law enforcement agency and
the prosecuting attorney responsible for investigating the offense may
retain any records and files that are necessary to the investigation. In
the case of a person who is the subject of an expunction order on the
basis of an acquittal, the court may provide in the expunction order that
the law enforcement agency and the prosecuting attorney retain records
and files if:
(1) the records and files are necessary to conduct a subsequent
investigation and prosecution of a person other than the person who is
the subject of the expunction order; or
(2) the state establishes that the records and files are necessary for
use in:
(A) another criminal case, including a prosecution, motion to
adjudicate or revoke community supervision, parole revocation hearing,
mandatory supervision revocation hearing, punishment hearing, or bond
hearing; or
(B) a civil case, including a civil suit or suit for possession of or
access to a child.
(b) Unless the person who is the subject of the expunction order is
again arrested for or charged with an offense arising out of the
transaction for which the person was arrested or unless the court
provides for the retention of records and files under Subsection (a)
of this section, the provisions of Articles 55.03 and 55.04 of this
code apply to files and records retained under this section.
Sec. 5.
(a) Except as provided by Subsections (f) and (g), on receipt
of the order, each official or agency or other governmental entity
named in the order shall:
(1) return all records and files that are subject to the expunction
order to the court or, if removal is impracticable, obliterate all
portions of the record or file that identify the person who is the
subject of the order and notify the court of its action; and
(2) delete from its public records all index references to the records
and files that are subject to the expunction order.
(b) Except in the case of a person who is the subject of an expunction
order on the basis of an acquittal or an expunction order based on an
entitlement under Article 55.01(d), the court may give the person who
is the subject of the order all records and files returned to it
pursuant to its order.
(c) Except in the case of a person who is the subject of an expunction
order based on an entitlement under Article 55.01(d) and except as
provided by Subsection (g), if an order of expunction is issued under
this article, the court records concerning expunction proceedings are
not open for inspection by anyone except the person who is the subject
of the order unless the order permits retention of a record under
Section 4 of this article and the person is again arrested for or
charged with an offense arising out of the transaction for which the
person was arrested or unless the court provides for the retention of
records and files under Section 4(a) of this article. The clerk of the
court issuing the order shall obliterate all public references to the
proceeding and maintain the files or other records in an area not open
to inspection.
(d) Except in the case of a person who is the subject of an expunction
order on the basis of an acquittal or an expunction order based on an
entitlement under Article 55.01(d) and except as provided by
Subsection (g), the clerk of the court shall destroy all the files or other records
maintained under Subsection (c) not earlier than the 60th day after the
date the order of expunction is issued or later than the first
anniversary of that date unless the records or files were released under
Subsection (b).
(d-1) Not later than the 30th day before the date on which the clerk
destroys files or other records under Subsection (d), the clerk shall
provide notice by mail, electronic mail, or facsimile transmission to the
attorney resenting the state in the expunction proceeding. If the
attorney representing the state in the expunction proceeding objects to
the destruction not later than the 20th day after receiving notice under
this subsection, the clerk may not destroy the files or other records
until the first anniversary of the date the order of expunction is issued
or the first business day after that date.
(e) The clerk shall certify to the court the destruction of files or
other records under Subsection (d) of this section.
(f) On receipt of an order granting expunction to a person entitled to
expunction under Article 55.01(d), each official, agency, or other
governmental entity named in the order:
(1) shall:
(A) obliterate all portions of the record or file that identify the
petitioner; and
(B) substitute for all obliterated portions of the record or file any
available information that identifies the person arrested; and
(2) may not return the record or file or delete index references to
the record or file.
(g) Notwithstanding any other provision in this section, an official,
agency, court, or other entity may retain receipts, invoices, vouchers,
or similar records of financial transactions that arose from the
expunction proceeding or prosecution of the underlying criminal cause in
accordance with internal financial control procedures. An official,
agency, court, or other entity that retains records under this
subsection shall obliterate all portions of the record or the file that identify the
person who is the subject of the expunction order.
Art. 55.03 CODE CRIM. P. Effect of Expunction
When the order of expunction is final:
(1) the release, maintenance, dissemination, or use of the expunged
records and files for any purpose is prohibited;
(2) except as provided in Subdivision (3) of this article, the person
arrested may deny the occurrence of the arrest and the existence of the
expunction order; and
(3) the person arrested 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.