How Do I Expunge a Shoplifting Record in Texas?
Full Question:
Answer:
Even after completing a deferred adjudication probation in Texas, your case is a matter of public record, even if it was dismissed when you completed your probation. As of September 1, 2003, an "Order of Nondisclosure" is a legal procedure through which, under certain circumstances, a court order can be obtained which prohibits governmental agencies from disclosing the existence of your case. In some cases, you can petition the court for an order of nondisclosure upon successful completion of your deferred adjudication probation. For certain crimes, a five year waiting period applies.
The answer depends on whether you received a deferred adjudication and the classification of the charge. The Texas expunction procedure (Code of Criminal Procedure chapter 55) allows you to expunge an arrest that did not lead to a conviction or community supervision. You can can also expunge class C misdemeanors that resulted in community supervision (deferred adjudication). If you were convicted, you may be eligible to have your conviction set aside.
Please see the following TX statutes:
§ 411.081 GOV'T Application of Subchapter
(a) This subchapter does not apply to criminal history record
information that is contained in:
(1) posters, announcements, or lists for identifying or apprehending
fugitives or wanted persons;
(2) original records of entry, including police blotters maintained
by a criminal justice agency that are compiled chronologically and
required by law or long-standing practice to be available to the
public;
(3) public judicial, administrative, or legislative proceedings;
(4) court records of public judicial proceedings;
(5) published judicial or administrative opinions; or
(6) announcements of executive clemency.
(b) This subchapter does not prohibit a criminal justice agency from
disclosing to the public criminal history record information that is
related to the offense for which a person is involved in the criminal
justice system.
(c) This subchapter does not prohibit a criminal justice agency from
confirming previous criminal history record information to any person on
specific inquiry about whether a named person was arrested, detained,
indicted, or formally charged on a specified date, if the information
disclosed is based on data excluded by Subsection (b).
(d) Notwithstanding any other provision of this subchapter, if a person
is placed on deferred adjudication community supervision under
Section 5, Article 42.12, Code of Criminal Procedure, subsequently receives
a discharge and dismissal under Section 5(c), Article 42.12, and satisfies
the requirements of Subsection (e), the person may petition the court
that placed the defendant on deferred adjudication for an order of
nondisclosure under this subsection. Except as provided by
Subsection (e), a person may petition the court under this
subsection "regardless of whether the person has been previously placed on' deferred
adjudication community supervision for another offense. After notice to
the state and a hearing on whether the person is entitled to file the
petition and issuance of the order is in the best interest of justice,
the court shall issue an order prohibiting criminal justice agencies from
disclosing to the public criminal history record information related to
the offense giving rise to the deferred adjudication. A criminal justice
agency may disclose criminal history record information that is the
subject of the order only to other criminal justice agencies, for criminal
justice or regulatory licensing purposes, an agency or entity listed in
Subsection (i), or the person who is the subject of the order. A person
may petition the court that placed the person on deferred adjudication
for an order of nondisclosure on payment of a $28 fee to the clerk of
the court in addition to any other fee that generally applies to the
filing of a civil petition. The payment may be made only on or after:
(1) the discharge and dismissal, if the offense for which the person
was placed on deferred adjudication was a misdemeanor other than a
misdemeanor described by Subdivision (2);
(2) the second anniversary of the discharge and dismissal, if the
offense for which the person was placed on deferred adjudication was
a misdemeanor under Chapter 20, 21, 22, 25, 42, or 46, Penal Code;
or
(3) the fifth anniversary of the discharge and dismissal, if the
offense for which the person was placed on deferred adjudication was
a felony.
(e) A person is entitled to petition the court under Subsection (d)
only if during the period of the deferred adjudication community
supervision for which the order of nondisclosure is requested and during
the applicable period described by Subsection (d)(1), (2), or (3), as
appropriate, the person is not convicted of or placed on deferred
adjudication community supervision under Section 5, Article 42.12, Code
of Criminal Procedure, for any offense other than an offense under the
Transportation Code punishable by fine only. A person is not entitled to
petition the court under Subsection (d) if the person was placed on the
deferred adjudication community supervision for or has been previously
convicted or placed on any other deferred adjudication for:
(1) an offense requiring registration as a sex offender under
Chapter 62, Code of Criminal Procedure;
(2) an offense under Section 20.04, Penal Code, regardless of whether
the offense is a reportable conviction or adjudication for purposes of
Chapter 62, Code of Criminal Procedure;
(3) an offense under Section 19.02, 19.03, 22.04, 22.041, 25.07, or
42.072, Penal Code; or
(4) any other offense involving family violence, as defined by
Section 71.004, Family Code.
(f) For purposes of Subsection (d), a person is considered to have been
placed on deferred adjudication community supervision if, regardless of
the statutory authorization:
(1) the person entered a plea of guilty or nolo contendere;
(2) the judge deferred further proceedings without entering an
adjudication of guilt and placed the person under the supervision of
the court or an officer under the supervision of the court; and
(3) at the end of the period of supervision the judge dismissed the
proceedings and discharged the person.
(g) Not later than the 15th business day after the date an order of
nondisclosure is issued under this section, the clerk of the court shall
send all relevant criminal history record information contained in the
order or a copy of the order by certified mail, return receipt
requested, or secure electronic mail, electronic transmission, or
facsimile transmission to the Crime Records Service of the Department of
Public Safety.
(g-1) Not later than 10 business days after receipt of relevant
criminal history record information contained in an order or a copy of an
order under Subsection (g), the Department of Public Safety shall seal
any criminal history record information maintained by the department that
is the subject of the order. The department shall also send all relevant
criminal history record information contained in the order or a copy of
the order by certified mail, return receipt requested, or secure
electronic mail, electronic transmission, or facsimile transmission to
all:
(1) 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;
(2) central federal depositories of criminal records that there is
reason to believe have criminal history record information that is
the subject of the order; and
(3) private entities that purchase criminal history record information
from the department or that otherwise are likely to have criminal history
record information that is subject to the order.
(g-1a) The director shall adopt rules regarding minimum standards for
the security of secure electronic mail, electronic transmissions, and
facsimile transmissions under Subsections (g) and (g-1). In adopting
rules under this subsection, the director shall consult with the Office
of Court Administration of the Texas Judicial System.
(g-1b) Not later than 30 business days after receipt of relevant
criminal history record information contained in an order or a copy of an
order from the Department of Public Safety under Subsection (g-1), an
individual or entity described by Subsection (g-1)(1) shall seal any
criminal history record information maintained by the individual or
entity that is the subject of the order.
(g-1c) 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 relevant criminal history record information contained in an
order or a copy of an order under Subsection (g-1)(3) to the entity.
(g-2) A person whose criminal history record information has been
sealed under this section is not required in any application for
employment, information, or licensing to state that the person has been
the subject of any criminal proceeding related to the information that is
the subject of an order issued under this section.
(h) The clerk of a court that collects a fee under Subsection (d) shall
remit the fee to the comptroller not later than the last day of the month
following the end of the calendar quarter in which the fee is collected,
and the comptroller shall deposit the fee in the general revenue fund.
The Department of Public Safety shall submit a report to the legislature
not later than December 1 of each even-numbered year that includes
information on:
(1) the number of petitions for nondisclosure and orders of
nondisclosure received by the department in each of the previous two
years;
(2) the actions taken by the department with respect to the petitions
and orders received;
(3) the costs incurred by the department in taking those actions;
and
(4) the number of persons who are the subject of an order of
nondisclosure and who became the subject of criminal charges for an
offense committed after the order was issued.
(i) A criminal justice agency may disclose criminal history record
information that is the subject of an order of nondisclosure to the
following noncriminal justice agencies or entities only:
(1) the State Board for Educator Certification;
(2) a school district, charter school, private school, regional
education service center, commercial transportation company, or education
shared service arrangement;
(3) the Texas; Medical Board;
(4) the Texas School for the Blind and Visually Impaired;
(5) the Board of Law Examiners;
(6) the State Bar of Texas;
(7) a district court regarding a petition for name change under
Subchapter B, Chapter 45, Family Code;
(8) the Texas School for the Deaf;
(9) the Department of Family and Protective Services;
(10) the Texas Youth Commission;
(11) the Department of Assistive and Rehabilitative Services;
(12) the Department of State Health Services, a local mental health
service, a local mental retardation authority, or a community center
providing services to persons with mental illness or retardation;
(13) the Texas Private Security Board;
(14) a municipal or volunteer fire department;
(15) the Texas Board of Nursing;
(16) a safe house providing shelter to children in harmful situations;
(17) a public or nonprofit hospital or hospital district;
(18) the Texas Juvenile Probation Commission;
(19) the securities commissioner, the banking commissioner, the savings
and mortgage lending commissioner, or the credit union commissioner;
(20) the Texas; State Board of Public Accountancy;
(21) the Texas Department of Licensing and Regulation;
(22) the Health and Human Services Commission;
(23) the Department of Aging and Disability Services;
(24) the Texas; Education Agency, and
(25) the Department of Information Resources but only regarding an
employee, applicant for employment, contractor, subcontractor, intern, or
volunteer who provides network security services under Chapter 2059 to:
(A) the Department of Information Resources; or
(B) a contractor or subcontractor of the Department of Information
Resources.
Art. 55.01 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.
§ 31.03 PENAL Theft
**Update Notice: This section has been amended by
HOUSE BILL No. 1282 OF 81st LEGISLATURE
HOUSE BILL No. 1466 OF 81st LEGISLATURE
SENATE BILL No. 1163 OF 81st LEGISLATURE
HOUSE BILL No. 348 OF 81st LEGISLATURE
HOUSE BILL No. 671 OF 81st LEGISLATURE
(a) A person commits an offense if he unlawfully appropriates property
with intent to deprive the owner of property.
(b) Appropriation of property is unlawful if:
(1) it is without the owner's effective consent;
(2) the property is stolen and the actor appropriates the property
knowing it was stolen by another; or
(3) property in the custody of any law enforcement agency was
explicitly represented by any law enforcement agent to the actor as being
stolen and the actor appropriates the property believing it was stolen by
another.
(c) For purposes of Subsection (b):
(1) evidence that the actor has previously participated in recent
transactions other than, but similar to, that which the prosecution is
based is admissible for the purpose of showing knowledge or intent and
the issues of knowledge or intent are raised by the actor's plea of not
guilty;
(2) the testimony of an accomplice shall be corroborated by proof that
tends to connect the actor to the crime, but the actor's knowledge or
intent may be established by the uncorroborated testimony of the
accomplice;
(3) an actor engaged in the business of buying and selling used or
secondhand personal property, or lending money on the security of
personal property deposited with the actor, is presumed to know upon
receipt by the actor of stolen property (other than a motor vehicle
subject to Chapter 501, Transportation Code) that the property has been
previously stolen from another if the actor pays for or loans against the
property $25 or more (or consideration of equivalent value) and the actor
knowingly or recklessly:
(A) fails to record the name, address, and physical description or
identification number of the seller or pledgor;
(B) fails to record a complete description of the property, including
the serial number, if reasonably available, or other identifying
characteristics; or
(C) fails to obtain a signed warranty from the seller or pledgor that
the seller or pledgor has the right to possess the property. It is the
express intent of this provision that the presumption arises unless the
actor complies with each of the numbered requirements;
(4) for the purposes of Subdivision (3)(A), "identification number"
means driver's license number, military identification number,
identification certificate, or other official number capable of
identifying an individual;
(5) stolen property does not lose its character as stolen when
recovered by any law enforcement agency;
(6) an actor engaged in the business of obtaining abandoned or wrecked
motor vehicles or parts of an abandoned or wrecked motor vehicle for
resale, disposal, scrap, repair, rebuilding, demolition, or other form of
salvage is presumed to know on receipt by the actor of stolen property
that the property has been previously stolen from another if the actor
knowingly or recklessly:
(A) fails to maintain an accurate and legible inventory of each motor
vehicle component part purchased by or delivered to the actor, including
the date of purchase or delivery, the name, age, address, sex, and
driver's license number of the seller or person making the delivery, the
license plate number of the motor vehicle in which the part was
delivered, a complete description of the part, and the vehicle
identification number of the motor vehicle from which the part was
removed, or in lieu of maintaining an inventory, fails to record the name
and certificate of inventory number of the person who dismantled the
motor vehicle from which the part was obtained;
(B) fails on receipt of a motor vehicle to obtain a certificate of
authority, sales receipt, or transfer document as required by
Chapter 683, Transportation Code, or a certificate of title showing that
the motor vehicle is not subject to a lien or that all recorded liens on
the motor vehicle have been released; or
(C) fails on receipt of a motor vehicle to immediately remove an
unexpired license plate from the motor vehicle, to keep the plate in a
secure and locked place, or to maintain an inventory, on forms provided
by the Texas Department of Transportation, of license plates kept under
this paragraph, including for each plate or set of plates the license
plate number and the make, motor number, and vehicle identification
number of the motor vehicle from which the plate was removed;
(7) an actor who purchases or receives a used or secondhand motor
vehicle is presumed to know on receipt by the actor of the motor vehicle
that the motor vehicle has been previously stolen from another if the
actor knowingly or recklessly:
(A) fails to report to the Texas Department of Transportation the
failure of the person who sold or delivered the motor vehicle to the
actor to deliver to the actor a properly executed certificate of title to
the motor vehicle at the time the motor vehicle was delivered; or
(B) fails to file with the county tax assessor-collector of the county
in which the actor received the motor vehicle, not later than the 20th
day after the date the actor received the motor vehicle, the registration
license receipt and certificate of title or evidence of title delivered
to the actor in accordance with Subchapter D, Chapter 520, Transportation
Code, at the time the motor vehicle was delivered;
(8) an actor who purchases or receives from any source other than a
licensed retailer or distributor of pesticides a restricted-use pesticide
or a state-limited-use pesticide or a compound, mixture, or preparation
containing a restricted-use or state-limited-use pesticide is presumed to
know on receipt by the actor of the pesticide or compound, mixture, or
preparation that the pesticide or compound, mixture, or preparation has
been previously stolen from another if the actor:
(A) fails to record the name, address, and physical description of the
seller or pledgor;
(B) fails to record a complete description of the amount and type of
pesticide or compound, mixture, or preparation purchased or received; and
(C) fails to obtain a signed warranty from the seller or pledgor that
the seller or pledgor has the right to possess the property; and
(9) an actor who is subject to Section 409, Packers and Stockyards Act
(7 U.S.C. Section 228b), that obtains livestock from a commission
merchant by representing that the actor will make prompt payment is
presumed to have induced the commission merchant's consent by deception
if the actor fails to make full payment in accordance with Section 409,
Packers and Stockyards Act (7 U.S.C. Section 228b).
(d) It is not a defense to prosecution under this section that:
(1) the offense occurred as a result of a deception or strategy on the
part of a law enforcement agency, including the use of an undercover
operative or peace officer;
(2) the actor was provided by a law enforcement agency with a facility
in which to commit the offense or an opportunity to engage in conduct
constituting the offense; or
(3) the actor was solicited to commit the offense by a peace officer,
and the solicitation was of a type that would encourage a person
predisposed to commit the offense to actually commit the offense, but
would not encourage a person not predisposed to commit the offense to
actually commit the offense.
(e) Except as provided by Subsection (f), an offense under this
section is:
(1) a Class C misdemeanor if the value of the property stolen is less
than:
(A) $50; or
(B) $20 and the defendant obtained the property by issuing or passing
a check or similar sight order in a manner described by Section 31.06;
(2) a Class B misdemeanor if:
(A) the value of the property stolen is:
(i) $50 or more but less than $500; or
(ii) $20 or more but less than $500 and the defendant obtained the
property by issuing or passing a check or similar sight order in a manner
described by Section 31.06; or
(B) the value of the property stolen is less than:
(i) $50 and the defendant has previously been convicted of any grade
of theft; or
(ii) $20, the defendant has previously been convicted of any grade of
theft, and the defendant obtained the property by issuing or passing a
check or similar sight order in a manner described by Section 31.06;
(3) a Class A misdemeanor if the value of the property stolen is $500
or more but less than $1,500;
(4) a state jail felony if:
(A) the value of the property stolen is $1,500 or more but less than
$20,000, or the property is less than 10 head of cattle, horses, or
exotic livestock or exotic fowl as defined by Section 142.001,
Agriculture Code, or any part thereof under the value of $20,000, or
less than 100 head of sheep, swine, or goats or any part thereof under
the value of $20,000;
(B) regardless of value, the property is stolen from the person of
another or from a human corpse or grave;
(C) the property stolen is a firearm, as defined by Section 46.01;
(D) the value of the property stolen is less than $1,500 and the
defendant has been previously convicted two or more times of any grade of
theft;
(E) the property stolen is an official ballot or official carrier
envelope for an election; or
(F) the value of the property stolen is less than $20,000 and the
property stolen is insulated or noninsulated wire or cable that consists
of at least 50 percent:
(i) aluminum;
(ii) bronze; or
(iii) copper;
(5) a felony of the third degree if the value of the property stolen
is $20,000 or more but less than $100,000, or the property is:
(A) 10 or more head of cattle, horses, or exotic livestock or exotic
fowl as defined by Section 142.001, Agriculture Code, stolen during a
single transaction and having an aggregate value of less than $100,000;
or
(B) 100 or more head of sheep, swine, or goats stolen during a single
transaction and having an aggregate value of less than $100,000;
(6) a felony of the second degree if the value of the property stolen
is $100,000 or more but less than $200,000; or
(7) a felony of the first degree if the value of the property stolen
is $200,000 or more.
(f) An offense described for purposes of punishment by
Subsections (e)(1)-(6) is increased to the next higher category of
offense if it is shown on the trial of the offense that:
(1) the actor was a public servant at the time of the offense and the
property appropriated came into the actor's custody, possession, or
control by virtue of his status as a public servant;
(2) the actor was in a contractual relationship with government at the
time of the offense and the property appropriated came into the actor's
custody, possession, or control by virtue of the contractual
relationship; or
(3) the owner of the property appropriated was at the time of the
offense an elderly individual.
(g) For the purposes of Subsection (a), a person is the owner of
exotic livestock or exotic fowl as defined by Section 142.001,
Agriculture Code, only if the person qualifies to claim the animal under
Section 142.0021, Agriculture Code, if the animal is an estray.
(h) In this section:
(1) "Restricted-use pesticide" means a pesticide classified as a
restricted-use pesticide by the administrator of the Environmental
Protection Agency under 7 U.S.C. Section 136a, as that law existed on
January 1, 1995, and containing an active ingredient listed in the
federal regulations adopted under that law (40 C.F.R. Section 152.175)
and in effect on that date.
(2) "State-limited-use pesticide" means a pesticide classified as a
state-limited-use pesticide by the Department of Agriculture under
Section 76.003, Agriculture Code, as that section existed on
January 1, 1995, and containing an active ingredient listed in the rules
adopted under that section (4 TAG Section 7.24) as that section existed
on that date.
(i) For purposes of Subsection (c)(9), "livestock" and "commission
merchant" have the meanings assigned by Section 147.001, Agriculture
Code.
(j) With the consent of the appropriate local county or district
attorney, the attorney general has concurrent jurisdiction with that
consenting local prosecutor to prosecute an offense under this
section that involves the state Medicaid program.