How Long Before A Felony Can Be Expunged 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, such as felonies, a five year waiting period applies.
The answer depends on whether your friend received a deferred adjudication. 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.
