Sealing and Expunging Criminal Records in Texas

Sealing or expunging a record of conviction refers to the process of legally removing an offense from a person's criminal history information. Upon successful removal, such records are typically no longer available to the general public as well as potential employers etc. While sealing and expungement are commonly used interchangeably, they mean different things in the State of Texas. Understanding the laws and statutes governing these processes are important in determining which is applicable in specific circumstances.

The Difference Between Sealing and Expunging Criminal Records

Sealing and expungement of criminal records are both procedures for cleaning up an adult's criminal history from the Texas Department of Public Safety (TDPS) database. However, they have striking differences. Sealing a criminal record, otherwise referred to as "non-disclosure" in Texas, simply means the process of restricting public access to an individual's arrest records as provided under Texas Penal Code § 411.074. These sealed records are still available to law enforcement agencies during the course of their duty.

On the other hand, expunction refers to the permanent removal and destruction of a criminal record. In this case, it is as if the record never existed. Upon successful expunction, the record's custodians are obligated to delete and clear the criminal information from their databases.

Records that are considered public may be accessible from some third-party websites. Operating independently of any federal, state or local agency, such websites may simplify the search process as they are not limited by geographic location. In addition, third-party sites typically have search engines that may be useful for filtering specific or multiple record(s). To use third-party or government websites, interested parties may need to provide:

• The name of the person involved in the record, unless said person is a juvenile
• The location or assumed location of the record or person involved. This includes information such as the city, county, or state that the person resides in or was accused in

However, third-party sites are independent of government sources and are not sponsored by these government agencies. Because of this, record availability cannot be guaranteed.

How to Seal a Criminal Record in Texas

The processes of sealing criminal records in Texas are provided under Article411 of the Texas Government Code. Generally, there are two types of sealing in the state: automatic non-disclosure and non-disclosure with a petition.

Automatic non-disclosure is provided for first-time misdemeanor offenses. The offender does not need to wait for a stipulated time or file any petition. However, records pertaining to traffic offenses are exempt from this rule.

Non-disclosure with a petition applies to all other offenses that do not fall under the umbrella of automatic non-disclosure. To be eligible to file for a motion to seal, petitioners must complete a waiting period as contained in Texas Penal Code Chapters 20, 21, 22, 25, 42, or 46. Under this statute, repeat misdemeanor offenders will wait for 2 years while those guilty of a felony will wait for 5 years.

Ex-offenders are required to follow the following steps to seal their records:

Step 1: Confirm eligibility

Defendants seeking to seal their records must meet the following eligibility criteria:

• The offender must have completed their deferred adjudication. The individual must have completed his/her deferred adjudication successfully;
• The individual must have completed the required waiting period;
• The offense for which non-disclosure is sought must never be a violent crime, sexual offense, or a crime involving minors or elderly/disabled individuals.

Step 2: Gather pertinent information needed to facilitate the filing process.

Before filing, applicants are generally required to provide the original case number, arrest date, arresting agency, and applicant's personal identification information including social security number and date of birth.

Step 3: File the petition for a non-disclosure order

Visit the office of the clerk of the courthouse that handled the case to file the petition for a non-disclosure. Generally, a filing fee of approximately $280 needs to be paid to facilitate the process. Note that actual fees to be paid may be more or less depending on the local court's fee schedule. Make sure to provide the following information before visiting the court:

• applicant's personal identification information,
• original case and arrest details such as correctional facility details and arresting agency, and
• a comprehensive list of all agencies across the state that may have records of the case.

Step 4: Attend the non-disclosure hearing

After a petition is filed, the Clerk's office provides a hearing date, which according to state laws, is at least 30 days after filing the petition. At the hearing, the presiding judge hears legal arguments as to why the petition should be granted or denied.

Step 5: Dissemination of Non-Disclosure Order and Record Sealing

If the petition is granted, the Clerk of Court will send a copy of the order to all agencies listed in the petition. These agencies must seal the record in their custody from public view.

What Crimes Can Be Expunged in Texas

In Texas, non-conviction records as well as criminal records that received a pardon may be expungeable. As provided by the State Bar of Texas, the following records are eligible for expunction:

• Records of an arrest for a crime that was never charged
• Records of dismissed criminal charges
• Records of juvenile misdemeanor offenses
• Records of a minor's conviction for alcohol-related offenses
• Records for which the statute of limitations has expired
• Records of conviction for not attending school
• Records of convictions or arrest based on the applying individual's identity theft
• Records of a conviction that was later acquitted by the Criminal Court of Appeals or trial court
• Records of conviction for offenses pardoned by the president of the states or by the governor of Texas.

How to Expunge Criminal Records in Texas

Chapter 55 of theTexas Code of Criminal Procedure provides processes for criminal record expunction in Texas.

Step 1: After determining eligibility, file a petition for expunction

The petitioner is expected to file a petition for expunction with the district court. Typically, the petition is required to include the following information:

• Petitioner's personal identifying information
• A list of charges for which the expunction is sought
• Arrest details including the date and location of arrest, arresting agency, and a list of all the agencies that have records of the event
• Case number
• Name of the sentencing court
• How the case was resolved and date

To avoid errors, applicants are advised to hire a lawyer to prepare the petition for them. Note that filing fees vary from one county to another.

Step 2: Expunction hearing

After the petition has been filed and the hearing date set, agencies are typically notified to allow them the opportunity to contest the expunction. If all legal requirements are met, an expunction is granted.

Step 3: Drafting and signing the Order

The petitioner is expected to draft and present an "order of expunction" to the judge for signing.

After expunction, the individual may deny the occurrence of the arrest or conviction. It becomes a crime to consciously reveal any information or fail to destroy any information subject to an order of expunction in Texas.

Note: Eligible individuals may be able to expunge more than one record at a time.

Do Sealed Records Show up In Texas Background Checks?

No, after the court has sealed a record, it typically doesn't show up on background checks. An order of non—disclosure generally prohibits law enforcement agencies and criminal record repositories across the state from disclosing sealed criminal records. Hence, sealed records are not eligible for disclosure in most background checks.

However, if there's a delay in the execution of an order of non-disclosure or a delay in the court's decision to seal a record after a petition has been filed, the records may still appear in background checks.

Who Can See Sealed Criminal Records in Texas?

While sealed criminal records are restricted from public view, certain entities and agencies may still access them. A list of exceptions to non-disclosures in Texas is provided in the 2017 amendments to the Non-disclosure law. Some of these selected persons and organizations include:

• Law enforcement agencies for the purpose of an ongoing criminal investigation
• Specific non-criminal justice state agencies responsible for licensing, certification, and regulation of certain professions
• Private entities responsible for hiring individuals for security-sensitive positions such as jobs directly involving minors may have access to sealed records
• Individuals with a proper court order authorizing access
• Owners of the record

Although expunged records are completely erased, they may be resurrected in some cases. Note that some criminal records are sent to the Federal Bureau of Investigation by state agencies. If this occurs before a record is expunged, the information may still be accessible in some way.

How to Obtain Sealed Records in Texas

Upon sealing of a criminal record, these records are limited to only authorized persons. However, interested members of the public may be able to access such records with court orders. To get a court order, the inquirer has to petition the court.

Petitioners are advised to review the state's laws and amendments to ascertain eligibility and the purpose for which this access may be permitted. Inquirers may also call the applicable court clerk for confirmation as well as to ascertain the protocol to follow. Information of all courts in the state are provided on the Texas Judicial Website.