If your criminal case has been dismissed or you’ve been found not guilty that’s wonderful news. Congratulations and we’re glad that justice has been served. This is all good news, but it’s important to remember that this is only half the battle. Once you’ve been arrested you have a record. Even if the case was dismissed or you’ve been found not guilty it’s still on your record until you go through the separate process of getting it expunged.

Over the years, we’ve had numerous clients meet with us and say their previous case it not on their record only to learn that they did not go through the separate process of getting it expunged. Unbeknown to them the arrest is still on their record and it’s prevented them from getting a job or housing. Or, god for bid, they’ve picked up a new charge and now the prosecutors can see that they’ve had a prior arrest. Even though the previous case was dismissed, it’s likely to still be a factor when resolving a new criminal matter.

In this article, we’ll go over what an expunction is, the expungement process, how it works, and why it’s important. We’ll also discuss a few limitations on expunctions. If you have any questions always go to GBAfirm.com or parolelaw.com for more information. Of course, you can always call us at (512) 476-2494 if you’d like some additional questions answered. Contact us today for a free consultation.

What is an Expunction?

In law, there are generally three types of law, criminal, civil, and administrative. An expunction falls into the civil area of law. An expungement removes arrests and/or convictions from a person’s criminal record entirely as if they never happened. An expunction is a civil process that requires a civil lawsuit to be filed. It’s kind of like when you get into a car accident and sue the person who hit your car. With an expunction, the lawsuit has to be filed in the county where the offense occurred. The expunction order is then signed by the judge and orders all the various entities that have a record of that charge to destroy their records or return them to you.

In some cases, there are certain cases where you generally cannot get records expunged.

An expungement removes arrests and/or convictions from a person's criminal record entirely as if they never happened.

An expungement removes arrests and/or convictions from a person’s criminal record entirely as if they never happened.

Why is it important to expunge a criminal record?

The need for expungement has greatly increased in the last decade because of the dramatic increase in the use of criminal background checks.

Nearly 9 in 10 employers, 4 in 5 landlords, and 3 in 5 colleges use background checks to screen for applicants’ criminal records, and one study found that more than 45,000 federal and state statutes and regulations impose disqualifications or disadvantages on individuals with a conviction. Having criminal charges on your record can hinder: employment, applications to schools and colleges, relationships, housing, and other government services. Even when there isn’t a conviction, an arrest record decreases a person’s employment prospects more than other common employment-related stigmas.

Since an expungement can offer a fresh start of sorts, one of the most important actions that people who have been arrested or convicted can take is to investigate their jurisdiction’s expungement procedures. For example, assume that Joe was convicted of petty theft and later had the conviction expunged. This was Joe’s only brush with the criminal justice system. If Joe applies for a job and the application asks, “Have you ever been convicted of a criminal offense?” Joe can honestly answer, “No.”

The law varies from state to state, but generally, you do not have to disclose your expunged conviction when applying for a job, so when applying to a school or for a new job, a person with an expunged criminal conviction can honestly answer “no” when asked if they have any previous convictions. In an Internet-reliant age, anyone with a credit card can perform a background check online on anyone they wish. With a background check, if your record has been expunged, the criminal conviction will not be apparent even if a previous arrest

How is the fee for an expunction determined?

Within one expunction suit, you can expunge 10 cases in one county if all the cases were dismissed and they were all filed in one county. If you have 10 cases in 10 different counties you’ll have to file one expunction in each county. Most lawyers set their fees for expunctions based on the number of lawsuits that have to be filed and not the number of charges that have to be expunged. This is because the filing fees associated with each expunction lawsuit are between $300 to $500.

It’s important that you hire a lawyer who is familiar with all the various entities unique to that particular county. For example, if you’ve been arrested for DWI by the Austin Police Department in Austin, Texas, a few of the law enforcement entities that have a record of the charge include the Austin Police Department, the Sheriff’s office, the County Attorney’s office, the County Clerk’s Office, and Travis County Pre-Trial services. That’s just a few of about 15 to 20 various entities, just in Austin, that will have a record of that arrest. It’s important to hire a lawyer that knows all those entities because you only get one shot at that expunction.

What crimes can be expunged in Texas?

What crimes can be expunged in Texas?

What crimes can be expunged in Texas?

You can expunge any arrest or criminal charge in Texas that has been dismissed or where you have been found not guilty. The law regarding expunctions recently changed as it pertains to multiple offenses. In the past, you could only have an expunction done if all of the charges from one offense were dismissed. For example ,if you were charged with DWI and speeding, you could only have the DWI expunged both the speeding and the DWI charges were dismissed. Now, you can have some charges dismissed even if you were convicted of other offenses arising from the same criminal episode. This most frequently arises when a person is charged with DWI and pleas to a non-DWI offense like obstruction of a highway or reckless driving. Depending on the county in which you are charged, you may be able to expunged the DWI even if you were placed on probation for a separate offense.

Some states require the passage of a certain amount of time, for example, before someone becomes eligible for expungement. The effects of an expungement can also be different depending on where you live. For example, some courts will just seal your records while others provide a process that will result in the dismissal of your conviction. Also, a jurisdiction may allow expungement only for arrests and misdemeanor convictions and not allow felony convictions to be expunged.

Though the details can vary from one state to the next, most states‘ laws provide that once an arrest or conviction has been expunged, it need not be disclosed, including to potential employers or landlords.

You should note that it’s still important to avoid all convictions if possible. Our goal is always to do everything we can to get a client’s criminal record as clean as possible.

What if no charges were ever filed by the prosecutors?

Sometimes, a person is arrested by the police, but no charges are filed by the prosecutors. This means that while a clerk’s office does not have a cause number associated with the charge there is likely still a police offense report and a mugshot with your information. If the statute of limitations has expired for the charge you can (and should) still pursue an expunction. The statute of limitations for most misdemeanor offenses is two years. The statute of limitations means that from the time of arrest, the prosecutors have a set time that they have to file a “charging instrument” (called an indictment or an information). If the charging instrument is not filed within the statute of limitations, then prosecution is legally barred and you may purse an offense. Some serious felonies do not have a statute of limitations.

Should I worry about the statute of limitations?

A lawyer and a client should always consider the statute of limitations when deciding when (and if) an expunction has been filed. Filing an expunction where there was an arrest but no charging instrument can alert the prosecutors to the fact that they can still pursue a criminal charge. Because prosecutors deal with so many cases sometimes cases get lost in the shuffle and fall through the cracks. If an expunction is filed too soon it can tip the prosecutors off that they still have to file a charging instrument in a case. Check with your attorney to see if the time is right to file an expunction.

Can an offense involving minors and alcohol be expunged?

Some charges involving minors and alcohol can be expunged even if you are convicted of an offense. The Texas Alcoholic Beverage Code allows you to have one conviction erased from your record involving underage alcohol offenses once a person turns 21. You should still avoid an underage alcohol conviction as it will also trigger a driver’s license suspension. Additionally, when you file an expunction for this kind of offense based a conviction and the fact that the person is now 21, the expunction is filed in a municipal or justice of the peace court. A normal expunction is filed in district court which is two levels above a municipal or justice of the peace court. As you might imagine, a district court order to erase a record carries more weight than a justice of the peace or municipal court order.

What is the difference between criminal records and driving records?

You should note that there is a difference between a driving record and a criminal record. Anytime you are convicted of a traffic offense (like speeding or running a red light) the conviction is noted on both your driving record and criminal record. There are other offenses that can show up on your driving record. Unfortunately, an expunction will not erase your driving record. For example, if you were arrested for DWI you may have had a driver’s license suspension. If so, this is listed on your driving record as “ALR-Refusal” or “ALR-Failure.” ALR stands for “administrative license revocation.” The “refusal” or “failure” part refers to either refusing to give a breath sample or failing a breath test. Even if your DWI is dismissed and you’ve had it expunged from your record, you could still have the something noted on your driving record. The good news is that most employers or insurance companies only run a three or four-year driving record. For this reason, we advise clients not to (if possible) change or update their insurance.

How long does an expunction take?

How long does an expunction take?

How long does an expunction take?

An expunction from a person’s criminal record generally takes a few months to complete. This is because a proper expunction includes various identifying numbers from each law enforcement entity in the criminal justice system. For example, from just one arrest you will have a cause number, a booking number, an offense report number (and many others). When the expunction order is sent to each law enforcement agency it needs to have that agency’s unique number. If not, the agency will not honor the expunction. For this reason, it takes several open records requests to get each number and include in the expunction order. Open records requests can take a little while to complete (especially since we have to deal with the bureaucracy of governmental entities). The first step in expungement is to obtain all of the required documents to file with your application. Many of these documents can be obtained from the prosecutor’s office or from court records.

Do I have to be present at the court hearing?

Once the expunction petition and order are drafted the client will need to review it and make sure all the pertinent identifying information is correct. The expunction petition also contains an affidavit that needs to be signed by the client swearing that all of the information is true and correct to the best of the client’s knowledge. It will need to be signed in font of a notary. We have notaries available in our office but if you live in another location or out of state, you are welcome to sign the affidavit and mail it back to us. We’ve even seen affidavits signed by clients and notaries who live in other countries (we recently processed an expunction signed by a client who lived in Ireland and the notary stamp and signature was very ornate!). The affidavit can be sent back to us by mail or email (or text to 512-476-2494). Once the affidavit is returned, we can file the expunction and get a hearing date. The hearing date has to be set at least 30 days from the filing of the expunction. Depending on the county, the client may or may not be required to be at the expunction hearing (most counties do not require that the client be present). However, in some cases, a court hearing is required, after which a judge will decide whether to grant the expungement.

What is included in my criminal Record?

The best way to see what is on your criminal record in Texas is to get an official copy from the Texas Department of Public Safety. With the internet, there are a lot of ways a potential employer or the general public person can run a background check. Sometimes, an arrest will not appear on your official record but may still show if an open records request is done to the agency that arrested you. It may be worth hiring an attorney to do an open records request to see what is on your record. At the end of the day, the burden is on the client to inform the attorney where and when the arrest or investigation occurred.

How do I clean my record if the charge was not dismissed?

If your criminal charge was not dismissed, you may still be eligible for expungement or to seal your criminal record. An expunction allows you to legally deny that the charge ever occurred. Sealing your record means that only a governmental entity will have access to your criminal record. If you work in the private sector, sealing your record may give you the best chance of preventing an employer from learning about your criminal history.

Does my criminal record go away after seven years?

We often get clients who tell us that a charge happened more than seven (or ten) years ago. I’m not sure where this misinformation started; perhaps people think their criminal record is tied to a credit score or bankruptcy. Unfortunately, this is not the case. If you were arrested for a crime it never gets automatically dropped from your record. The charge is on your record until you go through the expunction process.

Who can see that my record has been expunged?

If done correctly, no one can see that your record has been expunged. There should be no evidence of the charge once it’s expunged. It’s worth noting that with the internet, it’s difficult to erase every single instance of the crime from the internet. This is especially true if you have a unique name. Having said that, it’s a crime to continue to disseminate information that you know has been expunged. Often if an arrest pops up on a site after it’s been expunged we can sent the website notice of the expunction with a demand letter that it be taken down or their will be criminal repercussions.

Will the FBI have access to my case after an expunction?

The answer to this question is that the FBI will likely have access to a criminal record indefinitely. When an expunction order is signed, it’s signed by a state judge. A state judge cannot tell a federal entity what to do. A state judge simply does not have jurisdiction to order a federal entity to do anything. This can be problematic when you are dealing with immigration issues that are maintained by a federal entity. While our expunction order often includes federal entities we always advise clients that there is no guarantee that a federal entity will comply with the state judge’s order. If your concern has to do with immigration issues you should consult with an immigration attorney.

We’re Here to Help

We are Austin criminal defense attorneys with extensive experience in legal representation. Our law office is here to help your friend or loved one. We hope you never need us, but we’re here if you do.

If you have any questions, our phones are answered 24 hours a day, 512-476-2494. Call us today for a free consultation or contact us today. We can help you get your loved one out of jail fast.

Free Consultations

We’re always happy to meet with clients for legal help about expungement and clearing criminal records. The first consultation is free. After that, we pride ourselves on communication. When you hire a criminal defense attorney at our firm you can be sure that the attorney will always answer phone calls and respond to emails. Having a criminal matter pending is a stressful time. Part of our job is to answer your questions and alleviate your stress.

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About Gunter, Bennett, and Anthes – Criminal Defense Lawyers

Here at Gunter, Bennett, and Anthes, we represent individuals and entities under investigation for or charged with all state and federal crimes including:

  • Alcohol-Related Offenses include Driving While Intoxicated (DWI arrest), Intoxication Assault, Intoxication Manslaughter
  • Legal Emergencies
  • Crimes of Violence including assault, battery, domestic violence, family violence, aggravated assault, and homicide
  • Sex Offenses including indecency with a Child, Sexual Assault, Possession of Child Pornography, Internet Sex Offenses
  • Property Crimes including small cases such as theft by check, shoplifting, or petty theft to complicated cases such as burglary, robbery, credit card fraud, computer theft, identify theft or other cybercrime
  • Drug Crimes including the smallest of drug charges such as possession of marijuana to serious felony drug cases like possession of a controlled substance with intent to distribute

With over 65 years of combined experience as criminal lawyers who practice law, we provide representation from the investigation stage through trial and, if necessary, appeal, and clearing criminal records. Our attorneys are on call 24 hours a day to help with any criminal law matter that may arise.

Austin Lawyer, Gunter, Bennett, and Anthes, Attorneys at Law, is a law firm that proudly practive law and serve the Austin TX metro area (and Central Texas) including Travis County, Round Rock, Cedar Park, Leander, Pflugerville, Georgetown, Westlake, Bee Cave, Lakeway, Lago Vista, and Spicewood.