Am I Eligible for an Expunction?

Harris & Harris Law Group, PLLC

We often get calls from people wanting to get an expunction for some prior criminal offense for which they were arrested. Expunctions are a way to clear someone’s record - but there are limitations to when an expunction is possible.

Sometimes, people can have confusion as to what situations qualify for expunctions. Some people mistakenly believe that if they were arrested and convicted of an offense, once their sentence is completed, they can file for an expunction. Some people mistakenly believe that if they completed deferred probation, they are entitled to an expunction. Here, we hope to provide a barebones understanding of when it is appropriate to file for an expunction.

Expunctions in Texas are governed by Chapter 55 of the Texas Code of Criminal Procedure. A person has a right to an expunction if they were placed under arrest for a felony or misdemeanor if: The person was tried for the arrested offense and is acquitted (found Not Guilty) or convicted and subsequently pardoned.The person was released of the charge, if any, and did not result in a final conviction and is no longer pending, and there was no court-ordered community supervision for the offense unless the offense is a Class C misdemeanor.

The basic summary from above is that a person is entitled to an expunction if they are found not guilty for an offense they were arrested for, or if the charges they were arrested for were dismissed. A person CANNOT get an expunction if they were placed on probation for an offense (even if the probation was a deferred adjudication and did not lead to conviction). The one exception to this is if a person was arrested for a Class C misdemeanor (ticket) and successfully completed deferred adjudication.

What’s the Time Period to File an Expunction?

Some people wonder if they can file for an expunction as soon as their case is resolved. In most situations, you cannot. The general rule is that you have to wait until the statute of limitations runs for the offense for which you are charged.

“Statute of limitations” refers to the designated time period that law enforcement has to bring a charge against someone before they are barred from ever bringing them. These time limits are mostly spelled out in Chapter 12 of the Code of Criminal Procedure. As a general rule, most misdemeanors have a 2-year statute of limitations. Felonies are different. They vary based off of the nature of the offense. Most offenses are 3 or 5 years, but offenses such as murder and sexual assault have no statute of limitations. In situations where an offense has no limitations, the district attorney’s office will sometimes agree to an expunction if they find it is in the best interest of justice. If the district attorney’s office doesn’t agree to an expunction, there would be a hearing, and a judge would decide whether to grant the expunction or not.

If an indictment or information has not been presented against the person following an arrest, an expunction can be filed if at least 180 days have elapsed from the date of the arrest if offense is a Class C misdemeanor, at least one year has elapsed from the date of the arrest if offense is a Class A or B misdemeanor, and at least 3 years have elapsed from the date of arrest if offense is a felony.

When can an Expunction be Filed Immediately?

There are two situations when an expunction can be filed immediately. The first situation is if a person is acquitted for the offense for which they were arrested. “Acquittal” means they were found not guilty by a judge or jury. Once found not guilty, they are immediately eligible for expunction. Second, certain pretrial diversion programs make an individual eligible for immediate expunction upon successful completion. Some examples of pretrial diversion programs in Dallas County are Veterans Court, AIM program, and DIVERT court, among others.

Contact Harris & Harris Law Group, PLLC today so that we can help you clear your record.