I receive a large volume of calls from citizens who want to “clean up” or “clear” their respective criminal records. Often it is a young person fresh out of college and entering the job market who now wants to get the DWI off his record that he managed to get after a couple of cold ones at the Dixie Chicken. Other times it is the older person wanting to become an EMT or nurse who wants that conviction for possessing a dimebag of grass off his record (after all, it was his buddy's marijuana anyway). Neither an expunction or nondisclosure will help either of these individuals. I just tell folks like this to call Governor Rick Perry and beg for a pardon.
The expunction of criminal records is an aspect of criminal law that most people do not understand. Many believe that if you accept deferred adjudication or a deferred disposition as it is sometimes called, your criminal record will not reflect that offense. That belief is only half right. If a person successfully completes a term of deferred adjudication or a deferred disposition, their criminal record will not show a final conviction for the offense or crime in question. However, your criminal record will still include the details of the arrest which can be as detrimental as the conviction information. A prospective employer will not be able to see the final disposition of the case but they will be able to see that the person was arrested for a certain criminal offense.
When can a person's record be expunged? Pursuant to Chapter 55 of the Texas Code of Criminal Procedure, any offense that results in an acquittal or dismissal can be expunged. Any case that results in any form of probation, including deferred adjudication or a final conviction cannot be expunged. Only the governor can clean up a criminal record containing a final conviction. However, as with most laws, there are some exceptions. For example, if a person receives a deferred disposition on a Class “C” misdemeanor, such as a traffic ticket, if that person successfully completes the term of the deferred disposition then the ticket is dismissed and the complaint may be expunged.
If a district judge signs an order for expungement all records and files contained by law enforcement agencies relating to the underlying case cannot be released, maintained, disseminated or used for any purpose. Further, a person arrested may deny the occurrence of the arrest and the existence of the expunction order, unless the person is being questioned under oath in a criminal proceeding about the arrest for which the records have been expunged. In that case he is only required to state that the matter has been expunged.
There is another device that can be utilized to help people clean-up their criminal records - deferred adjudication nondisclosure (Texas Government Code, Sec. 411.081). The difference between expunction and nondisclosure is that expunction, as noted above, prohibits any dissemination or use of the information relating to the offense to anyone while nondisclosure seals the information relating to the offense from the public and most, but not all, public sector employers. A nondisclosure order seals the information relating to the offense, however criminal justice agencies are able to disclose criminal history record information that is the subject of an order of nondisclosure to many noncriminal justice agencies or other entities outlined in the statute. Some examples of agencies that can gain criminal history record information are: the State Board for Educator Certification, school districts, the Texas State Board of Medical Examiners, Board of Law Examiners, State Bar of Texas and the Texas Department of Licensing and Regulation to name just a few. So, if your client has plans of becoming a nurse, accountant, school teacher, doctor or lawyer in Texas, then you must advise them that their criminal record will be not be sealed from view if a deferred adjudication nondisclosure is used.
In both cases, if granted by the Court, the person can deny the occurrence of the arrest and subsequent prosecution to which the information relates. A deferred adjudication nondisclosure can be obtained if the person has successfully completed the term of deferred adjudication probation, the applicable waiting period has expired and the person has not been convicted of or placed on deferred adjudication for a new crime during the interim. A person is not entitled to an order of nondisclosure if they have been previously convicted or placed on deferred adjudication for any of the following offenses : murder, capital murder, injury to a child, elderly, or disabled person, endangering a child, violation of a protective order, stalking or aggravated kidnaping, any offense involving family violence and any offense requiring them to register as sex offenders.
So, the next time one of your college friends calls to let you know that he has decided to be a high school football coach, you can advise him that his two DWI convictions and his possession of a controlled substance conviction cannot be expunged or nondisclosed and that he might want to consider another line of work.
Heath Poole is an associate with Hoelscher, Lipsey, Elmore & Benn, P.C. in College Station, Texas . His practice focuses primarily on criminal law and civil litigation.