Interviewer: What is an expunction?
Gary Churak: An expunction is basically a court order that is obtained to order law enforcement agencies, courts, district attorneys, county attorneys, government agencies that record criminal background information, and criminal background companies to delete any reference of an arrest and a case from their files. It basically seals the criminal case. In modern terms, it’s a digital lobotomy of the client’s criminal history.
Expunction Eligibility in Texas
Interviewer: How do I know if I qualify for an expunction?
Gary Churak: Under Texas law, an expunction is under Chapter 55 of the Texas Code of Criminal Procedure. There are three ways you can get an expunction in Texas. The first case is that you were found not guilty by a jury. If you’re found not guilty by a jury, it automatically entitles you to qualify for an expunction. You still have to file it. You still have to go do the paperwork and everything. It’s not automatic, but it does qualify you for an expunction. The second type of expunction is if your case is dismissed outright, basically because of insufficient evidence or a witness not showing up or lack of evidence or probable cause. If the state dismisses your case, that would entitle you to file for an expunction of the arrest and the case.
The third type is if it’s a Class C misdemeanor, which you received deferred adjudication on. For instance, say you get pulled over for driving and you’re a minor and a you had a beer. They hit you for DUI (driving under the influence). Not a DWI, but a DUI, which is basically a minor with any kind of alcohol in his system. That’s a Class C misdemeanor. If you get a good attorney, the attorney will go in there and get you deferred adjudication probation. You’ll complete the probation, the case will be dismissed, and you can file an expunction of that particular case. Those are the three types of situations where you can get an expunction: not guilty, case dismissed, or deferred adjudication of a Class C misdemeanor.
Interviewer: Once my case has been expunged, will I be able to say that I’ve never been convicted for that particular crime?
Gary Churak: Well, no. Actually, under Texas law, if you are subject to an order of expunction, you can legitimately answer a question no that you’ve ever been arrested. They can never hold that against you. In fact, there are some criminal statutes that actually make it a crime to use against you a case that’s subject to an expunction – in other words, if they ever ask in an employment application if you’ve ever been arrested, you can legitimately answer “no” if your case has been subject to an expunction. I think you used a misnomer there. You can never expunge a case that you’ve been convicted on. Convicted means you’ve been found guilty and adjudicated. That doesn’t qualify you for an expunction, but if you’ve been arrested and you get an expunction, you can say, “No, I’ve never been arrested.”