Texas Record Sealing Advice

People often mistakenly believe that their records are automatically destroyed especially after certain dispositions in criminal cases. This is especially true when an individual successfully completes a term, commonly known as "Deferred Adjudication" supervision. It is also commonly a fallacy applied with certain Class C violations (whether they originate in a JP or muni court, or are reduced to a Class C from a higher degree offense.

There is a common mistaken belief that deferred adjudication records are automatically removed from a defendant’s criminal history upon successful completion of the probation (community supervision) period. In Texas, the law does not provide for automatic expunction of deferred adjudication criminal records, or for any criminal arrest records for that matter. The criminal records become part of the defendant’s “permanent record” and the arrest, court process, and probation can appear on a background check. Usually, this process occurs immediately when someone is arrested or cited for a criminal offense, often without the person's knowledge information is already starting to accumulate. Regardless of the disposition, even if the result is an acquittal ("Not Guilty") verdict - one MUST take proactive steps to also expunge/seal the records of the arrest - even if the disposition was one that resulted in a dismissal.

My goal as a criminal defense attorney, hopefully, is to put a person in the same position they were in before they came to see me for representation. That always cannot be achieved, but many times it can. There are various ways to get favorable dispositions in a variety of ways, obviously each depends in large part upon the facts of each case, which include such things as prior criminal history, what county the charge occurred in, what court it occurs, etc.

Regardless, whether it is an adult arrest, or if it is a juvenile matter, records of the arrest, and incident, are almost always automatically generated. One can do a simple search and insert their name into the county case search and see just about everything relevant about a case, including motions filed, court settings, and most important - the disposition of the proceeding.

Often people believe, especially if it deferred adjudication, that after successfully completing the term of supervision, all records pertaining to the arrest and court process immediately terminate. NOTHING CAN BE FURTHER FROM THE TRUTH.

Even if a disposition results in an acquittal ("Not Guilty") verdict, which is the ultimate result, or a dismissal (which is the next best thing), all records of what occurred still exist unless someone files an expunction. The process does not happen by itself, and is VERY intricate by nature. The process of any record sealing matter is civil in nature, and is entirely different than the criminal proceeding. In fact, it is often even given a different cause number with expunctions, and often handled in different courts than wherever the original court the charge was held (even though usually there are specific Assistant District Attorneys who exclusively handle these matters in most District Attorney Offices).
It is a complicated process, and if done incorrectly, it can actually bar someone from ever being able to file what they are entitled to ever again (whether it be an expunction/non-disclosure/applications to have juvenile records sealed). One has to have a pretty solid working knowledge of how all methods of record sealing work for it to be done correctly. Our office has done extensive research and study devoted hours of study devoted entirely to trying to perfect the best ways to word our Petitions and Orders, so they will have the effect desired. Even still, often it takes being very persistent with where it is filed to ensure the process is done correctly, and with completion. 

The laws are constantly changing in this regard, and at the time of the writing of this article, over 200 entities purchase criminal history arrest information from DPS. DPS is, more or less, the central database collection agency for how criminal history records are disseminated. 

In my opinion, because of the incredible ease now with which we can access information, this area of the law is far different than ever before. Why? Because at the simple click of a button - we can now find out whatever information we want on practically any given subject. Twenty years ago I don't think attorneys and their clients had this problem. 

If I am representing a client who will be eligible, either immediately, or at some point in the future, to file the appropriate paperwork to either a form of record sealing ((whether it be an expunction/non-disclosure/juvenile record sealing) – I usually tell people, “hopefully the next time I hear from you is when you are calling me to help me get this cleared from your record.” It is not that I don’t want to see them, or communicate with them in the meantime – it is just that I stress that I don’t want them to wait, or put it off until sometimes it is too late – to go through with the process.

Often even people with the knowledge above if they understand what I try to impart at the disposition of a case (I do try to stress to all those I represent to file as quickly as they are eligible). Individuals often wait before proceeding with filing whatever method is available to expunge, or seal, their arrest records. Often people wait until they have enough finances to finally decide to proceed (it should be noted there are filing fees associated with this process, in addition to the fee charged for legal services). 

Often people wait, however, until they are about to apply for a job, seek a promotion, rent an apartment, buy a house, etc. I am of the strong opinion one should begin the process as quickly as possible, which entails doing so well before the reality and anxiety sets in that someone may find their criminal record. Often if one waits to try and ensure that their prior criminal record is not seen by an entity, it can be too late. Why? Because the entire process, regardless of the method of which is entitled to pursue, can take months to see through completion. 

The process can take a lengthy period of time-based on a variety of factors. For starters, it takes a certain period of time to make sure our office has the correct information to list on the petition and order, we then have to file it with the correct location with jurisdiction and authority to grant it, the clerk's office usually then has a certain amount of time to set it for a hearing, and also inform whatever ADA is charge that it has been filed. The ADA then has time to review it, and a certain amount of time to notify the attorney who filed it whether they oppose or are unopposed to it. 

Assuming they are unopposed to it - the order then needs to be signed by a Judge with authority to do so, then it has to be taken to the Clerk's office with proper authority. The clerk's office should then process the paperwork, and diligently inform all relevant entities that the procedure has taken place. Many clerk's offices are inefficient, so it often takes persistent follow up to make sure they have done their job correctly. Even still, I usually send a copy of the signed order to our clients, list the relevant statutes for what their rights are now the procedure is complete, and suggest they keep a copy for future records (just in the event some stubborn entity keeps a record of the court proceeding).

If the DA does oppose the petition or application, an individual is entitled to a hearing on the matter. At this hearing, a Judge will then decide whether or not to grant the order to expunge or seal the records. If the Judge denies it, and it often can be for as simple of a reason that the petition was not done correctly and the language cited for why one is eligible is incorrect. If this occurs, because the proceeding is civil in nature, it would bar someone from EVER filing again. This is why it is so important to hire an attorney with a very sound working knowledge on how to do the process correctly the first time.

I cannot stress enough to those reading this to NOT wait until you need the record of the arrest expunged or sealed to finally file for it. Usually, if you wait until this occurs, it will be too late. I try to advise those I represent as if they were my son, daughter, sister, brother, father, mother, nephew, niece, etc. - in whatever scenario this would occur - I would HIGHLY suggest one to file whatever record sealing remedy is available IMMEDIATELY, and not wait until they think they will need it, because more often than not it would then be too late. If someone waits to try and file because they may be up for a job promotion sometime in the short-term future, and then decide to file for whatever for of record-sealing they are entitled to, it would undoubtedly be too late for them to achieve it for this purpose. Therefore, it is my strong advice to file immediately when you know you are eligible, and not wait until you think you might need it. If you do wait, more often than not - it will be too late for whatever purpose you are seeking it for. If the person had just filed when immediately able to, they could freely proceed in pursuing with whatever they are seeking in life without the anxiety of a criminal record appearing somewhere.