Expunctions and Non-Disclosures

AuthorMark G. Daniel/Robert K. Gill
Chapter 22
Table of Contents
§22:10 Introduction
§22:20 Right to Expunction
§22:21 Persons Eligible for Expunction of Criminal Arrest Records
§22:21.1 Statutory Law
§22:21.2 School Truancy Cases
§22:21.3 Alcoholic Beverage Code Cases of Minors
§22:21.4 Requirement of “Arrest”
§22:21.5 Expunctions in Truancy Cases
§22:30 Expunction Following Acquittal or Pardon
§22:40 Expunction Following Dismissal
§22:41 Expunction Suppor ted
§22:42 Expunction Not Suppor ted
§22:43 Misdemeanors
§22:50 Expunction Following No Bill or Lack of Presentment of Charging Instrument
§22:60 Expunction of Records From Arrests and Offenses Which Were Plead in Bar Pursuant to §12.45
§22:70 [Reserved]
§22:80 Case Law Governing Expunction Procedure
§22:81 In General
§22:82 Venue
§22:83 Jurisdiction
§22:84 Representation
§22:90 Destruction and Return of Records Subject to Expunction Order
§22:100 Ef fect of Expunction Order
T C L’ H 22-2
§22:110 Violation of Valid Expunction Order
§22:120 Forms for Expunction of Arrest Records
§22:130 Non-Disclosure of Criminal History Information
§22:131 Appealing a Petition for Order of Nondisclosure
§22:140 Texas Department of Public Safety
22-3 E  N-D §22:21
§22:10 Introduction
As our society enters the new millennium with
its ever changing information age and expansion of
availability of information, there is a monumental
increase in the access the public has to criminal
history and arrest records. Unfortunately, for the
citizen who may be wrongfully accused, many
attorneys and the public are unaware of the avail-
ability and effects of the criminal record expunc-
tion process set forth in Chapter 55 of the Texas
Code of Criminal Procedure.
While prospective employers, landlords and
associates readily access criminal arrest infor-
mation about individuals, it is only through the
statutory scheme of expunction authorized by
Chapter 55 that an individual may have his or her
arrest record expunged and removed from public
An expunction order may be obtained by fil-
ing a petition alleging the necessary elements and
presenting proof of these elements at a hearing on
the petition. If an order of expunction is entered, all
records relating to the arrest will be either returned
to the court or destroyed, and the petitioner is then
permitted to deny that the arrest occurred. A person
who violates an expunction order and releases, uses
or disseminates the records and files subject to a
valid expunction order can face criminal prosecu-
tion for a class B misdemeanor offense.
Even though the expunction statute is found in
the Code of Criminal Procedure, an expunction
proceeding is civil rather than criminal in nature.
Kendall v. State, 997 S.W.2d 630 (Tex.App.—
Dallas 1998, pet. denied). Thus, the burden of proof
is on the petitioner. Kendall.
The petitioner is entitled to an expunction only
when all of the statutory conditions have been met.
Quertermous v. State, 52 S.W.3d 862 (Tex.App.—
Fort Worth 2001, no pet.).
§22:20 Right to Expunction
§22:21 Persons Eligible for
Expunction of Criminal Arrest
§22:21.1 Statutory Law
Tex. Code of Crim. Pro. Art. 55.01. Right
to Expunction
(a) A person who has been placed
under a custodial or noncustodial
arrest for commission of either a felony
or misdemeanor is entitled to have all
records and files relating to the arrest
expunged if:
(1) the person is tried for the
offense for which the person was
arrested and is:
(A) acquitted by the trial court,
except as provided by Subsection
(c); or
(B) convicted and subsequent-
(i) pardoned for a reason other than that
described by Subparagraph (ii); or
(ii) pardoned or otherwise granted relief
on the basis of actual innocence with
respect to that offense, if the applicable
pardon or court order clearly indicates
on its face that the pardon or order was
granted or rendered on the basis of the
person’s actual innocence; or
(2) the person has been released
and the charge, if any, has not
resulted in a final conviction and
is no longer pending and there was
no court-ordered community super-
vision under Chapter 42A for the
offense, unless the offense is a Class
C misdemeanor, provided that:
(A) regardless of whether any
statute of limitations exists for the
offense and whether any limita-
tions period for the offense has
expired, an indictment or infor-
mation charging the person with
the commission of a misdemean-
or offense based on the person’s
arrest or charging the person
with the commission of any felony
offense arising out of the same
transaction for which the person
was arrested:

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