Expunctions and Non-Disclosures

• Author: Mark G. Daniel/Robert K. Gill
• Pages: 583-624

22-1

EXPUNCTIONS AND

NON-DISCLOSURES

Chapter 22

EXPUNCTIONS AND

NONDISCLOSURES

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

EXPUNCTIONS AND

NON-DISCLOSURES

§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

EXPUNCTIONS AND

NON-DISCLOSURES

§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

availability.

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

Records

§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-

ly:

(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: