Expunging Criminal Records in Texas

November 18, 2010 (Press-News.org) John Palazzolo, the former assistant principal at Arlington Heights High School in Fort Worth, Texas, found out the hard way how a person's past can catch up with them, especially if that past is a criminal one. The Fort Worth Independent School District voted to dismiss Palazzolo the last week of October for failing to disclose his criminal history when he applied for the Arlington Heights job in 2007. The crimes in question were misdemeanors: in 1997, Palazzolo pled guilty to failing to pay past-due child support, and in 1988 Palazzolo received a deferred sentence after pleading guilty to hiring an employee with a lapsed license.

Palazzolo contends that the employment application only required that he disclose felony convictions, not misdemeanors or deferred sentences. Palazzolo also argues that his failure to disclose the two misdemeanors is not the real reason he was fired, but rather that his employment was terminated because he blew the whistle on some illegal activities going on at the school. Palazzolo has filed a whistleblower lawsuit against the Forth Worth Independent School District.

Expunction and Non-Disclosure

The Palazzolo case brings up an important question that more than one person filling out a job or housing application has had to answer: have you ever been arrested or convicted of a crime?

In many cases, an answer in the affirmative may prevent you from getting the job you want. It has become common for potential employers and landlords to ask applicants about their criminal history. As a matter of course, they usually run criminal background checks on applicants, which can tell them whether or not someone has been honest about their past.

In Texas, all it takes is one arrest for you to have a criminal background. You do not have to convicted or even charged with the crime. The arrest alone is sufficient. And that one arrest can cause all kinds of problems in your life.

The good news is that, in some cases, you can have your criminal record erased, either through expunction or non-disclosure:
- Expunction allows eligible individuals to delete arrests from their criminal records permanently
- Non-disclosure orders allow individuals who successfully complete deferred adjudication to have the related criminal record sealed, making them inaccessible to the public

Expunction

Expunged records come with complete deniability (i.e., you do not have to include expunged arrests on job, housing or school applications). In order to be eligible to have an arrest expunged, one of the following conditions must be true:
- You were arrested for a crime, but never charged with it
- You were charged with a crime, but the charges were later dismissed
- You were acquitted of the crime
- You were pardoned of the crime, either by the Governor of Texas or the President of the United States
- You never committed the crime, but were the victim of identity theft

Expunction is not available if you were convicted of the crime, but received deferred adjudication or probation. Additionally, to qualify for expunction, you may not have been convicted of a felony within five years of the arrest you are trying to expunge.

Non-Disclosure Orders

Crimes subject to non-disclosure orders also come with deniability, although not to the same extent as expunged records. While expunged records are completely removed from your record, records subject to non-disclosure are not. Instead, they are merely hidden from public view. Government agencies and departments, including the police, can still access criminal records covered by non-disclosure orders.

In order to be eligible for a non-disclosure order, you must have successfully completed your deferred adjudication. Additionally, you must have received a discharge and dismissal of the deferred adjudication by the court.

Some crimes have a waiting period that must be fulfilled prior to filing for non-disclosure. Minor misdemeanors generally do not have a waiting period and a petition for the order can be filed as soon as the deferred judgment has been discharged and dismissed. More serious misdemeanors, like domestic violence and disorderly conduct, have a five-year waiting period. Felonies typically have a 10-year waiting period. However, some felonies are not eligible for non-disclosure orders. These include:
- Abandoning or endangering a child
- Aggravated kidnapping
- Family violence offenses
- Injuring a child, elderly or disabled person
- Murder, capital murder
- Sex offenses requiring sexual offender registration
- Stalking
- Violating a protective order
- Violating a magistrate's order

To be eligible for a non-disclosure order, you may not have been convicted or received a deferred adjudication for any crime during the waiting period, with the exception of certain traffic offenses.

Filing for an Expunction or Non-Disclosure Order

The process for expunging or sealing a record is pretty straight-forward. In either case, you must file a petition with the court requesting the expunction or non-disclosure order. For expunction, the petition may be filed with any district court. For non-disclosure orders, the petition must be filed with the same court that handled your deferred adjudication.

After the petition is filed, the court will hold a hearing. In cases of expunction, the court will notify any and all government agencies and departments that may have an interest in contesting the expunction, which may include the DA's office and the police station that arrested you. If the court decides to grant the expunction, then all government offices with a copy of the relevant criminal record are required to destroy it.

In cases of non-disclosure orders, the judge must determine that it is in the interests of justice to grant the order. If the judge grants the order, then government agencies and departments with a copy of the record are required to remove it from all public databases.

Contact an Experienced Criminal Defense Attorney

For more information on expunging or sealing a criminal or juvenile record, contact an experienced criminal defense attorney today. An arrest on your record can make your life very difficult, limiting your opportunities in employment, education, housing and even military enlistment. An attorney experienced in helping individuals file for expunction and non-disclosure orders can help you clean up your record and move forward with your life.

Article provided by Tad A. Nelson & Associates
Visit us at www.houstongalvestonlawyer.com