An expunction is an order from a district court judge that is directed to every public official that has information about someone's arrest and criminal charge. The order requires that official to either delete all records of an offense from computer databases and/or send all paper records to the court, where they're either destroyed or retrieved by the person who was arrested. Once a matter has been expunged, the person has the right to deny that he was ever arrested or charged. It is also a criminal offense for a public official to knowingly use expunged records. One can even deny the charge under oath once it's been expunged. The only exception is if he is under oath and testifying in a criminal proceeding, and even then he doesn't have to answer anything other than that the matter has been expunged. Rarely would such a circumstance arise, because, prior to that person testifying his lawyer would likely bring the expunction to the prosecutor's and judge's attention. Once they know that the matter was expunged, they would be committing criminal offenses to even try to talk about the matter in court.
An expunction is essentially the Holy Grail of criminal defense. We are ultimately striving for a resolution that allows the client to obtain an expunction and get rid of all evidence of the allegation.
There are generally three common resolutions to a criminal charge that will put the accused in the position to be able to have the matter expunged:
- Acquittal. IF you go to trial, whether a judge or jury trial and are found not guilty, then you are entitled to have the charge expunged from your record. The only exception is where you were convicted of an offense that arose out of the same transaction or where that matter is still pending. For example, you get arrested for possession of marijuana and DWI. At trial, you're acquitted of the DWI and convicted of the possession of marijuana. You would not be able to have either charge expunged.
- Dismissal. If you were arrested for an offense and the charge is later dismissed or if formal charges were never filed, then you are entitled to an expunction once the statute of limitations has run. The statute of limitations for misdemeanors is two years. Many felony charges have much longer limitations, but the default is three years. Depending on why your charge was dismissed, however, you may not have to wait for the limitations period to run. For example, if you charge was dismissed and there was never any probably cause to arrest you in the first place, then you do not have to wait. Generally speaking, if your charge was dismissed in a manner that precludes further prosecution, then you do not have to wait to have it expunged.
- Deferred adjudication for a class-c misdemeanor. This one is one of my favorites and it's one that, amazingly, many of my colleagues don't know about. I've had many clients argue with me about it because they've consulted with other lawyers that have misinformed them. If you are arrested for a charge and it gets reduced to a class-c misdemeanor and you get deferred adjudication, then you will be able to have that charge expunged, no different than if it was dismissed outright.
- Pre-trial Diversion. Pre-trial diversion is an option that has only become available rather recently. A pre-trial diversion agreement is done outside of court and through the DA's office. It's like being on probation, but, because no plea is ever entered in court and no court-ordered supervision takes place, the law allows for the expunction of the offense immediately upon successfully completing the pre-trial diversion program.
- Pardon. If you've been pardoned for a particular offense by the governor of Texas, then you may have that charges expunged.