WHAT IF I ALREADY HAVE A CRIMINAL RECORD OR WILL HAVE ONE SOON?
Texas recognizes that while some people may have made mistakes, they may still be, or have since become a productive member of the community. Nevertheless, their criminal record often prevents them from serving in meaningful ways or securing certain valuable jobs. There are three ways to prevent disclosure of a prior conviction or even of an arrest if it resulted in a dismissal or a finding of "not guilty."
First, but most unlikely, is a "pardon" by the Governor or President of the United States. The White House actually has an attorney assigned just to review and recommend (or not) that the President pardon a rehabilitated former offender or a citizen who's conviction amounted to a gross miscarriage of justice. In Texas, the application process is handled by the Texas Board of Pardons and Parole. But regardless of the Board's recommendation, it is the Governor who has the last word.
The second remedy is called an "expunction" and deals almost exclusively with arrest records rather than records of conviction. This amounts to a civil lawsuit against every agency that has a record of the former offender's arrest. These agencies would include the county, city, state and numerous other law enforcement authorities. There are as many as seventeen (17) agencies in all. The number of agencies varies by county but each of them must be "served" with process. Furthermore, a hearing is required.
If the former offender's expunction suit is successful, the court signs an order that requires each of the agencies to return the hard copy of the record of arrest to the local clerk for destruction, to delete it from their database, and never disclose it to anyone. Even the order of expunction must be destroyed. In essence, it is as though the arrest never occurred and the arrested person may legally deny that he was arrested.
Similar to the White House, the Attorney General of the State of Texas has assigned an attorney to review and litigate expunction suits. If he can be convinced that justice will be served by an expunction, the process becomes much simpler. Regardless, several years ago the Texas legislature severely limited the types of arrests which might be expunged by a court. With the exception of certain low level misdemeanors resolved by deferred adjudication, the case resulting from the arrest must have been dismissed for lack of probable cause, or have been rejected by a grand jury (a "no bill" or "no indictment"), or have resulted in an acquittal, i.e., a verdict of "not guilty." Once again, with the exception of certain low level misdemeanors resolved by deferred adjudication, convictions are not expunged. The expunction process is intended for records of arrests which did not result in a conviction as a result of one of the three factors described above, i.e., not guilty, no indictment, or no probable cause.
Now as a result of so many lives being ruined by a relatively minor conviction or one which was obtained at a tender age, the Texas legislature has recently passed a bill which allows a court to sign an "Order of Non-Disclosure." To obtain such an order, an attorney applies on behalf of the former offender to the court by way of a "Motion for an Order of Non-Disclosure" and provides all of the reasons he or she believes that the conviction or arrest should not be disclosed to anyone other than governmental agencies. The motion should include factors that have caused, or will cause the former offender to lose employment opportunities or to be eliminated from certain educational or other opportunities. The motion should also include affidavits or letters from supporters in the community who respect the former offender and believe that he will not again violate the law. While easier to obtain than an expunction, an order of non-disclosure only orders that no government agency may disclose the arrest or conviction to members of the public such as private investigators or employers doing background checks. The order does not prevent transmission of the fact of the arrest or conviction within the government. Thus, if a former offender applies for a state license, such as a concealed handgun permit or a government job or professional license, the conviction or arrest will be disclosed and may prove to be an impediment. But be aware that the Texas Government Code has limited the types of crimes or charges for which an order of non-disclosure may be granted.
Our office will be happy to discuss whether any of the three remedies described above might be available to you. And of course we will assist you diligently in pursuing any remedy should you decide to seek such relief.
