Expunction in Texas
An expunction destroys the record. Not the conviction record; the arrest record. Every agency that holds it — DPS, the county clerk, the arresting agency, the FBI — must destroy it. After an expunction, you can deny the arrest happened. On a job application, under oath, to a licensing board.
The record is gone.
Who qualifies
Texas expunction eligibility is specific. You may qualify if:
- You were acquitted at trial.
- The charge was dismissed.
- A grand jury no-billed the case.
- You were arrested but never charged, and the applicable waiting period has passed.
- You completed a pretrial diversion program.
- You were pardoned.
Waiting periods depend on the class of offense: 180 days for a Class C misdemeanor, one year for a Class A or B misdemeanor, three years for a felony, measured from the date of arrest.
Who does not qualify
Expunction is not available after a conviction. If you pleaded guilty and received a sentence, even probation, the record cannot be expunged.
Deferred adjudication is more complicated. Successful completion of deferred adjudication results in a dismissal, but whether that dismissal qualifies for expunction depends on the circumstances. The alternative for most deferred adjudication cases is an order of nondisclosure.
What expunction does not reach
An expunction order binds government agencies. It does not reach private databases. If your arrest appeared in a newspaper or on a mugshot website before the expunction was granted, the order does not force those private entities to remove it.
Expunction is a lawsuit
An expunction is a civil proceeding filed in the district court of the county where the arrest occurred. The petition names the agencies that hold records as respondents. The government can oppose it if it believes the applicant does not meet the statutory requirements. The court holds a hearing and decides.
We don’t just practice this law, we make it
In Ex parte E.H., 602 S.W.3d 486 (Tex. 2020), the Texas Department of Public Safety argued that a man who had served five years of deferred adjudication community supervision could not get an expunction, even though the statute he was convicted under had been declared unconstitutional. DPS’s position: as a matter of historical fact, “there was court-ordered community supervision.” The statute requires showing there was none.
The Supreme Court of Texas disagreed, 8–1. Justice Boyd, writing for the court, held that the phrase “court-ordered” incorporates legal realities, not just historical ones. An unconstitutional statute is void from its inception, “as if it had never been.” No valid statute meant no valid offense. No valid offense meant no valid court order. No valid court order meant no court-ordered community supervision. E.H. qualified for expunction.
The statute the court declared unconstitutional in that chain was former section 33.021(b) of the Penal Code. The case that declared it unconstitutional was Ex parte Lo, which we argued and won at the Court of Criminal Appeals. One win made the other possible.
Open questions
Expunction law has unresolved issues. The statute requires agencies to destroy records and files “relating to the arrest.” The State reads that phrase narrowly. When an arrest triggers other proceedings (a protective-order hearing, for example), the State takes the position that those proceedings are not subject to expunction.
The statute does not say that. It says “relating to the arrest.” A protective order that exists only because the arrest happened relates to the arrest. At some point someone will have to fight this on appeal. Odds are it will be us.
Talk to us
713-224-1747.