Discretionary Expunction in Texas: 55.01(b)(2)
An “expunction” theoretically erases all records relating to a criminal proceeding. For years, expunction was available in Texas only when the proceeding ended with acquittal, pardon, dismissal, or the like.
Recently, the Texas Legislature has authorized expunctions in some cases that end with conviction or deferred adjudication. This type of expunction is discretionary with the Court. In other words, the Court may grant an expunction but the Court may also refuse to grant an expunction.
Many factors likely will influence the Court including the type of crime, whether the crime is an isolated aberration or part of a life pattern, and generally whether the person “deserves” a fresh start.
The Court by the literal wording of the statute can only grant a discretionary expunction if the prosecutor recommends this. Thus, you must persuade both the Court and the prosecutor.
The largest potential problem is that the prosecutor’s recommendation apparently must be made “before the person is tried for the offense.” Thus, if you have already been convicted, it may be too late. Apparently, the legislature was envisioning the recommendation as part of a plea.
If you have already been convicted, you should definitely not focus on the timing of the prosecutor’s recommendation. It would seem a person who was convicted in the past and has behaved well since should have a stronger argument for expunction than a person in the course of a plea deal.
If your case ended in deferred adjudication in the past, your argument is that your case was never “tried.” The trial was “deferred” and never happened (assuming your probation was never revoked).
The bottom line is that in some instances the Judge can but is not required to grant you an expunction even though a conviction or deferred adjudication exists. There are some legal hurdles in some cases. Ultimately, an expunction requires persuading the Judge and prosecutor you deserve a fresh start.
This means you need to present yourself in the best light. True persuasion usually is advisable not just submission of forms. You may need to “dance” through some legal hurdles. Although success is not a sure thing, you may want to try in view of the immense benefits you may receive.
The decision on whether you should try depends on all the facts and circumstances relating to the crime and really your entire life. Of course, if you are a repeat offender with serious crimes on your record, expunction is unlikely. If you have a good record as a law abiding citizen and your crime was not particularly serious or some extenuating circumstances exist, you have a good chance.
As with many things in the law, what happens will depend in large part on the personalities, attitudes, and policies of the people involved particularly the judge and the prosecutor.
For more information, see Texas Code of Criminal Procedure Chapter 55 specifically 55.01(b)(2).
You may want to ask for a “Non-Disclosure Order” in the alternative. In other words, ask the Court to grant you a Non-Disclosure Order, if it refuses you an expunction. A Non-Disclosure Order is like an expunction but not as good. It “erases” the criminal proceeding like an expunction but it has important exceptions such as police, licensing agencies, schools, etc.