Find Out If You Are Eligible To Get An Expunction For An Offense that Was Not a Class C Misdemeanor (Also Known As An Expungement). Art. 55.01

By | July 6, 2019

Ask yourself these questions to see if you are eligible to have your arrest records and other records expunged. Sometimes, if you answer one way, I’ll say “stop reading here.” That means you’ve run up against a hurdle that you can’t get over; it means you can’t get an expunction. Sometimes I’ll say “read on.” That means you might be eligible for an expunction and to keep reading to see if you are.

Below are some questions with checkboxes next to them. You don’t have to be able to check off every single checkbox. Some checkboxes you absolutely must check off or you can’t get an expunction. As we go through this, I’ll let you know which checkboxes must be checked off.

Were you arrested?

It might sound like a silly question, but it isn’t.  To get an expunction, you must have been arrested.  If you were investigated, but not arrested, you can’t get the records of the investigation expunged. Stop reading about expunctions now.

But if you were arrested (either taken to jail, given a “cite and release” form, or written a ticket), then read on.

If you can’t check off this checkbox, then you can’t get an expunction.

Were you found “Not Guilty”?

Were you tried for the offense for which you were arrested and found “not guilty” by the trial court?  If you were, and the offense for which you were acquitted did not arise out of a criminal episode for which you were convicted, or for which you remain subject to prosecution, then you can get an expunction.

If you weren’t found “not guilty”, don’t give up hope. You don’t have to check off this checkbox. Read on.

Were you pardoned? 

If you are convicted and subsequently pardoned, you may be eligible for an expungement.

If you were pardoned or otherwise granted relief on the basis of actual innocence with respect to the offense for which you were convicted, if the applicable pardon or court order clearly indicates that the pardon or order was granted or rendered on the basis of your actual innocence, then you can get your expungement on the basis of that pardon or court order.

If you weren’t pardoned, hang in there. You don’t have to check off this checkbox. Read on.

Was your case dismissed?

If you have been released and the charge has not resulted in a final conviction and is no longer pending and there was no court-ordered community supervision, you may be eligible for expungement. This “dismissal” expungement may be available to you, provided that a certain time period has passed. To find out what time period has to pass, read on.

If your case wasn’t dismissed, keep charging forward. You don’t have to check off this checkbox. Read on. 

Were criminal charges never presented against you?

If (1) you have been released; and (2) no conviction resulted from the arrest (unless the charge was a Class C Misdemeanor); and (3) no charge was presented against you at any time following the arrest for a misdemeanor a felony arising out of the same transaction for which you were arrested, then you’ll need a lawyer to check to see if the attorney representing the State will certify that the applicable arrest records and files are not needed for use in any criminal investigation or prosecution, including an investigation or prosecution of another person.

If criminal charges were presented against you, don’t give up. You don’t have to check off this checkbox. Keep reading.

Were criminal charges presented against you, and then dismissed or quashed?

If an indictment or information was presented against you at any time following the arrest, and was dismissed or quashed, then under certain circumstances you can get an expungement.

The first circumstance is if you completed a veterans treatment court program.

The second circumstance is if you completed a pretrial intervention program other than a veterans treatment court program.

The third circumstance is if the indictment or information was presented because of mistake, false information, or other similar reason indicating an absence of probable cause at the time of the dismissal to believe that you committed the offense.

The fourth circumstance is that the indictment or information was void.

If your case doesn’t fall in the above four circumstances, hang tough. You don’t have to check off this checkbox. Read on.

Did the statute of limitations expire?

If the prosecution for the offense for which you were arrested is no longer possible because the limitations period has expired, then you can get an expungement.

To calculate whether the statute of limitations has passed, remember that the time during which the accused is absent from the state and the time period during which the indictment or information was pending shall not be computed in the period of limitation.

If the statute of limitations didn’t expire, don’t give up hope. You don’t have to check off this checkbox. Keep reading.

 

Were you acquitted by the Court of Criminal Appeals or by a Court of Appeals?

If you were (A) tried for the offense for which you are arrested; (B) convicted of the offense; and (C) acquitted by the Court of Criminal Appeals or, if the period for granting a petition for discretionary review has expired, by a Court of Appeals, then you can get all of your records and files relating to your arrest expunged.

There is an exception. Namely, even if you were acquitted by the trial court, a court of appeals, or the court of criminal appeals, if the offense for which you were acquitted arose out of a criminal episode and you were convicted for at least one other offense occurring the criminal episode, or you remain subject to prosecution for at least one other offense occurring the criminal episode, then you can’t get an expunction.

If you weren’t acquitted by either the Court of Criminal Appeals or by a Court of Appeals, don’t give up hope. You don’t have to check off this checkbox. Keep reading.

 

Were you arrested because of inaccurate identifying information because of a clerical error?

You are entitled to obtain the expungement of any information that identifies you, including your name, address, date of birth, driver’s license number, and Social Security number contained in records and files relating to your arrest or the arrest of another person if the expungement of identifying information is sought with respect to your arrest if you were arrested only as a result of identifying information that was inaccurate due to a clerical error.

If your arrest wasn’t described by this question, hang in there. You don’t have to check off this checkbox. Keep reading.

Do you need an expungement because someone else was arrested, but gave your name and identifying information?

You are entitled to obtain the expungement of identifying information sought with respect to the arrest of a person other than you if the information identifying you was falsely given by the person who was really arrested without your consent and the only reason why the identifying information of you is contained in the arrest records and files is because of the deception of the arrested person.

Do you want to expunge records of a close relative?

First, let’s settle whether you are a “close relative of a deceased person.” You are a close relative of a deceased person if you are the grandparent, parent, spouse, or adult brother, sister, or child of a deceased person.

A close relative of a deceased person who, if still alive, would be entitled to expungement of records and files may file on behalf of the deceased person a petition for an expungement.

You Can Get an Art. 55.01 Expunction If…

You have to have checked off at least two of the boxes above, and one of them has to be in answer to “were you arrested?”

AND

You don’t check off any of the boxes below.

Were you arrested on a probation warrant?

If the answer is “yes,” then you may not get records and files relating to the arrest on a probation warrant expunged.

If you checked off the box because you were arrested on a probation warrant, then I’m sorry to say, you can’t get an expunction of those records and files. Stop reading.

Were you arrested after leaving the jurisdiction and not returning to court?

If you were, you can’t get arrest records related to that arrest expunged based on the expiration of the statute of limitations. If those are the arrest records you want expunged, you’ll need one of the following: (1) a recommendation from the prosecutor (if an indictment or information was presented against you), (2) a certification from the prosecutor that the applicable arrest records are not needed for use in any criminal investigation or prosecution, including an investigation or prosecution of another person (if an indictment or information was not presented against you), (3) completion of your case through a veterans treatment program or pretrial diversion program, (4) a finding that the indictment or information was presented because of mistake, false information, or other similar reason indicating an absence of probable cause at the time of the dismissal to believe that you committed the offense, or (5) a finding that the indictment or information was void.

If you were arrested after leaving the jurisdiction and not returning to court, then you can’t get an expungement unless one of the four conditions mentioned above is met.

Take our Expunction Eligibility Quiz