Expunction Eligibility

Whether you are eligible for an expunction depends on whether your case fits into one of the very specific circumstances described in Chapter 55 of the Texas Code of Criminal Procedure (“CCP”). I have listed each one of these circumstances of expunction eligibility below. If your case fits into one of these groups, then you are eligible for an expunction.

You will be either entitled to an expunction or only eligible for an expunction. The difference is that, if you are entitled to an expunction, then a judge must grant you and expunction (so long as you properly apply for it). If you are only eligible for an expunction, then the judge has some discretion and can possibly deny your petition. Chapter 55 of the CCP specifies whether you are entitled to or only eligible for an expunction. You are entitled to an expunction (meaning the court must order the expunction) under any of the circumstances described by CCP Section 55.01(a), and you are eligible for an expunction under any of the circumstances described by CCP Section 55.01(b).

It is important to also know that there are exceptions in the statute that prevent courts from granting expunctions in certain cases when someone would otherwise qualify for an expunction. If you are eligible for an expunction, but you fit into an exception, then your expunction may be denied. I have compiled below a comprehensive list of the categories for expunction eligibility, whether each one is an entitlement or only an eligibility, and each of the exceptions.

Texas CCP Section 55.01(a)(1)(A) provides that you are entitled to an expunction if you are tried and acquitted by the trial court.

Interestingly, under this eligibility scenario, the judge is not supposed to require a petition for expunction. Rather, either the prosecutor or your defense attorney is supposed to prepare an order granting expunction that the judge presiding over you case (or, if it’s a misdemeanor, that a district judge in the same county) is supposed to sign. The judge is supposed to sign this order within 30 days.

Texas Code of Criminal Procedure Section 55.01(a)(1)(B) says that you are entitled to an expunction if you are tried and convicted AND either ultimately pardoned according to 55.01(a)(1)(B)(i) or “otherwise granted relief on the basis of actual innocence with respect to that offense, if the applicable pardon or court order clearly indicates on its face that the pardon or order was granted or rendered on the basis of the person’s actual innocence” according to 55.01(a)(1)(B)(ii).

Similar to the situation in Acquittal Expunctions described above, a judge is supposed to sign an order granting an expunction 30 days after the pardon or finding described in this section. However, in this case, your trial attorney is not tasked with preparing the order granting expunction, and you have the responsibility of providing the necessary information to the district judge.

Texas Code of Criminal Procedure Section 55.01(b)(1) provides that you are eligible (not entitled) to an expunction of records related to a final conviction if an appellate court eventually overturned that conviction and acquitted the defendant.

The requirements for an expunction sooner than the expiration of the period of limitations as described in Texas Code of Criminal Procedure Section 55.01(a)(2)(A)(i) are:

• 1) the person has been released, AND
• 2) the charge, if any, has not resulted in a final conviction and is no longer pending AND
• 3) there was no court-ordered community supervision, unless the offense is a Class C misdemeanor AND
• 4) an indictment or information charging the individual with the commission of a misdemeanor offense based on the their arrest or charging the person with the commission of any felony offense arising out of the same transaction for which she was arrested has not been presented against the person at any time following the arrest, AND
• 5) the applicable time period, as described below, has elapsed.
• 
  

The statutory time periods are:

• 180 days from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a Class C misdemeanor and if there was no felony charge arising out of the same transaction for which the individual was arrested
• one year from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a Class B or A misdemeanor and if there was no felony charge arising out of the same transaction for which the individual was arrested
• three years from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a felony or if there was a felony charge arising out of the same transaction for which the individual was arrested

If you meet these applicable criteria, you are entitled to an expunction.

A more powerful version (see footnote 4) of an expunction not requiring the expiration of the statute of limitations requires the eligibility scenario described by Texas Code of Criminal Procedure Section 55.01(a)(2)(A)(i)(d):

• 1) the person has been released, AND
• 2) the charge, if any, has not resulted in a final conviction and is no longer pending AND
• 3) there was no court-ordered community supervision, unless the offense is a Class C misdemeanor AND
• 4) an indictment or information charging the individual with the commission of a misdemeanor offense based on the their arrest or charging the person with the commission of any felony offense arising out of the same transaction for which she was arrested has not been presented against the person at any time following the arrest, AND
• 5) the attorney representing the state certifies 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 individual.

The requirements for expunction entitlement under the category described in Texas Code of Criminal Procedure Section 55.01(a)(2)(A)(ii) are 1) the person has been released, 2) the charge, if any, has not resulted in a final conviction and is no longer pending, 3) there was no court-ordered community supervision, unless the offense is a Class C misdemeanor, and 4) any charge presented  was dismissed or quashed, and the court finds that the indictment or information was dismissed or quashed because the person completed a pretrial intervention program OR because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the individual committed the offense OR because the indictment or information was void.

The only requirements for expunction eligibility under the category described in Texas Code of Criminal Procedure Section 55.01(a)(2)(B) are that 1) you has been released, 2) the charge, if any, has not resulted in a final conviction and is no longer pending, 3) there was no court-ordered community supervision, unless the offense is a Class C misdemeanor, and 4) prosecution of the individual for the offense for which the person was arrested is no longer possible because the limitations period has expired. You are entitled to an expunction if you meet the criteria of this section.

This is one of the most powerful (see footnote 4) forms of expunction. Unfortunately, there are many offenses in Texas that have no statute of limitations, so many cases will never be eligible for expunction under this eligibility scenario.

Texas Code of Criminal Procedure Section 55.01(b)(2) provides an entirely separate road to eligibility for expunction that does not rely on any of the above requirements. The only eligibility requirements are that you have not been tried and a state prosecutor recommends expunction to a district court. You are eligible for (not entitled to) an expunction under this section.

This eligibility method is described in the statute as follows:

A district court may expunge all records and files relating to the arrest of a person who has been arrested for commission of a felony or misdemeanor under the procedure established under Article 55.02 if:
…
an office of the attorney representing the state authorized by law to prosecute the offense for which the person was arrested recommends the expunction to the appropriate district court before the person is tried for the offense, regardless of whether an indictment or information has been presented against the person in relation to the offense.

Note that under this category, you are eligible even if you have been charged or indicted.

If someone falsely used your name without your consent, you are entitled to an expunction under Texas Code of Criminal Procedure Section 55.01(d).

Texas Code of Criminal Procedure Section 55.01(a-1) provides that you are ineligible to expunge the record of an arrest that occurred as the result of a warrant issued out of a community supervision (probation) violation. One important note is that this exception is not limited in the language of the statute to any particular expunction eligibility category. So it would seem that these arrests would not be able to be expunged under any circumstances.

Texas Code of Criminal Procedure Section 55.01(a-2) exempts eligibility for expunction under “Subsection (a)(2)(A)(i)(a), (b), or (c) or Subsection (a)(2)(B)” any person who “intentionally or knowingly absconds from the jurisdiction” after being released on bond following an arrest.

Texas Code of Criminal Procedure Section 55.01(c) forbids courts from expunging the arrest of an individual who would otherwise be entitled to an expunction if the arrest was part of a “criminal episode.” The statute explains:

A court may not order the expunction of records and files relating to an arrest for an offense for which a person is subsequently acquitted, whether by the trial court, a court of appeals, or the court of criminal appeals, if the offense for which the individual was acquitted arose out of a criminal episode, as defined by Section 3.01, Penal Code, and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.