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Expunction and Sealing of Arrest Records

Many people in Fort Worth who have been arrested are eligible to have their adult arrests records sealed or expunged. Adult arrests records that did not result in a final conviction can usually be expunged. Adult deferred adjudications can usually be sealed. Most juvenile records can be sealed. Failing to do so can have bad results because the social and political trend in society today is to find and adopt new ways to identify, label, exclude, and deprive life and liberty to those it deems to be "criminals." Today there is a whole industry devoted to developing creative ways to obtain and sell private or derogatory information about individuals. And there are plenty of buyers such as insurance companies, banks and credit lenders, potential employers, landlords, etc. There are plenty in the business of buying and selling our business. Many are affiliated in one way or another to the government, who now has powerful computers with very casual and loose oversight and sharing agreements for the information they contain. A criminal record these days is proving to be a nightmare for many people who never thought it would. The way to avoid this is to hire an attorney in Fort Worth who is savvy about the ways these records are kept and the ways to control the future retention and disclosure of this information. Under Texas law, whether an arrest record can be expunged or sealed depends on a variety of circumstances. Expunging an arrest record means the removal and destruction of all law enforcement files concerning an arrest, and the obliteration of all references to the arrest in all searchable local, state, and national law enforcement data bases. Sealing arrest records allows the police to keep the record; however, the arrest record becomes protected by an "Order of Nondisclosure" issued by a court, and is not disclosed to anyone except under very limited circumstances. Many people who have juvenile arrests records think their records are "confidential" and therefore, nobody can see them so there is no need to have them sealed or destroyed. It is true juvenile arrest records are not a "public record' per se. However, the public at large are about the only ones excluded from these records. In 1995 the Texas Legislature changed many of the confidentiality laws concerning juvenile arrest records. The consequences of having a juvenile arrest record are much more serious than they were under the old law. They are now entered in local, state and national government databases to be viewed by police, prosecutors, and government investigators many years later. Leaving an old juvenile arrest record unsealed or unexpunged can especially come back to haunt an adult applying for a job where a government background check or security clearance is required; or if they are facing new adult charges when it comes to an enhanced punishment or reasonable plea negotiations with a prosecutor. Any person who has any kind of law enforcement arrest records in Fort Worth or Tarrant County should have them sealed or expunged as soon as possible if they are lawfully able to do so, regardless of whether they are adult or juvenile arrest records. Sealing or expunging arrest records requires very technical pleadings and notices sent to a variety of law enforcement entities. It also requires at least one court hearing. Often these actions are opposed by the attorneys for the government. Someone seeking to have an arrest record sealed or expunged in Fort Worth or Tarrant County would be wise to employ an attorney with knowledge and experience in these matters. Before contacting an attorney, they should determine where they were arrested; where they went to court (which court specifically); and what happened to their case. Except for alcohol related offenses most adult arrests that resulted in a conviction cannot be sealed or expunged. Adult arrests records that did not result in a final conviction can usually be expunged. Adult deferred adjudications can be sealed. Most juvenile records can be sealed.

SEALING AND DESTROYING JUVENILE RECORDS:

The procedures and requirements for sealing and destroying juvenile arrest records differ slightly from adult records. The outright destruction of Juvenile Arrest Records generally requires they be sealed first for a period of years. A juvenile record can usually be sealed if the person is now 21 years of age or older. Sealing a juvenile record is never permitted where the juvenile received a determinate sentence. Determinate sentences are serious cases where the juvenile continued to be incarcerated or punished after they became an adult. Also, juvenile records cannot be sealed if the juvenile was certified to stand trial as an adult. Also, a juvenile record cannot be sealed if the adjudication was later used to enhance the punishment for a subsequent prosecution in adult court. Nor can a juvenile record be sealed if the person has been convicted of a felony since becoming the age of 17. The sealing of a juvenile felony record is discretionary with the court. In other words, the court "may" seal the record. Generally they will if it can be shown that the juvenile record was more the product of youthful frolic or stupidity rather than a budding adult criminality. There are some juvenile records that can be sealed as a matter of right, meaning if asked, the court must seal them. Someone has the right to have juvenile record sealed if their adjudication was not a felony, or their case was disposed of without adjudication (deferred or diversion program), and two years have passed since the case was fully disposed of. They also have the absolute right to have a record sealed if they were found not guilty at trial. Also juveniles adjudicated for sex offenses can often avoid the sex offender registration requirements that their adult counterparts cannot. There are also provisions in the law that allow for the expunction of a juvenile arrest record in Municipal and Justice courts for violations of the Alcoholic Beverage Code. (Minor in Possession, Minor in Consumption, DWI-Minor, etc.) Someone seeking to have an arrest record sealed or expunged in Fort Worth or Tarrant County would be wise to employ an attorney with knowledge and experience in these matters.

SEALING AND DESTROYING ADULT ARREST RECORDS:

Many adult arrest records can be expunged (destroyed) as a matter of right in Texas. Any person who has been arrested has the absolute right to have the record destroyed if they were never prosecuted as a result of the arrest; the charges were dismissed; they were pardoned; or if they were found not guilty by a judge or jury. The arrest cannot be expunged if they were convicted of another or lesser charge. Nor can the record be expunged if they accepted a deferred adjudication, however many deferred adjudications can be sealed as discussed below. The expunction statutes requiring arrest record destruction are basically reserved to cure some mistake or other injustice so someone is not publicly stigmatized for life for something the state clearly could not prove they did, or their conduct was pardonable. There are also some laws providing for expunctions of violations of the "under 21" laws found in the Alcoholic Beverage Code. In general, under current law, adult offenses that resulted in a final conviction are in the record to stay. However, there is good news for those with a deferred adjudication on their record. In 2003, the Texas legislature passed some new laws for deferred adjudications allowing for courts to enter "Orders of Nondisclosure." An Order of Nondisclosure can effectively seal many ancient adult deferred adjudication records from public viewing. With this, the only way someone except prosecutors and law enforcement can see a sealed record or know that it exists, is to petition the court and demonstrate a legitimate need to see it. Many felony deferred adjudications can be sealed. However, not all adult arrest records can be sealed. An adult is not entitled to an Order of Nondisclosure for records where they were placed on deferred adjudication for any of the following:

1. Any offense requiring registration as a sex offender;
2. Murder, Capital Murder, Injury to a child, elderly, or disabled person; endangering a child, violation of a protective order, stalking or aggravated kidnapping; or
3. Any other offense involving family violence.

Also, arrests for any offenses above a Class C misdemeanor which resulted in a final conviction cannot be sealed. There must have been a Deferred Adjudication. There is also a waiting period of 5 years from the completion and discharge of the Deferred Adjudication for many misdemeanors, and 10 years for all felonies. During these waiting periods the person cannot have been convicted for anything higher than a Class C misdemeanor or they will be ineligible. Subsequent successfully completed Deferred Adjudication(s) will not render them ineligible, but a conviction will. Someone seeking to have an arrest record sealed or expunged in Fort Worth or Tarrant County would be wise to employ a lawyer with knowledge and experience in these matters.

Most misdemeanors resulting in a deferred adjudication can be sealed once the terms have been completed. Those misdemeanors requiring a 5 year waiting period are:

1. Unlawful Restraint;*
2. Homosexual conduct; (Texas law now declared unconstitutional by the Supreme Court, but there are still some old arrests records out there.)
3. Public Lewdness;
4. Indecent Exposure;
5. Assault;*
6. Deadly Conduct;*
7. Terrorist Threat;*
8. Leaving a Child in Vehicle;
9. Aiding a Suicide;*
10. Bigamy;
11. Enticing a Child;*
12. Harboring a Runaway Child;
13. Advertising Placement of a Child;
14. Disorderly Conduct;
15. Riot;
16. Obstructing a Highway;
17. Disrupting a Meeting or Procession;
18. False Alarm or Report;*
19. Silent or Abusive Calls to 9-1-1;
20. Interference with an Emergency Telephone Call;
21. Harassment;
22. Abuse of a Corpse;
23. Cruelty to Animals;*
24. Dog Fighting;*
25. Destruction of a Flag;
26. Discharge Firearms in Certain Municipalities;
27. Unlawful Carrying a Weapon;*
28. Unlawfully Carrying a Handgun by a License Holder;*
29. Unlawful Possession of Firearm;*
30. Possession of Prohibited Weapon;*
31. Unlawful Transfer of Weapons;
32. Hoax Bomb;
33. Making Firearm Accessible to a Child

* Denotes offenses that may be filed as a felony depending on the circumstances

By law a person who has obtained an Order of Nondisclosure or a deferred adjudication may deny the occurrence of the arrest or prosecution unless it is being used against a person in a subsequent proceeding. Furthermore, there are civil penalties for private entities that collect and compile this information if they do not comply with an Order of Nondisclosure. After the first warning, they are liable to the state for a civil penalty up to $500.00 for each subsequent violation. Someone seeking to have an arrest record sealed or expunged in Fort Worth or Tarrant County would be wise to employ an attorney with knowledge and experience in these matters.