Board Certified in Criminal Law - Brian Foley can help you get an expunction or non-disclosure and erase or seal your criminal record.  Here's the most frequent questions I get asked on this topic. 

Is this case going to be on my record? What is a record? Who sees it?  What can you do to get it off my record? 

I hear these questions all the time.  The way to get something "off your record" is to get an Expunction.  If you can't get one because of how your case was disposed then you may still be able to get a non-disclosure or you may still be able to report you have never been convicted.  Finally if you were convicted and sent to jail or prison and the case is no longer eligible for appeal, the only way to get something off your record is by an official pardon.    

 

What does an expunction do?

An expunction requires the various government agencies that collected criminal history information like the county or district clerk and police to delete their records of your arrest entirely.  At the end of a granted expunction you can legally deny that the arrest ever took place. 

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How long does an expunction take?​

In Montgomery County, Texas an Expunction can take various lengths of time based on the statute of limitations for your specific offense and how it became eligible for expunction.  Sometimes the process can be as short as 2-3 months.  For others you may have to wait a longer period of time based on the law and facts of your case. ​

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What is your record anyway?

Criminal History isn't like in the movies.  You don't have a paper file somewhere with a confidential stamp on the cover.  You have records at the county or district clerk's office, the DA's office, private criminal history gathering services, and the federal databases for the nation and Texas called TCIC/NCIC.  I worked as a prosecutor in Montgomery and Harris County and have reviewed thousands of criminal histories.  I've seen some that were flat out wrong, incomplete, and confusing.  Some states report all their statistics and some don't.  

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There is no one place to go or a definitive complete list called "my record."  When a case is expunged Texas Law allows for the deletion of records related to your arrest at various agencies and some diligence is required to make sure that the government follows through with protecting your legal rights.  However, even then it can be difficult to erase the case entirely from the web.  Private companies can collect the information and they are not subject to the expunction rules.  An expunction is part of what they call "legal fictions."  No matter what happens if you were arrested, you were in fact arrested.  Nothing can change that.  But an expunction can help you get justice when the arrest was not warranted.  One thing we could all do as a society is remember to reserve judgment until we've heard the facts and the evidence.  It's a person that gets arrested.  A person with a life and a family and a purpose.  If you find out that someone was arrested after doing a criminal history check, find out what happened to the case.  It may surprise you how many cases are dismissed or result in the lack of a conviction.  A person doesn't cease to be a person when they are arrested.  They are innocent until proven guilty.  

 

Expunction in general

The best case scenario for any person charged with a crime would be to later get an expunction of the case from their record.  Here are the ways you can get an Expunction.  If you took probation it is very unlikely you will get an expunction. 

 

• The State never files formal charges after someone is arrested. 

• A charge that is dismissed after being filed formally.

• Some misdemeanor juvenile offenses;

• Some minor alcohol offenses

• Failure to Attend School convictions

• If the prosecuting attorney’s office certifies that the records and files are not needed for use in any criminal investigation or prosecution of another person;

• Arrest, charge, or conviction on a person’s record due to identity theft. 

• Conviction subsequently acquitted by the trial court or the Court of Criminal Appeals; and

• Conviction that is pardoned by the Governor or the President of the United States.

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Types of nondisclosures

There are 10 different types of nondisclosure orders. ​​ Some nondisclosure are automatic meaning that the judge does not have the discretion to deny a motion for nondisclosure.  Section 411.072 instructs that the court SHALL issue a nondisclosure order on misdemeanors that have been dismissed under 42A.111 (Deferred Adjudication Completion) and are not any of the following:

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• Unlawful Restraint (Chapter 20)

• Operation of a Stash House (Chapter 20)

• Public Lewdness (Chapter 21)

• Indecent Exposure (Chapter 21)

• Voyeurism (Chapter 21)

• Unlawful Electronic Transmission of Sexually Explicit Visual Material (Chapter 21)

• Assault (Chapter 22)

• Assault Family Member (Chapter 22)

• Indecent Assault (Chapter 22)

• Deadly Conduct (Chapter 22)

• Terroristic Threat (Chapter 22)

• Aiding Suicide (Chapter 22)

• Leaving a child in a vehicle (Chapter 22)

• Enticing a child (Chapter 25)

• Harboring a runaway child (Chapter 25)

• Violation of Protective Order or Bond Condition (Chapter 25)

• Advertising for placement of child (Chapter 25)

• Disorderly Conduct (Chapter 42)

• Obstructing a Highway (Chapter 42)

• Disrupting a meeting or procession (Chapter 42)

• Funeral Service Disruption (Chapter 42)

• False alarm or report (Chapter 42)

• Silent or Abusive Calls to 911 (Chapter 42)

• Interference with Emergency Request for Assistance (Chapter 42)

• Harassment (Chapter 42)

• Disclosure of Confidential Information (Chapter 42)

• Abuse of Corpse (Chapter 42)

• Cruelty to Animals (Chapter 42)

• Attack on Assistance Animal (Chapter 42)

• Dog Fighting (Chapter 42)

• Cockfighting (Chapter 42)

• Destruction of Flag (Chapter 42)

• Discharge of Firearm in Municipality (Chapter 42)

• Use of laser pointer (Chapter 42)

• Illumination of Aircraft by Intense Light (Chapter 42)

• Prostitution (Chapter 43)

• Obscene display or distribution (Chapter 43)

• Obscenity (Chapter 43)

• Distribution of Harmful Material to Minor (Chapter 43)

• Electronic Transmission of Certain Visual Material Depicting Minor (Chapter 43)

• Unlawful Carrying of a Weapon (Chapter 46)

• Hoax Bombs (Chapter 46)

• Making firearm Accessible to a child (Chapter 46)

• Engaging in Organized Criminal Activity(Chapter 46)

• Driving While Intoxicated (Chapter 49)

• Boating While Intoxicated (Chapter 49)

 

There are a few other conditions that apply to the automatic nondisclosure including being a first time offender and the requirement of 180 days to pass from the time you were placed on deferred. 

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Section 411.0725, Gov’t Code instructs that the judge MAY sign an order for nondisclosure with notable exceptions for offenses that involve family violence or have sex offender registration as a requirement. 

 

Section 411.0726, Gov’t Code allows nondisclosure for misdemeanor DWI under certain circumstances.

 

Section 411.0727, Gov’t Code allows for nondisclosure after the completion of vertans court programs under certain circumstances.

 

Section 411.0728, Gov’t Code allows for nondisclosure for certain victims of human trafficking.

 

Section 411.0729, Gov’t Code allows for nondisclosure for veterans to seek a nondisclosure "regardless of whether the defendant meets the other eligibility criteria under this subchapter."

 

Section 411.073 - 411.0736, Gov’t Code allows for the nondisclosure of certain DWI convictions. 

 

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