Having a criminal record can cause life-long problems, hamper your personal goals and aspirations, get in the way of employment opportunities, and even become a barrier when it comes to housing options.
Even if a court case doesn’t lead to a conviction, the arrest, charges, and court proceedings remain on your record until action is taken to have them removed.
This is where expungement and record sealing come in—legal processes that result in the permanent erasure or concealment of criminal records from public view.
In this guide, we provide a comprehensive comparison of sealing versus expunging criminal records according to Texas law, including their differences, the eligibility criteria for both, and more.
Understanding Expungement and Record Sealing
Though often mistaken for being the same thing, expungement and record sealing are different legal processes:
Expungement is the process of permanently erasing or destroying records. Once granted, it’s like the arrest and charges never even happened. Expungement (sometimes referred to as expunction) is only available when a charge has been dismissed or the defendant has been acquitted (tried and found innocent).
Record sealing is the process of hiding criminal records from public view. The records still exist, but access to them is restricted. Some law enforcement agencies and authorized organizations can still view sealed records. However, sealed records will not appear on most public background checks—like the ones run by employers and lenders. An order of nondisclosure also frees an individual from the obligation to disclose their criminal record in public, for example, in job applications.
In Texas, you can only petition the court for an order of nondisclosure if you haven’t received a conviction. For example, if you were granted deferred adjudication and successfully completed community supervision, you cannot have your record expunged, but you may be able to apply for nondisclosure.
Eligibility Criteria for Expungement
Both expungement and record sealing are only available for criminal cases that have not led to a conviction.
Chapter 55 of the Texas Code of Criminal Procedure describes the eligibility circumstances for expungement. They include:
- A trial that led to acquittal by judge or jury
- You were tried and convicted but later pardoned or “otherwise granted relief on the basis of actual innocence with respect to…” the original offense.
- Your conviction was overturned by an appellate court.
- Your charges were dismissed or quashed before the case went to trial.
To be eligible to file a petition for an order of nondisclosure, the following criteria must be met:
- You were granted deferred adjudication for the offense in question.
- You successfully completed deferred adjudication. This includes meeting all court-ordered terms and conditions, such as attending classes, paying fines, and completing community service hours.
- The offense committed was an offense that’s eligible for an order of nondisclosure.
- You must not have any disqualifying criminal history (disqualifying criminal history is described further under limitations and exceptions.)
- The applicable waiting period must have elapsed after your dismissal and discharge date. This period is typically five years for felony deferred adjudication and two years for misdemeanors, though some misdemeanors do not come with a waiting period.
- Between the date the deferred adjudication was granted and the day the charges were dismissed, you must not have been convicted or placed on deferred adjudication for any criminal offenses.
Types of Offenses Eligible for Expungement
Most offenses that do not end in a conviction can be sealed, but not all. The following types of offenses may be eligible for nondisclosure:
- First-time non-violent misdemeanors
- Deferred adjudication for first-time DWI
- Offenses committed solely as a victim of human trafficking or compelled prostitution
Legal Process of Expungement
The process for expungement begins by filing an Application for Expunction in the district court in which you were arrested or convicted. A court hearing will then be scheduled—usually no sooner than 30 days from the date the application was filed.
In Texas, those who received first-time misdemeanors that were dismissed and discharged after August 31, 2017, may be eligible for automatic nondisclosure. If the eligibility requirements are met, this process should automatically take place once six months have passed from the start of deferred adjudication.
For misdemeanors that are eligible for nondisclosure (but not automatic nondisclosure), you must file a petition. The district clerk’s office in each jurisdiction should be able to tell you how to obtain a petition packet. You can also ask a defense attorney to help with the application process.
The following documents and information should be submitted with the application:
- Order of deferred adjudication
- Dismissal and discharge documents
- A list of entities that may have copies of your criminal records
The judge will then review your case and criminal history to determine eligibility. If you qualify, you will be issued with a nondisclosure order.
Benefits of Expungement
If you’ve been wrongly arrested and charged, you should not have to live with the consequences of a criminal record. Having your record expunged will be as though the ordeal never happened—you will no longer have to worry about the arrest record surfacing during background checks.
If you’ve successfully completed deferred adjudication, the benefits of obtaining an order of nondisclosure can potentially be life-changing.
Once an order of nondisclosure has been granted, you are no longer required to disclose the arrest and charges when applying for jobs. Additionally, the records will not show during routine background checks by employers or lenders, which can significantly improve your employment prospects, housing opportunities, and overall quality of life.
Limitations and Exceptions
Several factors can disqualify you from eligibility for nondisclosure. Any crime that leads to a conviction cannot be sealed. With deferred adjudication, the conviction is withheld and—upon successful completion of the program—dismissed, which is why you can petition to have these criminal records sealed.
However, not everyone who completed deferred adjudication will be granted nondisclosure. If you have a disqualifying criminal history, for example, you will not be able to petition for nondisclosure.
You cannot be eligible for record sealing if you have ever received deferred adjudication or a conviction for any of the following crimes:
- Capital murder
- Aggravated kidnapping
- Aggravated robbery
- Any offense that requires being registered as a sex offender
- Causing injury to a child, a senior citizen, or a disabled person
- Human trafficking
- Child endangerment or abandonment
- Family violence
- Court order or bond condition violation for family violence, sexual abuse, or sexual assault charges
Record Sealing vs. Expungement: Legal Distinctions
Criminal records can impact career prospects, professional licensing, finances, housing, and more. Both record sealing and expungement are procedures used to clean criminal records.
Expungement is the permanent erasure of a criminal record. When granted, it is accepted that the person in question did not commit a crime. The records are destroyed and can not be used against the individual in future legal proceedings.
Nondisclosure, or record sealing, differs from expungement because the criminal record still exists—however, access to the criminal records is restricted to some government agencies and authorized organizations. A sealed criminal record can be used in future legal proceedings. For example, a sealed record of a first-time DWI can be used to enhance a future DWI—which would be considered a second offense.
Sealing Juvenile Records
Childhood mistakes shouldn’t define your present and future as an adult. A clean slate is essential for starting out with a career, home, and independent life.
In Texas, juvenile records can be automatically sealed under the following circumstances:
- You were referred to juvenile court for supervision and were never referred for delinquent conduct.
- You were referred for delinquent conduct but were not adjudicated or were adjudicated for a misdemeanor, not a felony.
Otherwise, you can apply for record sealing if you meet the eligibility requirements.
Factors that can disqualify you from nondisclosure eligibility include:
- Being ordered to stand trial as an adult
- If you’re required to register as a sex offender
Legal Rights After Expungement
When your criminal record is sealed, you are freed from your obligation to disclose any information about the offense. You’re no longer required to mention the records in employment, housing, or credit applications. You also have the right to verbally deny the existence of a criminal record—for example, if asked in a job interview.
Additionally, sealing a criminal record restores your right to own a firearm. However, if you have a history of family violence, it’s unlawful to possess a firearm until five years have passed since your dismissal from community supervision.
Challenging Denied Expungement
Challenging denied expungement and nondisclosure can be a complex and lengthy procedure, but not impossible to achieve. Here are a few steps you can follow:
- Understand why the expungement was denied: The first step is to review the reasons given by the court for the denial. This will help you identify any missing or incorrect information that needs to be rectified for next time.
- Seek legal counsel: A criminal defense attorney with experience in expungement can offer in-depth advice and feedback and increase the chances of a successful petition.
- Review relevant state laws and procedures: Reviewing the eligibility requirements and laws will help you understand your rights and help you identify potential grounds for appeal.
- Gather relevant evidence: You can help your attorney build a compelling case by providing any new documentation or evidence that can help strengthen your petition. This can include attendance records for classes and rehabilitation efforts, employment records, and referral letters from respected members of the community.
It’s vital to remember that the circumstances of every case are unique and that laws and procedures differ from state to state. For tailored advice and a higher chance of success, you should contact a defense attorney.
Public Access to Sealed Records
Variations in state laws can mean that sealed records have higher restrictions in some places than others. In general, sealing records allows civil and criminal offenses to be stored away from public access.
In Texas, law enforcement agencies and some authorized organizations can view sealed records when running background checks. A complete list of those able to view sealed records can be found in Texas Government Code Sec. 411.0765. The list includes (but is not limited to):
- Criminal justice agencies
- State Board for Educator Certification
- Board of Law Examiners
- The Department of Family and Protective Services
- The Texas Board of Nursing
However, routine background checks run by most employers and lenders will not reveal sealed records.
Legal Advocacy and Court Procedures in Expungement and Sealing Cases
Defense attorneys with experience in expungement understand the laws and procedures inside and out. As such, seeking legal counsel can be pivotal in successfully obtaining your expungement or nondisclosure.
A skilled lawyer can offer you guidance, help prepare relevant forms, letters, and applications, and ensure that all the documentation and evidence required for a successful petition is included. They can help you formulate a robust strategy for the best possible outcome based on their experience and in-depth knowledge.
FAQs About Sealing and Expunging Criminal Records
What Is the Main Difference Between Sealing and Expunging Records?
When a record is expunged, it is erased or destroyed permanently. Sealed records still exist, but access to them is restricted to certain government agencies and authorized organizations only.
How Long Does the Record Sealing Process Typically Take?
The length of time it takes to seal a record can vary, but it typically takes between 6 and 8 months. Your defense attorney will be able to give you a more accurate timeframe.
Who Has Access to Sealed Records in Texas?
Courts, law enforcement officers, government agencies, and some authorized organizations such as the Texas Medical Board, the State Board for Educator Certification, and the Texas Board of Nursing have access to sealed records.
Are There Specific Eligibility Criteria for Expunging a Criminal Record?
A record can only be expunged or sealed if the criminal charges did not lead to a conviction. For expungement, the defendant must have been acquitted or their case dismissed pre-trial.
For record sealing, the defendant must have successfully completed deferred adjudication, not committed any other offenses, and waited for the applicable waiting period to pass.
Can a Sealed or Expunged Record Be Used Against Someone in Court?
An expunged record no longer exists and, therefore, cannot be used against someone in court. However, a sealed record can be used to aggravate future cases. For example, if someone was granted deferred adjudication and, subsequently, an order of nondisclosure for a 1st DWI, the record would be used to enhance a future DWI, which would be counted as a second DWI offense.
Ben has vast experience in defending criminal cases ranging from DWIs to assault, drug possession, and many more. He has countless criminal charges dismissed and pled down. Among many other awards, one of the Top 10 Criminal Defense Attorneys in Texas and winner of Top 40 under 40.