▶ Watch: Can a Criminal Record Be Erased?
Explanation of Expunction
An expunction is a legal process that entails the complete deletion of criminal history records by government agencies, including the county or district clerk and police, who have collected information related to arrests. Once an expunction is granted, you are legally entitled to deny that the arrest ever occurred.
Duration of an Expunction
In Montgomery County, Texas, the timeframe for an expunction can vary based on the statute of limitations applicable to your specific offense and the eligibility criteria for expunction. In some cases, the process can be as short as 2-3 months, while for others, a longer waiting period may be required, depending on the relevant laws and circumstances of your case.
Understanding Criminal Records
Contrary to depictions in movies, criminal history is not stored in a single paper file labeled as confidential. Instead, your records exist in various locations, such as the county or district clerk's office, the district attorney's office, private criminal history databases, and national and state-level federal databases like TCIC/NCIC for Texas. Drawing from my experience as a former prosecutor in Montgomery and Harris County, I have reviewed numerous criminal histories, many of which were inaccurate, incomplete, or confusing. It's important to note that not all states report their statistics uniformly.
The concept of "my record" is not encapsulated in a single definitive list or location. When a case is expunged according to Texas Law, records pertaining to your arrest are supposed to be deleted by different agencies. However, ensuring that the government follows through with protecting your legal rights requires some diligence. Nevertheless, even with an expunction, completely erasing the case from the internet can be challenging, as private companies can collect and retain such information, unaffected by expunction rules. An expunction is considered a legal fiction, in that regardless of the outcome, an arrest did occur. Nonetheless, an expunction can assist in achieving justice when an arrest was unjustified. As a society, it is crucial to reserve judgment until all the facts and evidence are heard. Remember, behind each arrest is a person with a life, a family, and a purpose. If you discover that someone was arrested after conducting a criminal history check, it may surprise you to learn how many cases are dismissed or result in a lack of conviction. Arrested individuals remain innocent until proven guilty.
Overview of Expunction
For anyone facing criminal charges, the best possible outcome would be to obtain an expunction of the case from their record. Here are the various scenarios in which an expunction can be obtained:
-
No formal charges are filed by the State after an arrest.
-
Charges are formally filed but later dismissed.
-
Certain misdemeanor juvenile offenses.
-
Minor alcohol offenses.
-
Convictions for Failure to Attend School.
-
Records and files certified as unnecessary for use in another person's criminal investigation or prosecution by the prosecuting attorney's office.
-
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.
-
Conviction that has been pardoned by the Governor or the President of the United States.
Types of Nondisclosure Orders
There are ten different types of nondisclosure orders. Some nondisclosures are automatic, meaning that judges do not have discretion to deny a motion for nondisclosure. Section 411.072 mandates the issuance of a nondisclosure order for misdemeanors dismissed under 42A.111 (Deferred Adjudication Completion) unless they fall under specific categories, including offenses such as unlawful restraint, assault, prostitution, and driving while intoxicated.
Other sections of the Government Code, including Sections 411.0725, 411.0726, 411.0727, 411.0728, 411.0729, and 411.073, cover petition-based nondisclosures. These apply to situations such as deferred adjudication that is not automatically sealed, certain convictions where the person received community supervision (straight probation), and even some first-time DWI convictions — each with its own waiting period and strict eligibility rules. Unlike an automatic nondisclosure, these require you (or your attorney) to file a petition and, in many cases, attend a hearing.
Which One Applies to You?
Expunction and nondisclosure are not the same thing, and which remedy you qualify for depends entirely on how your case ended. An expunction erases the record; an order of nondisclosure seals it from public view while still allowing certain government and licensing agencies to see it. Because eligibility turns on the specific outcome, the offense, and the applicable waiting periods, the most reliable way to know your options is to have an attorney review your record.
Speak With Brian Foley Today
If you want to clear or seal a criminal record in Conroe, The Woodlands, or anywhere in Montgomery County, contact Brian Foley Law PLLC for a free, confidential consultation. As a former Chief Prosecutor, Brian knows exactly how these records are created — and how to help you put them behind you.