You may be entitled to an expunction if you arrested but never tried in court either because you were never formally charged (this is called a no-bill) or the case was dismissed before trial. In those situations, you are entitled to an expunction if a) you are released without there being a final conviction or court-ordered supervision (aka deferred adjudication), and b) the statute of limitations has expired, the case was dismissed for a specific reason or a waiting period has passed.
The first requirement is fairly simple to understand. You can’t be found guilty, plead guilty, or take deferred adjudication and later be eligible for expunction. The only exception to that is that you can take deferred adjudication for Class C misdemeanors (typically traffic offenses) and be eligible for an expunction.
The second requirement is a bit more complicated. Well, parts of it are. The simple part is if the statute of limitations has expired. If you meet the first requirement and you can no longer be prosecuted for the offense because the statute of limitations has run, you are entitled to an expunction. That’s cut and dry. If you’re wondering if the statute of limitations has run, call our office to set up a consultation to see if you’re eligible for an expunction.
The other two parts of the second requirement are a bit more complicated.
First, you may be eligible for expunction if your case was dismissed for a specific reason. But what are those specific reasons? One is that you complete an authorized pretrial intervention program. These programs are often called pretrial diversion (Kaufman County) or memo agreements (Dallas County). Another is that the case is dismissed for a reason indicating lack of probable cause. It’s often very difficult to satisfy the lack of probable cause requirement. But some examples of reasons that would indicate lack of probable cause are a material witness lying to the grand jury, fabrication of important evidence like a drug test, or failure to present evidence to the grand jury that likely would have exonerated the person charged.
Second, you can be eligible for an expunction if you are never indicted after a certain amount of time has passed. In other words, if the prosecution is not proceeding with your case, you can get an expunction after a certain amount of time. For Class C misdemeanors, the waiting period is 180 days. It’s one year for all other misdemeanors and three years for all felonies. If you are charged with both a misdemeanor and a felony, you must wait three years to be eligible for expunction on the felony and the misdemeanor. It should be noted that waiting period expunctions are not full expunctions. Law enforcement agencies and the prosecution are allowed to retain records, but outside agencies may not obtain the records. In this respect, waiting period expunctions operate like non-disclosures.
This is quite a bit of information, and it can be difficult to determine if your case is eligible for expunction. Call Guest & Gray today at (972) 564-4644 to set up a consultation with our expunction attorney to see if you are eligible for an expunction.