Colloquially, to expunge something means to erase or remove something completely. In a legal sense, it speaks to the concept of removing or sealing a prior criminal conviction from the state or federal record. Expungement laws, and the laws surrounding similar programs such as nondisclosure, vary from state to state and generally depend on the nature of the crime, the amount of time that has passed, and whether there were any subsequent crimes. Certain crimes can never be expunged, whereas others require longer waiting periods before expungement becomes possible.
The effect of an expungement can also vary from removing the case from public record or not requiring a disclosure of that crime to scrubbing the criminal record clean altogether. Most expungements occur at the state level, as federal expungements are extremely rare. There isn’t even a federal statute governing the eligibility, effect, or process.
Why Is Expungement Worth the Hassle?
The effect of a criminal conviction speaks to more than just the punishment itself – be it jail time, a fine, community service, probation, or something else. It often has a lasting impact on the offender’s life. Once you’ve “done the time”, a criminal conviction can still haunt you.
Specifically, a criminal record can negatively impact your ability to secure employment, and may bar you from certain fields of work entirely, especially in roles involving a security clearance. It is rare and difficult to attain a security clearance, and most existing security clearances will be revoked once a criminal conviction occurs. A criminal conviction makes obtaining any sort of loan, including studently loans, extremely difficult, and it can bar you from receiving loans under certain programs altogether. Criminal convictions can also disqualify you from certain housing programs, and individual landlords often conduct a background check, so you may experience difficulties in finding housing, limiting your options significantly.
On the same note, a criminal conviction on public record can severely impact your credit and your ability to obtain certain professional licenses. In some states, those convicted of a criminal charge lose their right to vote, and a criminal conviction can negatively impact your immigration status if you are not a citizen of the United States, even leading to denial of citizenship or deportation. A criminal conviction can also limit your ability to travel internationally and can play a role in any custody disputes you may face. While any negative reputation within the community as a result of a criminal record can be cured by moving away, your criminal record will still remain and will follow you in every background check and mandatory disclosure you face in any state and even abroad.
Thankfully, for many crimes, the law provides a mechanism to remove your criminal record from public view. While it will never entirely go away, and can play a role in the sentencing of any subsequent convictions, expungement or similar non-disclosure proceedings can remove many of the limitations a criminal conviction imposes, allowing you to enjoy a future with far fewer obstacles.
Expungement Law in Texas
Texas law doesn’t actually use the word expungement. There are two terms that the state of Texas uses to refer to the concept of removing, sealing, or limiting access to a criminal record, speaking to two different processes entirely – expunction and nondisclosure. In essence, under Texas law, an expunction permanently removes the crime or crimes from a person’s criminal record, while nondisclosure removes the record from public view, while leaving it visible to certain entities such as criminal justice agencies, licensing agencies, and government entities. Think of expunction as clearing the record and nondisclosure as sealing the record. Expunction in Texas is rare, and nondisclosure is the more commonly accepted practice.
Expunction essentially can’t occur with any real conviction unless it was overturned or pardoned. It can only occur in felony and misdemeanor arrests, and will not apply to contempt of court charges, the consequences of missed or withheld child support payments, and any other civil penalty. The grounds on which Texas allows expunction are very limited:
- An arrest for a crime that never led to a charge.
- The arrest of a person that never led to a charge, regardless of the statute of limitations, if the prosecutor’s office confirms that the record is not needed for the criminal investigation or prosecution of another individual.
- A charge that was later dismissed.
- An arrest that was not charged if a case was not filed provided that there was no separate felony offense arising out of the specific crime that the person was arrested for.
- Specific misdemeanor juvenile offenses, including the conviction of a minor on certain alcohol-related offenses and convictions of failure to attend school.
- Any arrest, charge, or conviction on a person’s record as a result of being the victim of identity theft.
- The conviction of a crime that was acquitted by a trial or appeals court.
- The conviction of a crime that was pardoned by Texas’ governor or the President of the United States.
Where expunction is extremely limited, nondisclosure is a possibility for many adults in Texas with a criminal record. Nondisclosure seals the criminal record from public view and requires that those with access – such as government agencies – not share any information about or the existence of a criminal record to any unauthorized entities. Nondisclosure can be attained in two ways: automatic nondisclosure and nondisclosure with petition. An automatic disclosure applies to first-time misdemeanors and is mandatory six months after the adjudication provided certain legal requirements are met. There is no judicial discretion here. While the process, in theory, should be automatic, it is often necessary to remind the court to take this step-in practice. You must actually petition the court under every other circumstances
The conviction or deferred adjudication of many crimes are not eligible for nondisclosure altogether. These include:
- Any crime requiring registration as a sex offender
- Murder, including capital murder
- Aggravated kidnapping
- Human trafficking or continuous trafficking
- Family violence offenses
- Injury to a child, elderly individual, or disabled individual
- Child abandonment or endangerment
- Violating a court order of a court order or a condition of bond in any family violence, sexual assault/abuse, stalking, or trafficking case
For eligible crimes, there are certain waiting periods before nondisclosure can be granted, depending on the severity of the crime. Misdemeanors can range from immediate eligibility to two years, whereas felonies require five years. DWIs can range from two to five years depending on the circumstances.
Expungement Law in New Mexico
New Mexico was one of the last states to implement an expungement procedure, with the statute taking effect at the start of 2020. Since then, qualifying crimes can be removed from a person’s criminal record after the specified wait time has elapsed, as long as your sentence has been completed and there are no outstanding fines and fees and there were no subsequent convictions. The court will also review certain individual factors and circumstances before making their decision – there is no guarantee that an expungement will be granted.
Like Texas, there are certain crimes that will never be eligible for expungement in New Mexico. These include:
- An arrest that did not lead to a conviction.
- Violent offenses resulting in great bodily harm or death
- Crimes against children
- Sex crimes
The waiting period before an individual can apply for expungement depends on the circumstances and severity of the crime. They are as follows:
|Type of Crime:||Waiting Period:|
|Victims of identity theft where the thief faced any sort of charge or conviction while impersonating the victim||Immediate|
|Non-convictions of any severity (acquittals, diversion, conditional discharge, etc.)||One year from date of final disposition|
|Misdemeanor convictions (not including crimes against household members) and violations of municipal ordinances||Two years from completion of sentence|
|Fourth-degree felony convictions and misdemeanor aggravated battery||Four years from completion of sentence|
|Third-degree felony convictions||Six years from completion of sentence|
|Second-degree felony convictions||Eight years from completion of sentence|
|Eligible first-degree felony convictions or any degree of crime against a household member||Ten years from completion of sentence|
Experienced Texas and New Mexico Expungement Attorney
If you or a loved one are seeking to have your criminal record expunged or are unsure as to whether you qualify, turn to the experienced criminal defense attorney at the Benjamin Law Firm. Our team is prepared to guide people across the states of Texas and Mexico through the process. Let us help you leave your past mistakes behind you so you can enjoy every possibility the future has to offer.
Based in El Paso, our team offers a wide range of criminal defense services including expungement services, along with comprehensive civil litigation and aviation law practices. We have decades of experience, with a proven track record of results for clients across Texas and New Mexico.
Founding Attorney Brock Morgan Benjamin isn’t like every other Texas or New Mexico defense attorney. While many attorneys have experience practicing criminal law, Attorney Benjamin carries the honor of being Board Certified in Criminal Law by the Texas Board of Legal Specialization, embodying the true depth of his knowledge and experience in the field.
Contact us today or call us at (915)-221-7462 so we can help you move forward on the best possible footing. ¡También hablamos español!
Posted in: Criminal Defense