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Texas Expunction Law Changes, effective 9-1-2011

Good news and bad news, Austin/Travis County!  Texas expunction law is about to change.  Bills passed during the 82nd Texas Legislature (for which I am proud to have testified) change several aspects of expunction law.  These changes will take effect on 9-1-2011.

The Good News

One change is the new eligibility for a person granted relief on the basis of actual innocence.  Up until now, a person who had been convicted but later pardoned could have his criminal record expunged, but a person who was convicted and later found to be actually innocent could not.

The new law also changes the timeline during which one becomes eligible for expunction if the charges are not filed within a certain amount of time.  Current law provides that a person who was arrested must wait to expunge until the statute of limitations for the offense expires (generally, 2 years for misdemeanors, 3 years for most felonies, longer for certain serious felonies.)  Under the new law, a person who is arrested but not formally charged with a misdemeanor offense may petition for expunction:

  • 180 days after arrest for a Class C misdemeanor (traffic tickets, PI, MIP, punishable by fine only)
  • 1 year after arrest for Class A & B misdemeanors
  • 3 years from date of arrest for all felonies
  • at any time after arrest if the attorney for the State certifies that the files are not needed for any subsequent criminal prosecution.

The Bad News

For cases that are formally filed by indictment or information but later dismissed, (the most common situation), the person must still wait until the statute of limitations expires to petition for expunction.

As of September 1st, a person may no longer petition for expunction of records for an arrest that was made pursuant to a probation revocation warrant.  The new law also denies eligibility to expunge records to people who intentionally or knowingly abscond (“jump bail”) after being released on bond.

Another consequence of the new law is that a person will likely no longer be eligible to expunge misdemeanor cases that were disposed of under Section 12.45, Penal Code.  Courts have interpreted current law to allow expunction of 12.45 misdemeanors, but the new language of the statute makes that interpretation moot.

This illustrates the importance of having Texas criminal records expunged as soon as you are eligible.  Once expungement is granted, the records are destroyed forever.  But if you wait too long, the Legislature may enact changes that will make it so you are no longer eligible.