Who can access expunged records in Texas?

shredded arrest recordsWhen done properly, the most common type of expunction will destroy all records relating to the arrest and prosecution that are in the possession of the court, law enforcement, or government agencies.

An expunction will also clear your official Texas DPS criminal history and remove your information from legitimate background check companies and consumer credit reporting agencies.

An expunction order may also apply to private entities like those less reputable background check websites, the HR department of your former employer, and the divorce attorney for your ex-spouse.

Call (512) 480-9020 to hire us for Expunction of arrest records in Travis County.

Expunctions & Federal Law

Expunction is only a remedy under state law. There is not currently any right to expunction under federal law. However, the US government requires state officials to forward certain criminal history information to the FBI. If that happens before the information is expunged on the state level, the information may be transferred from the FBI to other federal agencies like the Transportation Security Administration or the US Citizenship and Immigration Services (previously known as INS.)

libertyA conviction for a crime involving moral turpitude can prevent a person from ever becoming a US citizen.  It is important to get a certified copy of the court’s file before expunging criminal records for a non-citizen.

Consult an immigration attorney to discuss whether or not it is better to wait until the a person is naturalized before seeking an expunction.  Those records may be needed to prove eligibility for citizenship.

Call (512) 480-9020 to hire us for Expunction of arrest records in Travis County.

Partial Expunctions

A partial expunction may be intentional or unintentional. The former are expunctions that destroy the court’s file and clear the Texas DPS criminal history but allow the prosecution and law enforcement to retain their files. An intentional partial expunction can happen for multiple reasons including:

  • The defendant is still subject to prosecution for another offense allegedly committed during the same criminal transaction as the case being expunged.
  • The defendant was arrested but never charged, the limtations period has not yet elapsed, and the prosecution did not certify that the person will not be charged.
  • The defendant was found NOT GUILTY at trial but the state needs the records to prosecute someone else, or for a different case like a probation or parole revocation, punishment hearing, etc.
  • The defendant was found NOT GUILTY at trial but the prosecution proves the records are needed for a civil case or child custody matter.

The decision to seek a partial expunction in any of the above circumstances requires balancing the benefits of a quick erasure of the official record against the possible consequences if the information retained by law enforcement is revealed at a later date, for example via an open records request.

An unintentional partial expunction occurs when an expunction is granted, but the petition contains an incomplete list of entities in possession of records, causing some of them to be missed.  It may not be possible to fix this type of error, so care must be taken to thoroughly search the court’s file for indictations of which entities must be listed as respondents to the original petition.

Call (512) 480-9020 to hire us for the expunction of arrest records in Travis County.

Enforcing an Expunction Order

If you discover that someone is publishing or otherwise using records after an expunction is granted, the first step is to notify them in writing. Be prepared to provide a copy of the signed expunction order, if requested. If it was an honest mistake then they should agree to destroy the records without any additional cost to you. Legitimate online background check companies will provide contact information for reporting errors and expunctions.

Note: Some online background check companies make no attempt to validate the quality of the data they publish. These companies are the bottom-feeders of the data market and often have disclaimers like “for entertainment use only” or “not a consumer reporting agency” or “not for employment purposes.” Rather than validate their data, many of these operations allow people to simply submit a web form to “opt out” of their database but you may have to poke around their website a while to find the page.

Federal agencies are not technically under the jurisdiction of any state court so there us no authority for enforcing an expunction order against entities like the FBI, TSA, or ICE.  Obtain a copy of your own FBI file to determine if they complied with a state expunction order.

Call (512) 480-9020 to hire us for Expunction of arrest records in Travis County.

Expunction Enforcement Laws

gavelThe following resources may be helpful to Texas attorneys seeking to enforce an expunction order:

Call (512) 480-9020 to hire us for Expunction of arrest records in Travis County.

Further Reading

Who can access sealed criminal records in Texas?
More about Expunction and Nondisclosure