I’m Innocent! Now What?


By Ward B.B. Davison, J.D. & Hillary Hennessee, M.A.
Originally published in the Texas State Bar Journal 2013

Congratulations! You hired a good criminal defense attorney. She fought for your rights. A jury of your peers found you innocent and now you are free to continue with your life. Or even better, your case was dismissed and you never even had to go to trial. Exceeeeppptttt…there’s still a record of your arrest for assault of a family member. This creates problems.

Perhaps in your line of work employers check criminal history. In this economy, having any type of criminal record can get your resume shuffled to the bottom of the stack. Unfair? Yes. The end of the unfairness? No. Having a conviction or arrest of your possession of marijuana charge can adversely affect your admission to the college of your choice. It can also disqualify you for many scholarships. Even renting the apartment you want can seem a daunting task because many apartments will not rent to people with a criminal history involving drugs or violence. So, you were found innocent by the legal system, but the deck is now stacked against you. Fortunately, your lawyer has a few more tricks up her sleeve. But you have to call her to know if she can use them for you! Let’s look at some of the methods she might employ on your behalf:

Expunction (also called expungement) of your record [1]

Black’s Law Dictionary defines “Expungement of Record” as the removal of a conviction (esp. for a first offense) from a person’s criminal record.[2] Of course, this doesn’t apply to you. You were never convicted of the crime you were charged with. The fact that you were arrested, however, still shows up on your criminal history report. That arrest record is stalling your job search, despite your innocence. Lucky for you, the State of Texas - in all its benevolence, is looking out for your needs. But if you do qualify for an expunction…get one…because then the law treats you as if you were never arrested or charged. In fact, with a successful expunction you can omit ever being arrested or charged for that offense and still be within your lawful rights.

You may posses a right to have the record of your arrest expunged. Article 55 of the Texas Code to criminal procedure extends the “Right to Expunction” to “all records and files relating to the arrest” if certain conditions are met.[3] The two most common conditions are 1) that you were acquitted or convicted and then subsequently pardoned; or 2) that you were released with no final conviction and were not required to be placed on community supervision. The second condition is surrounded with several exceptions and stipulations. The first has a few of its own. That’s why you should call your attorney.

Order of Nondisclosure

You’ve served your deferred adjudication community supervision and your case has been discharged and dismissed. But you can’t get an expunction of your records because you don’t qualify under Texas rules. Another opportunity still exists.

You may qualify to have the records of your arrest and deferred adjudication community supervision sealed from everyone except government agencies. Under the Texas Government Code Section 411.081 the court may “issue an order prohibiting criminal justice agencies from disclosing to the public criminal history record information related to the offense giving rise to the deferred adjudication.”[4] As with expunction, there are several exceptions and conditions to the rule. For instance, many Texas State agencies that may license or employ you still possess the ability to access your sealed records. These agencies include, but are not limited to

(1)  the State Board for Educator Certification;
(2)  a public, private or charter school
(3)  the Texas Medical Board;
(4)  the Texas School for the Blind
(5)  the Board of Law Examiners;
(6)  the State Bar of Texas;
(7)  a district court
(8)  the Texas School for the Deaf;
(9)  the Department of Family and Protective Services;
(10)  the Texas Youth Commission;
(11)  the Department of Assistive and Rehabilitative Services;
(12)  the Department of State Health Services,
(13)  the Texas Private Security Board;
(14)  a municipal or volunteer fire department;
(15)  the Texas Board of Nursing;

(16)  a safe house providing shelter to
(17)  a public or nonprofit hospital
(18)  the Texas Juvenile Probation Commission;
(19)  the securities commissioner,
(20)  the Texas State Board of Public Accountancy;
(21)  the Texas Department of Licensing and Regulation;
(22)  the Health and Human Services Commission;
(23)  the Department of Aging and Disability Services;
(24)  the Texas Education Agency;
(25)  the Guardianship Certification Board;
(26)  a county clerk’s office
(27)  the Department of Information Resources
(28)  the Court Reporters Certification Board;
(29)  the Texas Department of Insurance; and
(30)  the Teacher Retirement System of Texas

That’s a lot of exceptions. That means…call your attorney!

Sealing Juvenile Records

You may want your youthful discretions kept from coloring how people evaluate you as an adult. In this instance, the Texas Family Code is your refuge. Section 58.003 of the Texas Family Code allows the records of your juvenile misconduct to be sealed…sometimes. This option comes loaded with conditions and exceptions. At least two years must have lapsed since the last official action has taken place on your case, your charge must not have been a violent offense and you have not been “convicted of a felony or misdemeanor involving moral turpitude.” [5] Sometimes your records are automatically sealed or under restricted access. [6]

Even when sealed, your juvenile records may still be accessed by various law enforcement departments, and may become unsealed for certain reasons depending on your circumstances. That’s why you should always contact your attorney.

What Now?

Contact your attorney. Be absolutely honest about why you are exploring these options. Fully disclose the reasons you are asking for your attorney’s services. Failure to be open and honest with your attorney could lead to unnecessary fees and unforeseen results in the future. Remember, your attorney works for you, has a duty to keep everything confidential, and has a duty to fight for your rights. She will not collaborate with the State or any State department to put you at a disadvantage. There are methods to clear you records…be sure you use them to the full extent possible.

[1] Bryan A. Garner, A Modern Dictionary of Legal Usage, 2nd Edition. (New York, New York, N.Y. : Oxford University Press, 1995). P. 342.
[2] Bryan A. Garner, editor, Black’s Law Dictionary, 8th ed. (St. Paul, Minn. : West, 2009)P. 621.
[3] Texas Code of Criminal Procedure. Title 1. Chapter 55. Article 55.01.
[4] Texas Government Code. Title 4. Subtitle B. Chapter 411. Subchapter A. Sec. 411.081(d)
[5] Texas Family Code Section 58.003
[6] Texas Family Code Section 58.203

WARD B.B. DAVISON, J.D.practices criminal and civil law in Austin.
HILLARY HENNESSEE, M.A. is a senior paralegal at Nichols & Gill, P.C. She has completed her master’s degree in Legal Studies from Texas State University.