Common Question: Can I Expunge A Texas Felony Conviction After I Have It Set Aside
Quick Answer: No (However, we MAY be able to expunge a class C misdemeanor that has been set aside.)
Background: Many people who do not qualify for expungement or an order of non-disclosure in Texas seek relief through Tex. Code Crim. Pro. Art. 42.12 § 20. This section allows people who were convicted and successfully complete their probation to have their conviction set-aside. The law says a judge "the judge may set aside the verdict or permit the defendant to withdraw the defendant's plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which the defendant has been convicted or to which the defendant has pleaded guilty."
This remedy is a great benefit, but it, in many cases, still leaves a record of the arrest and the court case. Many people who have had their felony case set-aside wish to take it a step further and have the case expunged through Code of Criminal Procedure chapter 55.
Chapter 55 allows "a person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged." The first prong of the eligibility test for Chapter 55 requires that: "an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed." Setting aside the conviction arguably meets this requirement.
However, the setting aside fails to meet a later requirement in Chapter 55 that says "the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor.
The requirement that it be a Class C misdemeanor severely limits the ability to expunge convictions that have been set-aside.
The good news is that setting aside a conviction restores all rights and allows a person to say they do not have a conviction as a result of the case. This benefit greatly exceeds the benefits of expungement laws in many other states.
-Mathew Higbee
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2 comments:
This information should be available to more people in Texas.(including attorneys) This sounds like it would work perfectly for me and allow me to finally get a decent job with decent wages.
Setting aside a conviction in Texas in accordance with Texas Code of Criminal Procedure Article 42.12 Section does allow you to have all rights of citizenship, however employers usually still look at the record as a conviction, so in that regard it is of little help!
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