By John Robinson
Anytime a person is arrested and booked into jail, a record is created. This record quickly proliferates through many databases and is easily accessible to the public. In fact, many counties in the Dallas-Fort Worth area have booking photos of each person arrested available online at no cost. Even if the case is ultimately dismissed, there is a not guilty finding or community supervision is successfully completed, the stigma of arrest remains for all the public to see. Further, the reality is that the arrest record alone is effectively as harmful as being found guilty is to most prospective employers.
In Texas there are two main avenues used to limit an arrest and case record from public view: expunction and nondisclosure. An expunction is the complete erasure of the arrest and case record from government databases and down-line reporting companies. This expunction does not include stories that end up on sites like Yahoo! or Google. For example, even though O.J. Simpson would be eligible for an expunction had his case tried been in Texas, expunction would have been pointless because all the news stories about his case, both online and in print, do not fall under the Texas statute requiring removal of the record. An expunction is only available if a person is acquitted of the charge, the charge is dismissed (but not dismissed through a deferred adjudication) and the statute of limitations has run out, or the charge was pardoned by the governor’s office. There are also other factors, such as other felonies, that limit a person’s eligibility for an expunction.
Nondisclosure is a partial erasure of the record. It prohibits arrest and case information from being made available to the public but allows law enforcement and most state agencies to access it. Nondisclosure is only applicable to offenses where deferred adjudication community supervision (probation) was granted and the case was dismissed after its successful completion. After the case is dismissed, there is a five year wait for all felonies and a two-year wait for some misdemeanors, during which time the accused must not have any new convictions or probations, before a nondisclosure can be filed. Further, certain offenses, for example cases involving family violence, kidnapping or stalking, or cases that require sex offender registration, are not eligible for nondisclosure. Finally, nondisclosure is discretionary to the court where the original case was filed. Unlike with expunction where you either qualify or you don’t, there is no right to a nondisclosure. If the district attorney agrees, most judges will grant the nondisclosure. If the district attorney doesn’t agree, however, then it is up to the petitioner to prove that it is in the best interests of justice to grant the nondisclosure.
A person’s background check can be the difference between getting a job and not getting a job. It can affect many other things in one’s daily life. If you have been arrested for an offense and fall into one of the above categories, you should definitely take action to clear your record.