Got a call from someone trying to get an expunction of criminal records recently, and got a question that is becoming more common, and for which there isn’t a clear answer:  ”Can you get a criminal record of a case expunged if you were never actually arrested for the offense?”

This issue is becoming more important because of the way in which the expunction statute is worded and the way that criminal background checks are now conducted.  Chapter 55 of the Texas Code of Criminal Procedure provides that, in some instances, you can get an expunction of records associated with a custodial or noncustodial arrest (I’ve been waiting twenty years to witness a “noncustodial” arrest.).  But let’s say you are charged with misdemeanor Theft by Check and, instead of arresting you, the court simply issues you a summons to appear?  The case, which the court posts on its local county website (a very common practice these days), is later dismissed.  Years later, you apply for a job, have a background check done, and the company performing the check finds the record of the case through the public access website.  Obviously, you don’t want this to pop up the next time you apply for a job.  But since you were never arrested, how do get your records expunged?  After all, the expunction statute only provides for erasing records associated with actual arrests.

Unfortunately, there is no clear answer.  Back when the expunction statute was written, the Legislature really didn’t anticipate how criminal background checks would be performed in the age of the internet.  It was simply assumed that the only records that anyone would find (other than law enforcement) would be records tied to actual arrests.  This just isn’t how it works in the real world anymore.

So what do you do?  File for the expunction anyway.  Many prosecutors’ offices won’t object and many judges won’t care as long as you otherwise qualify for an expunction.  The worst that can happen is that the court can say “No.”  Given what an expunction is worth in terms of finding a job, it’s worth taking a shot.  In the meantime, let’s hope the Legislature gets around to dragging the expunction statute into the 21st Century.

September is the month that a new law goes into effect concerning the use of deferred adjudication probation as a reason for denying, uspending or revoking someone’s professional license.  Unfortunately, the text of the new statute spills a lot of ink without really changing very much.

One of the main concerns our clients have is how a deferred adjudication on their records may affect their ability to obtain, and keep, a professional license.  Many of the laws that govern whether or not someone is eligible to have a professional license in Texas permit a licensing agency to deny a professional license to someone if they receive deferred adjudication for certain types of offenses.  House Bill 2808 from the last legislative session seeks, at first blush, to change all of this.  The new law states that a licensing authority may not consider a successfully completed deferred adjudication for the purposes of granting or yanking a license.

However, the exceptions in the new law are so broad that it’s hard to see how anything changes.  The statute specifically allows state agencies to consider a deferred adjudication the same as a conviction for licensing purposes if the employment being regulated involves law enforcement, public health, education, safety services or financial services.

I don’t know about other defense lawyers, but the only clients I get coming to me on a regular basis worrying about how a deferred adjudication will affect their professional licenses ARE people working in law enforcement, public health, education, safety and financial services.  What’s left?
Maybe now you can clear that last hurdle to get your cosmetology certificate.  Other than that, you’re still screwed.  Thanks Texas Lege.  Thanks for nothing.