According to a Yahoo! News story, one in four Americans, or approximately 65 million, have a criminal history that eliminates them from procuring a job. The article cites employers who automatically disqualify potential candidates for having a felony or misdemeanor conviction. In times of high unemployment and fewer available jobs, it is apparent that a youthful indiscretion, or a mistake in judgment means finding a job even more unlikely. If an employer or HR manager has two qualified candidates, one with a criminal history, and one with a clean history, the latter may get preference, leaving the former perpetually unemployed. Whether this form of discrimination (yes, it is discrimination) is legal is another topic. I’m focusing on your ability to clean up your criminal history when possible so you can avoid the above situation.
One of the most common questions asked is how do I get such and such off my record? Or, Can I get my conviction expunged? The answer is often complicated and uncertain. If you have ever been arrested for anything, you probably have some sort of blemish on your criminal history, even if you weren’t convicted. We’re not talking about speeding tickets or traffic violations that may appear on your driving record, you’re criminal history is a separate set of information maintained by the Texas Department of Public Safety and by the FBI on the federal level. Some offshore private companies also keep a database containing this information.
If you have ever seen a criminal history report, it contains a lot of information that is generated whenever someone is arrested. This means, you have a criminal history simply for getting arrested, not convicted. The report has the offense date, location, charge information, arresting agency, and disposition of the case. In Texas, there are two vehicles used to extract arrest information from a criminal history. The most common and desirable method is an order of expunction. If an individual doesn’t qualify for an expunction, they may be eligible for an Order of Non-Disclosure. However, unless you were subsequently pardoned, no convictions may be expunged or ordered to be non-disclosed. A conviction means a judge found you guilty of the offense charged. This includes guilty or no contest pleas where there was no deferred adjudication. If you have been convicted of anything, that offense cannot be cleared off your criminal history, ever. Only cases resulting in dismissals, acquittals, or pardons are eligible for an expunction and/or orders of non-disclosure.
Here is a basic list of the requirements to determine eligibility for each:
EXPUNCTIONS:
-Person released from jail
-Charge no longer pending
-No resulting conviction
-no community supervision (probation) for anything other that than a class C misdemeanor
-no felony conviction for previous 5 year period
* Felony charges carry the additional requirements: indictment not presented or indictment presented and dismissed/quashed because of mistake or lack of probable cause and statute of limitations have expired
ORDERS FOR NON-DISCLOSURE:
-Received deferred adjudication probation
-guilty or no contest plea entered
-Judge has deferred further proceedings without a finding of guilt
-Successful discharge from probation and charge has been dismissed
-2 years have passed since discharge on most misdemeanors (several have no waiting period)
*Felonies have same requirements plus a 5 year waiting period after discharge from probation
This is a very basic list and there are some potential complicating factors that are not discussed here. Assuming you qualify for one of the above, what is purpose of going through this process? The effect of an expunction is that you can legally deny the occurrence of the arrest and the expunction order. An expunction also requires the destruction of all the records relating to the arrest and prosecution and expunction. The effect of an Order for Non-Disclosure is very similar in that it allows you to legally deny the existence of the arrest and prosecution, but the files are not destroyed and the information can still be used against you in a subsequent prosecution for another charge.
If you have a criminal history, and the charge was dismissed, or you were acquitted, that information is supposed to be listed under the disposition on your history report. There are two problems with this. First, DPS doesn’t always have the correct information, either they were never updated or they simply didn’t record it correctly. In these situations, your disposition will read “Held” or “Pending”, neither suggesting the case was dismissed or you were acquitted. Second, the files and information still exist and are considered matters of public record for all future employers to gain access. Even though you were not convicted, there still is a Probable Cause affidavit in a clerk’s file that is accusing you of some very nasty things.
There is a lot of pending legislation in Austin right now that could potentially affect the requirements of Expunctions and Non-Disclosures. There are changes every legislative session it seems. I have successfully handled expunctions and orders of non-disclosure, including appeals of these issues. Let me know as soon as possible if I can help you with one or the other.