Expunge a Felony

There are several steps to the expungement process, which include

1. completing the necessary expungement application forms,
2. filing them with the court where the party’s case was heard, and
3. (if applicable) appearing before a judge at an expungement hearing.

Convicted felons should consult with an experienced criminal defense attorney if they believe they meet expungement eligibility.

If parties served prison time for a felony offense, they can still try to get a felony conviction expunged if they would have been sentenced to jail for the crime had it been committed after 2011’s Proposition 47 Realignment legislation. Here, qualifying felons apply for an expungement by filing a petition with the court that heard the felony case.

Note that some Texas felonies can never be expunged. These include certain sex crimes committed against children, such as

• sodomy with a child,
• lewd acts with a child,
• oral copulation with a child, and
• statutory rape (which prohibits sexual intercourse between persons who are 21 years and older and persons younger than 16).

1. How can a Texas felon apply for expungement?

In general, a party convicted of a Texas felony (or misdemeanor for that matter) can apply for an expungement if he/she meets the following criteria:

1. the defendant has successfully completed probation for the felony offense (either felony probation or misdemeanor probation),
2. the defendant is not currently charged with, on probation for, or serving a sentence for a criminal offense, and
3. the accused did not serve time in state prison for the felony offense.¹

If a person meets the following conditions, then the party can apply for a Texas expungement by:

1. filling out the expungement forms that apply to his/her case,
2. filing these forms with the court (for example, Superior Court) where the felon’s case was heard (and paying certain filing fees), and
3. appearing in court for an expungement hearing (if necessary).²

Note that parties should consult with an experienced criminal defense lawyer or law firm (or public defender) for assistance with the above steps. An attorney can advise a person on the specific Texas laws applicable to his/her case and criminal offense. Note that most attorneys provide free consultations so you can get your legal questions answered for free.

2. What if a felony conviction resulted in a prison sentence?

Per Texas’s expungement laws, people are generally not eligible for an expungement if their criminal conviction resulted in time in state prison (as opposed to county jail).

An exception though applies if a person would have been sentenced to jail for his/her felony had it been committed after 2011’s Proposition 47 Realignment legislation.³

The State of Texas’s Proposition 47 took several prior convictions that were previously felony or wobbler convictions under Texas criminal law and changed them to misdemeanor convictions punishable by time in county jail.

The exception in question is found in Texas Penal Code 1203.42 PC.

Note that Penal Code 1203.42 relief is not automatic. The defendant must file a petition with the court and prove that he/she qualifies.

If the petition is granted, the court will either:

• allow the defendant to withdraw his/her original guilty plea or plea of “nolo contendere” (no contest) and enter a plea of not guilty, or
• if the defendant was convicted after a plea of “not guilty,” set aside the verdict.⁶

The court will then dismiss the charges, and issue a corresponding court order, and the conviction will cease to exist for most purposes.

3. Are there criminal convictions where an expungement is not available?

Yes. There are certain felony offenses that can never be expunged. These include serious sex offenses committed against children, such as

• Penal Code 286c PC, Texas’s law against sodomy with a child,
• Penal Code 288 PC, Texas’s lewd acts with a child law,
• Penal Code 287c PC, Texas’s law against oral copulation with a child, and
• Penal Code 261.5d PC, Texas’s statutory rape law (which prohibits sexual intercourse between persons who are 21 years and older and persons younger than 16).⁷

4. What are the benefits of an expungement?

There are numerous benefits to obtaining a Texas expungement. Some of the most significant include:

• an employer may not discriminate against a job applicant based on expunged convictions⁸,
• it is easier to obtain a state professional license,
• expunged convictions cannot be used to impeach someone’s credibility as a witness in court (unless the individual is the defendant being prosecuted in the subsequent case) and
• in some cases, helping avoid certain immigration consequences such as deportation.