Let me explain this a little bit more. In 2011 I was charged with DUI, but I was never convicted because it was dismissed. Two years later I seeked an expungement and spoke with a lawyer. I ended up getting a signed order of expungement and now Im just wondering what happens next? It was signed on September 30th, so almost two months ago, here in Texas. What do the courts do? What about DPS? My lawyer tells me that an FBI background check will not show this. Is that true? I ask because I eventually want to be a nurse, so I don't know if the boards can see this expunged case?
Here is the effect of an expunction, copied directly from the Code of Criminal Procedure:
When the order of expunction is final:
(1) the release, maintenance, dissemination, or use of the expunged records and files for any purpose is prohibited;
(2) except as provided in Subdivision (3) of this article, the person arrested may deny the occurrence of the arrest and the existence of the expunction order; and
(3) the person arrested or any other person, when questioned under oath in a criminal proceeding about an arrest for which the records have been expunged, may state only that the matter in question has been expunged.
The expuntion order itself usually directs the clerk to collect all the records pertaining to the case and then destroy them. As the order comes from a Texas judge, all state agencies must comply. However the FBI is not bound by this order. That being said, they may voluntarily comply. It also should be noted that because this was a Class C misdemeanor, your case may not have ever been reported to a federal database in the first place.
A valid Texas Expunction Order requires Texas public agencies that are listed in the Order to remove or destroy your arrest record. As soon as the Order is signed by a judge, you have the legal right to deny the occurrence of the arrest but the physical removal of the records from databases and file folders may take a few months. Your attorney should contact the District Clerk's Office periodically to ensure that every agency that received the Order has complied with it either by physically returning the arrest records to the District Clerk or certifying with the Clerk that the records have been destroyed. If any agency fails to comply, your attorney must contact them immediately to bring this to their attention.
Federal Law Enforcement agencies like the FBI, DEA, and ICE (formerly INS) are not required to comply with state expunction statutes and they will maintain your arrest records despite an Expunction Order to the contrary. That means that an FBI background check will show your arrest record. In fact, in some cases, a conviction expunged under state law remains a conviction for purposes of federal law, see Ramirez-Castro v. I.N.S. 287 F.3d 1172, 1175 (C.A.9,2002).
Perhaps as important however is the fact that private businesses that publish criminal history information are not required to comply with state expunction statutes and they will ordinarily choose to continue disclosing your arrest records. As a practical matter however, these businesses regularly refresh their data and, after a period of time, the expunged criminal history information from Texas DPS will not reflect your arrest information. These businesses may sometimes voluntarily agree to remove your criminal history information if you provide them with a certified copy of the Expunction order.
No expunction is bullet proof and there is always a risk that others may find out about the arrest. The decision as to whether to disclose an expunged arrest is a matter that needs to be carefully scrutinized after considering the legal requirements, the precise questions being asked, and the potential for discovery of the arrest records despite the expunction. For instance, if an employer discovers an undisclosed arrest and questions you about it, they may be more disappointed by the lack of disclosure that the arrest itself. It is sometimes more advantageous to report that you were arrested, that the case was dismissed, quashed, or acquitted, that you expunged the records, and that you didn't have to report it but in all candor wanted the employer to know. This approach requires a careful weighing of factors to come up with the best decision.
The other lawyers are correct, but you also need to know that your arrest information is spread around the internet by agencies who are not required to comply with the expungement, much less find it. You need to find them and send them a copy of the expunction, hoping they will respect it and remove the listing. Won't do you much good to have an expunction if your arrest will still show up on routine background checks. The good news is that you can lie your head off denying that the arrest was you, but with pictures of you on the internet with details about the arrest, that won't do you any good.
The expungement should cover the issue. Their are a few ways of verifying that the information has been erased. You can phone individual agencies and check the clerks website online. The Nursing Boards actually suggest sending them the excpunction order if you are unsure if the records have been cleared. It seams counter productive, but they are more worried about you lying to them, than anything else.
Get free answers from experienced attorneys.
31,014 answers this week
3,139 attorneys answering
Don't speak legalese? We define thousands of terms in plain English.Browse our legal dictionary