The Texas Legislature has finally gotten around to closing a semi-truck-sized loophole in the rules relating to the expunging and sealing of criminal records. You will now be able to sue private companies who release or post your criminal record after it has been ordered expunged or sealed.

Here's how private criminal record collection companies have been able to screw over folks in the past:

Let's say you're riding around in the back seat of someone else's car with a bunch of other people. The car gets stopped by a cop, who finds a baggy of marijuana on the floorboard, which no one claims. Everyone goes to jail, including you. Now you've got an arrest for Possession of Marijuana on your record, even though you've never used the stuff yourself. Your lawyer gets the D.A. to dismiss the charge, but the arrest still shows up on a background search. So you shell out some more fees to your attorney, who goes back to court and gets the arrest expunged from your record. All the law enforcement and government agencies who had a record of the arrest go erase your info from their computers and destroy whatever paperwork they had. You just dodged a potential career-ending bullet, right?



Because our offices are located near several military bases, we sometimes represent members of the armed forces. We, of course, also represent many clients who are considering joining the military. Here are some things to remember about how a criminal case can affect your ability to serve in the military:

1. A RECRUITER CAN’T ASK FOR YOUR CASE TO BE DISMISSED. While a military recruiter can verify for a prosecutor that you would be accepted into the military but for your pending criminal case, a recruiter is prohibited by law from asking a prosecutor to dismiss your case.

2. TELL YOUR RECRUITER THAT YOU HAVE A CRIMINAL CASE PENDING. If you are serious about joining the military, be honest with your recruiter. If you want a recruiter to go to bat for you, then you want that recruiter to find out about your criminal case from you, not from a phone call from a lawyer.

3. YOU CAN’T JOIN THE MILITARY WHILE YOU HAVE A CRIMINAL CASE PENDING Even if you have not been convicted, you cannot join the military while your case is still pending in court. Your case must be dismissed before you can enlist.

4. YOU CAN’T JOIN THE MILITARY WHILE YOU ARE ON SUPERVISED PROBATION Likewise, the military won’t accept you until you have completed any court-ordered supervised probation that you receive as a result of your case.

5. YOUR CRIMINAL RECORD FOLLOWS YOU INTO THE MILITARY. Simply joining the military does not wipe the slate clean as far as your criminal record goes. Your criminal record remains even after you have joined the military, and it can affect the types of promotions and positions you can receive while in the military. For example, some types of criminal convictions might make if difficult for you to receive certain classes of security clearance.

6. THE FURTHER ALONG YOU ARE IN THE RECRUITMENT PROCESS, THE MORE SERIOUSLY A PROSECUTOR WILL TAKE IT. What a prosecutor wants to hear before he will dismiss a case for someone wanting to serve in the military, is that the person is ready to enlist (i.e., he has passed his physical and any tests, and is ready to sign a contract). Simply saying that you want to join the military when you haven’t even spoken to a recruiter won’t impress any prosecutors.

7. YOU ABSOLUTELY, POSITIVELY, EMPHATICALLY CANNOT HAVE ANY DISPOSITION THAT CONTAINS A FINDING OF FAMILY VIOLENCE Receiving a disposition in a criminal case that contains a finding that you committed an act of family violence restricts your ability to carry firearms under federal, not to mention Texas, law. If you are unable to carry a firearm, it does not matter if you are an accountant for the Air Force, your days in the military are numbered.

8. IF YOU ARE ALREADY IN THE MILITARY, MAKE SURE THAT A PLEA BARGAIN WILL NOT GET YOU “CHAPTERED OUT.” Convictions for some offenses will result in an automatic discharge from the military. The term “conviction” for the military might also include deferred adjudication for some offenses. Before accepting a deal in any case, always make sure that you are not accepting a plea bargain that will get you booted out of the service.

9. EVERY BRANCH OF THE MILITARY IS DIFFERENT WHEN IT COMES TO CONSIDERING YOUR CRIMINAL RECORD. Every branch of the military has different regulations concerning who will be accepted as a recruit, and who will not, based on a person’s criminal record. A criminal conviction that might keep someone from enlisting in, say, the Air Force, might not keep the same person from enlisting in the Army. Your recruiter can tell you the types of offenses that might prevent you for joining a particular branch of the military.

10. MILITARY PUNISHMENTS DON’T MAKE CIVILIAN PUNISHMENTS GO AWAY. Oftentimes when a member of the armed forces gets into trouble with the law off-base, he receives some form of punishment through the military. Although some prosecutors will take this into consideration when plea bargaining a case, the fact that the military has already handed down a punishment for the offense does not make the civilian court case go away.


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.

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