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.