A Word Every Longhorn Should Know: Expunction


Photo Credit: Helen Brown | Daily Texan Staff

In the coming months, Congress is expected to vote on the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, a bill sponsored by Senator Kamala Harris and Representative Jerry Nadler. If passed, this legislation would essentially decriminalize marijuana at the federal level, offer support to cannabis entrepreneurs, allow more doctors to prescribe medical marijuana and incentivize states to expunge marijuana-related convictions from peoples’ records. 

This last piece is especially important. In most cases, it is almost impossible to remove a conviction from your record. In fact, I recently heard a young criminal justice advocate — a student at Texas A&M — discuss his shock at learning his marijuana felony conviction would always live on his record.  

For the past 15 years, I’ve worked as a criminal defense attorney and volunteered as a supervising lawyer for the Texas Law Expunction Project. Through my experience, I’ve seen my fair share of UT college students facing criminal charges. Whether they’ve been arrested for drug possession, DWI, assault or something else, they’re often terrified about the state of their future. Many ask me, “Will this charge be on my record forever?”

My answer: It depends.  

If you and your lawyer can avoid a conviction in your case, you may eventually be eligible for a legal procedure called an expunction, also referred to as an expungement. An expunction destroys all records of the arrest. In the eyes of the law, it’s as if the criminal charge never occurred. When you apply for a job or put in a rental application, you will not have to disclose the criminal charge, as it will not appear on a background check. Further, if you get arrested again, the new charge will be treated as your first, not second.

Of course, all of this is only true if the arrest is expunged. Many don’t know this, but both criminal charges and convictions can show up on background checks. So, even if your case was dismissed, the arrest will still show up your record unless you file for an expunction. The process is not automatic. You have to take charge. To apply for an expunction, you’ll need to hire a criminal defense lawyer. If you can’t afford one, UT’s School of Law offers free assistance through the Texas Law Expunction Project. Typically, people are not eligible for expunctions until at least two years have passed since the date of the arrest. 

The trickiest step in the process is to avoid a conviction — any conviction. Even if you plead to a lesser crime than the one you were arrested for, the outcome of a conviction will still leave you ineligible for expunction. Sometimes, accepting a conviction on a lesser charge may be your best move, but it’s important to be informed on what rights you lose when doing so.

Legal outcomes that would allow you to be eligible for an expunction include: 

  •  - Case dismissal
  •  - Trial acquittal
  •  - Pretrial diversion
  •  - Deferred prosecution
  •  - Grand jury issues a "no bill"

Depending on the details of the case and negotiations by your attorney, Travis County prosecutors are often willing to give students opportunities to avoid convictions, such as through special programs, classes and conditions. Yet, completing such requirements demands commitment and dedication. 

For busy students, it can be tempting to just get the case over with and accept a conviction, but remember, you must think long term. If you have the opportunity to avoid a conviction and you don’t take it, you will regret that decision later when you’re entering the job market. As exciting as the MORE Act is, there is no guarantee that federal legislation will come in and erase your conviction.  

Too often, people struggle to get ahead because of an unfair or incomplete criminal record. The MORE Act has my full support, but even if it passes — which is doubtful — it won’t help everybody. If you’ve been arrested, talk to your attorney about how to avoid a conviction if possible and preserve your right to an expunction. Fair or not, this could make the difference in how your future unfolds.

Chris Perri is a criminal defense attorney in Austin, Texas and a graduate of the UT School of Law.