What is an expunction?
An expunction is available to a someone arrested for a crime, but never convicted, or to a person given deferred on a Class C misdemeanor. Expunctions are for arrests only, they serve as a way to have the arrest taken off of your record.
Once you discover that your arrest may be expunction eligible, your attorney will file a petition with the court. This petition lists all agencies and governmental entities that have any information of the arrest. Once this petition is filed, under Texas Code of Criminal Procedure Section 55.02, each agency or governmental entity named in the petition must be given notice of the expunction hearing.
What happens if the agency does not receive notice of the hearing?
Well, this is what happened in the 2017 5th District of Texas Court of Appeals case, Texas DPS v. Velazquez. A petition for expunction was filed with the trial court and the expunction was granted by the trial court. But, Texas DPS never received notice of the hearing that was conducted and filed an appeal of the expunction.
The trial court in this case explained that an expunction is a statutory privilege, and the person requesting the expunction must prove all the requirements are met. Because the statute specifies that each agency must have notice of the hearing and in this case Texas DPS was not notified, the trial court reversed the expunction.
If you are expunction eligible and plan to have an attorney file an expunction petition, have your attorney make certain each agency involved is given notice of the hearing, or your expunction could be reversed.