So You Got Arrested

Cleared: Navigating the Texas Criminal Record Maze

• BRCK Criminal Defense Attorneys

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0:00 | 32:15

The phrase "keep my record clean" is the #1 goal for almost everyone entering the justice system, but what does that actually mean in Texas? In this episode of So You Got Arrested, Jacob Lindberg and Steve Barrera of BRCK Criminal Defense pull back the curtain on the confusing world of criminal records, arrests, and the long-term consequences of "deals" that sound better than they are.

Key Topics Covered:

  • The "Permanent" Nature of an Arrest: Discover why a dismissed case doesn't automatically disappear. Jacob explains how an arrest creates a "global" record shared with the FBI and Texas DPS the moment you are booked—and why it stays there forever unless you take legal action.
  • The Truth About Deferred Adjudication: Many people believe deferred adjudication is a "total dismissal." The team breaks down why this is often a misconception, how it can still show up on background checks, and why it's a permanent bar for certain career paths and government base access.
  • Sealing vs. Clearing (Non-Disclosure vs. Expunction):
    • Non-Disclosure: Learn about "sealing" a record from the public, why it has a five-year waiting period for felonies, and why government agencies (like nursing boards or the bar) can still see right through it.
    • Expunction: The "Gold Standard" of record clearing. Find out who is truly eligible, the "black and white" rules of the process, and how an acquittal at trial can lead to a free expunction.
  • The "Trap" of Family Violence Findings: Why accepting a plea for family violence—even with deferred adjudication—can permanently strip you of your gun rights and prevent you from ever sealing your record.
  • Common Myths: Steve and Jacob debunk the "10-year rule" (records do not just fall off over time) and discuss the potential future of marijuana record reform in Texas.
"An expunction is a black and white process... you are either eligible or you are not. It’s the most important thing to clear your name, but you need an attorney who knows the intricacies." — Jacob Lindberg

Need to Clear Your Name?

If you have an old arrest holding you back or are currently facing charges in San Antonio or the surrounding areas, don't leave your future to chance.


SPEAKER_00

The Texas justice system is messy. So let's break it down. You're listening to So You Got Arrested, the podcast that tells you what really happens after an arrest. Hosted by BRIC Criminal Defense Attorneys. We talk to the people who've lived it, worked in it, and been shaped by it. Whether you're facing charges or just want to understand your rights, your options, and the smart moves that could change everything, we've got your back.

Arrest Data And Who Stores It

SPEAKER_02

Jacob, from time to time we get calls from people who have uh been arrested for an offense. And when we're talking about their case, we're talking about their goals for the case, they'll say something like, Hey, I got arrested for having a little bit of cocaine in my pocket. I'd like to keep my record clean. Okay. So uh is that always possible? Kind of what is well, first of all, let's talk about when somebody says, keep my record clean. What is their record? What's on a criminal record?

SPEAKER_03

Right. And that's kind of the confusing part of the whole thing because there's so many uses of language and words specifically that just don't apply to other places. And so you think about it, okay, a person gets arrested. There's your criminal record. That's what starts it. All right. And so that arrest will turn into uh that arrest, whether it be San Antonio Police Department, Bear County Sheriff's, uh, they're gonna have that record and they're gonna send it off to Texas Department of Public Safety.

SPEAKER_01

What's in that record?

SPEAKER_03

And really, all the record is gonna show is what the arrest was, right? So if you're arrested for assault, uh drug case of some sort, the cocaine would be a possession of a controlled substance. It'll show the identifying information of the person.

SPEAKER_02

Like fingerprints, booking photo.

SPEAKER_03

Yeah, those are like the more detailed ones. But then of course, like the date of birth, name, and then you have the issues of well, uh the person gave their siblings name, and now the case is in their name. There's all those types of issues as well. But uh, those records are stored by that arresting agency, sent to the larger agencies that have the kind of global kind of databases. Right. And that's going to be the Federal Bureau of Investigation, obviously the FBI records, and the Texas Department of Public Safety. Um, and those are the big agencies to keep track of. Those are obviously like the more permanent record keeping agencies rather than just a uh local law enforcement agency.

SPEAKER_02

So, you know, this is before the case is even filed. Just the mere act of being arrested creates a record under your name.

Court Filing Expands Your Footprint

SPEAKER_03

Right. And you always hear the common misconception was oh, my case was dismissed, or you will have a client, they'll say, Oh, I had this arrest in 2017, but it was dismissed, so it's not on my record. They're not going to see it. And that is not the case. Right. That arrest is on the record, and until that arrest is expunged or sealed, it is going to be on that record forever.

SPEAKER_02

So then uh let's say the case ends up, you know, in the fact scenario I gave you, the guy with cocaine, they send the cocaine off to the lab, test positive for cocaine. It weighs under a gram, so it's a low-level felony. But the case gets indicted by a grand jury and now it has to go to court. Does that create a record?

SPEAKER_03

Absolutely, except the different one. Now uh we kind of have created a longer string of people that have that record, right? So you think about it. At first we were dealing with an arrest record that the arresting agency had, and maybe just the district attorney's office. And now we've turned it into, well, the county clerk's office, the district clerk's office have both looked at it, had it in their things, they have their own file for you. The court now, right? We're filing it into the district court, let's say uh the 437th. And so now that district court has that file. They're all electronic now mostly. Uh, but each one of those agencies now has that file. And so it's spread across all these agencies. Um, and of course, you're having to go to court and deal with the case now that it's filed. Sure. Yeah.

Deferred Adjudication Demystified

SPEAKER_02

And so once the case gets into court, you have these records that have now been created. Let's say that the client um decides to take uh because this comes up a lot, somebody takes a form of probation known as deferred adjudication. What's deferred adjudication?

SPEAKER_03

Right. And that's always a difficult thing that people hear because I was actually in the hallway today and I got extremely frustrated and I bit my tongue. It kills me every time. But I heard in a defense attorney explaining deferred adjudication, they said, look, there's a term of probation where afterwards it's going to be dismissed. It's great. And it is great. It is a good program, but that's not the truth. That is not what deferred adjudication is. So deferred adjudication, you can look at the word specifically. We are deferring, holding off, not doing right now, pushing back, deferring, and adjudication. And that adjudication is the finding of guilt. So that finding of guilt never goes into place. A conviction never goes into place. And if you complete it successfully, your case is dismissed. Why did you use quote? Importantly, your case is dismissed. And that is in air quotes for our audio listeners. I put it in air quotes every time because it it's not a dismissal as if the court were to just get a case and dismiss it. Or we weren't to do anything, no probation, and they were to dismiss it, or you did a pretrial diversion and then they dismissed it. That's not what it is. It's a dismissal in that uh you were never convicted. If it's a felony offense like that possession of a controlled substance, it is not a uh you're not a felon, right? So it's a good for that situation, trust me.

SPEAKER_02

You're not a convicted felon.

SPEAKER_03

Right. It is still a great thing. You were never even convicted.

SPEAKER_02

So you know, to get to the topic that we're discussing, right? What does your record show? Does it just say dismissal?

SPEAKER_03

Exactly. And so the record's going to show possession of a controlled substance dismissed by deferred adjudication.

SPEAKER_02

By deferred adjudication. Right.

SPEAKER_03

And so most employers or most people nowadays know about deferred adjudication. It's common enough where a person can Google it. Whereas the other example, well, let's say those labs came back and uh it was not cocaine. It was actually just your baking soda. You keep it in small dime baggies out of convenience for you. Right.

SPEAKER_02

Um baker.

How Employers Read “Deferred”

SPEAKER_03

That's right. And you small cookies only. And uh, you know, in that situation, then the you know, charge would show dismissed and probably insufficient evidence or you know, lack of probable cause. It would show dismissed, but just by those reasons.

SPEAKER_02

And it's interesting because uh in a uh former life, a long, long time ago in a galaxy far, far away, I was a labor and employment lawyer. And I used to draft employment policies for companies. And uh one of the things that we would draft in our handbooks and our applications is we would specifically ask, have you ever received deferred adjudication? Right. So getting that deferred adjudication and getting dismissed, a lot of times is not going to be enough for an employer because they're they they know that that deferred adjudication dismissal is not the same as a regular dismissal.

SPEAKER_03

Yeah. And when we hear the phrase, you know, I want to keep it off my record, that's always the goal for every client. You know, the deferred adjudication, although it's great, you have a lot of good outcomes because of it. That's exactly one example of it's very much employer by employer. Even if, you know, so the next point we're gonna talk about is when you get that deferred adjudication, you can potentially seal it through a non-disclosure, which is different from an expunction. We'll get into that. But even after sealing it, sometimes some employers, depending on what it is, can still see it. And so again, with deferred adjudication, it's great, you're not convicted, still some issues and hiccups for the record.

Sealing With Non‑Disclosure Limits

SPEAKER_02

Well, and you're right, because I've had people come to me and say, you know, I I had a case, I got deferred adjudication, my lawyer said it wouldn't be on my record. And it's most certainly there. Yeah, most certainly it is. So you talked about um sealing a record. So if you get deferred adjudication, can you end up with a clear record?

SPEAKER_03

Yes, to an extent. And so that extent ends at government agencies. Okay. And so what I mean by that is uh let's say we do a deferred adjudication on a possession of a controlled substance, that would likely have a five-year waiting period after the probationary period. So let's talk about that. What do you mean? So person starts their probation, let's say we give them a two-year deferred adjudication, that's the minimum on that sentence. So they're on that deferred adjudication probation for two years. And they finish it up, clean drug tests, everything is all good. And then five years from when they finish, judge signs off on the discharge and the case is dismissed. Um, they can now then wait for five more years before they can actually file for a non-disclosure. Um, and that non-disclosure, you they would call our office, we would help start the process. And that's a document where we're filing it, and we're essentially saying, look, we're we're doing a contract with the court, saying it's a non-disclosure agreement. That's what it is, that's why it's labeled that. And so we're saying, look, public people, public agencies cannot see it. That's why it's sealed for non-disclosure, but government agencies, they keep it, they just can't disclose it to the public. So for our um people accused that have licenses, state licenses, state licenses, whether it be a bar card, of course, and an engineering license of some sort of teaching license, nurses, nurses, um, that ceiling, the record won't necessarily help them because that government agency they report to that's gonna be looking for their record, they're gonna still keep it. So it becomes a little bit more difficult depending on the career.

Family Violence And No‑Seal Rules

SPEAKER_02

Well, and I've had situations where I get guys like uh electricians and plumbers who maybe their company has a contract on a government base, right? And they say, Hey, I can't get on base because I took this deferred adjudication 10 years ago, they won't let me work. Can you help me? Can you get this cleared off my record? Yeah.

SPEAKER_03

And and another caveat that a lot of attorneys overlook is that non-disclosures will never come if the case had an affirmative finding of family violence. So if family violence was in place, so if this was an assault family violence on a domestic violence charge, uh, which we've touched on in previous episodes of the podcast, you know, that affirmative finding is just a finding by the judge that family violence has occurred. Right. Okay. If you accepted a deferred adjudication on that case, you know, there are certain judges here in Bear County that have done great work in saying, if you're on deferred adjudication, we don't want you to have that affirmative finding, we're gonna hold it in abeyance, just like we're holding that conviction in abeyance. So we're gonna hold off to see how you do. We're gonna hold off on it. You're not gonna have it, you're not gonna have a conviction or that family violence finding. But even at the end of it, if you didn't get it, you still can't seal that case. Because what does that record show? It shows assault, family violence of a family member dismissed by deferred adjudication. Right. It's gonna if we filed that non-disclosure DPS, everyone would send an attorney to come in and uh fight against us, the judge signing that non-disclosure.

SPEAKER_02

And even getting that non-disclosure doesn't do anything like restore your gun rights, which you lose as a consequence of having uh you know family violence on your record.

SPEAKER_03

That's exactly right. Yeah, there would be no way um to get rid of that. And so I hear attorneys again, I have to I don't buy my tongue on this one if I hear it, but I have heard attorneys say, um, oh yeah, we're doing this for education, it's great. And then uh they go up to the judge, and the judge is like, okay, well, did you talk about the affirmative finding of family violence with? And they're like, hey, Joe, uh, it's gonna have an affirmative finding of family violence. That's okay, right? And that I saw that literally in court. Right. And then he said, Yeah, yeah, great. Most people don't know what that means. What that means are the consequences of the city.

SPEAKER_02

They're relying on their attorney.

SPEAKER_03

And their attorney that that's came in and not explained anything to them, especially not that, which is the most important part of that plea. I stopped what was happening and had to tell them, no, no, no, that's not what's going to happen. And luckily the judge did the same. And so the attorney took the time to actually talk with the person, um, hopefully explained it correctly. And so, but again, that's one of those caveats that I think is often overlooked when it comes to deferred adjudication and dismiss charges.

Expunctions: Black‑And‑White Eligibility

SPEAKER_02

Well, and the other thing that comes up from time to time is there are certain offenses where you can receive deferred adjudication, like uh, you know, let's take a sex offense, uh, some maybe something involving a child in decency with a child, where you get deferred adjudication and technically the case is dismissed. But can you get that record sealed?

SPEAKER_03

No, you cannot. No, that's another one. And and you know, there's a whole list of the charges that can't get them. Uh the the attorneys that are often doing record clearing, they know them, right? And so sex offenses, certain um, you know, child cases can't. And so um those are the things that can't. And you know, the other benefit of it though, to kind of look at the flip side of it as well, is that certain convictions can be sealed, right? Misdemeanor, low-level misdemeanor offenses can be sealed even if it's a conviction probation, sometimes even if it's misdemeanor time served. Right. Um, and so that's an opportunity for a person where if they are convicted and now they can seal the record, I mean, that's something. That's great. I mean, that's in potential public.

SPEAKER_02

But didn't they change uh wasn't DWI affected by that a while back?

SPEAKER_03

It was, and I'd have to re-look to make sure I'm confirming correctly. Certain second DWIs and above 0.15s cannot be sealed, right? Right. Um, regardless of deferred. First time deferred still can. Okay. Right. And uh I'd have to look at first-time conviction. I'm almost positive you can still seal that after the waiting period. Yeah. Um, but it's a two-year waiting period on misdemeanor DWIs um after you're done with the probationary period. So um that's another very common case that when we see it, attorneys are calling often saying, Well, it's dismissed, it's great, you get to seal it. Or I'll even hear some attorneys say, Oh, you can expunge it afterwards. And it's like, I mean, the rage I feel inside. No, but knowing the details of it, I don't even I do blame the attorneys, especially for saying it out loud when you uh don't know. But also, it gets extremely in the weeds. So this is something that a lot of attorneys don't know about simply because of how complicated the law on the issue is.

SPEAKER_02

But it's inducing that client to sign for that for adjudication. Because their end goal is, well, I want my record clean. I need it clean for my job. If you're telling me I can get this expunged, let's do it. And then and then they call you you know, years down the road, say, hey, expunge my record.

SPEAKER_03

And it it is the worst conversation to have. They had this attorney, and I'm looking up the case, and I'm able to see who that previous attorney was, and they say, Well, I was never told that. I was told I can expunge it. I was told it was dismissed, I was told that all of these things, and I'm having to give those terrible news of look, this is potentially going to be on the record for the rest of your life. Um, and there's not even necessarily mechanisms for them to fix or amend that. There's no going back to court and asking for a retry. Right. Uh, that's just the way it is. And it's extremely frustrating for me in that position. Um, and that's why it's important that you always have a good attorney that lists that knows these intricacies, but also explains them to the person, knows what they're getting into, knows what they're signing up for.

SPEAKER_02

The the kind of attorneys you might find at Brit Criminal Defense. I hear that's a good that's where Mr. Lindbergh's employed. So uh we're up against our break. We'll come back with Jacob Lindbergh and Steve Barrera. This is So You Get Arrested.

Statutes Of Limitations And Barriers

SPEAKER_01

The attorneys at Brit Criminal Defense have helped over 5,000 clients move on with their lives. When an arrest or accusation turns your life upside down, we have the knowledge, experience, and integrity to get your life back on track. Traditional legal ethics, modern legal tactics, the best defense possible to get you through the criminal justice system. Search Brit Criminal Defense to see our reviews and find out why so many of our clients have trusted us to fight for them. Brit Criminal Defense, helping our clients move on with their lives.

SPEAKER_02

So we're back. We were talking about deferred adjudication and that uh non-disclosure agreement. Um, but when people say, Hey, I want my record clear after an arrest, really, if they want the record completely clear, what they need is an expunction.

SPEAKER_03

That's exactly right.

SPEAKER_02

Okay, what is an expunction?

SPEAKER_03

And so let's take the case we were talking about prior. The person gets arrested, they have a small amount of cocaine and it was baking powder, or again, they hired a good attorney and they ended up getting it dismissed. Uh, we were able to work with courts through some rehabilitation and have that charge dismissed, right? So uh now we are eligible or reaching eligibility for an expunction. And an expunction is a process where we talked about how once a case is filed, all of those agencies, those government bodies, have that record. Right. DPS record's disseminated. Clerk's office, everywhere. I mean, a lot of people have it. In fact, you know, every if a person was arrested in a different county and then it was transferred over to Bear County because of a warrant or whatever it might be.

SPEAKER_02

There could be 20 agencies.

SPEAKER_03

It could be endless, right? I mean, so the record has spread out, it's all over the place, obviously with FBI and DPS, and so the expunction process is saying, okay, I'm gonna file a civil petition. It's a civil case, not a criminal case. Almost like a lawsuit. Right. Almost like a lawsuit where we're saying we file it ex parte, meaning by ourselves, and so we're saying, um, okay, these are the agencies we believe um should be getting rid of this record. And then we put, of course, the justification as to why it should be expunged. Um, and that ranges, right? We we can talk about some of those examples, but we give that justification, we give the agencies we believe have the record, and we file that in the petition.

SPEAKER_02

Now, when you say justification, it it's not just gonna be something like, hey, Joe Bob's a nice guy. Right. There's very specific reasons that have to be listed.

Acquittals, Free Expunctions, Deadlines

SPEAKER_03

They're extremely specific. We're talking about intricacies for non-disclosures. That's more clear-cut than this one for expunctions. And luckily, maybe a year or two ago, the legislature did rewrite some of them. It is a little bit more clear-cut now. Unfortunately, they took away some of the factors that might have made a person eligible prior. Now there are a little bit less factors. Um, and so those factors are specific and they're unmoving. Okay. It is an expunction is a black and white process. It is you are eligible or you are not. Right. And so oftentimes there is a little bit of gray. There is one specific little bit of gray, and that's agreement from the prosecution, the district attorney's office, and a judge that's willing to hear that out and sign off on it, despite other government agencies that are going to come argue against it. Uh, for example, you know, you'll have a situation where a person may not be specifically eligible. If you signed up for a deferred adjudication, this is not your situation. This situation arises when uh we talked about child sex offenses, right? And those are dismissed because people are innocent of those offenses. People are arrested even though they're fully innocent and there's not enough evidence. And so what we do is, okay, this charge was dismissed, fantastic. Some of those offenses don't even have a statute of limitations.

SPEAKER_02

And so what Jacob's referring to is um for some offenses, the they could be refiled at any time. Right. And that's the statute of limitations. And while that case is eligible to be refiled, you cannot have it expunged. And so if it's, you know, uh an indefinite statute of limitations, then technically you're never eligible for an expunction, even if your case was dismissed. Even if the DA's office said, hey, this was a bogus charge, bogus arrest, somebody made something up, false allegation. Technically, you're still not eligible to have that removed from your record.

SPEAKER_03

Right. Because one of those factors is okay, dismissed is step one, fantastic. Step two, has the statute of limitations are in. No. Um, and there are other things, right? Again, this all comes down to language, and we won't go too much in the weeds, but there's another question of was it dismissed or was it rejected? Because then we don't have to necessarily wait the statute of limitations. But in this situation, it's dismissed, it was filed in the court. Uh, we were getting ready, geared up for trial, whether it be a murder or another case that doesn't have a statute of limitations.

SPEAKER_02

So now you have the arrest record, you have the record of it being filed, it's all over the place.

SPEAKER_03

Right. Yep. And you were arrested on it three times because you're moving all over the state or cities or whatever. And so um, you know, now we have a situation where um we're going to have to file that expunction, but get kind of an agreement from uh the DA's office, okay. But DPS is likely going to come and send an attorney to say this person's not eligible, Judge. Right. Um and so when I talked about at the beginning that petition, those people that we're serving, we set a hearing for that expunction, that petition for expunction anywhere between 45 to 60 days out. And the reason for that is to get notice out to all of them.

SPEAKER_02

And unfortunately, we send a notice to each agency so they have a chance to respond.

SPEAKER_03

Exactly. And you know, we pay for that notice and they all get served, and then um if they want to respond, we're also serving them with uh setting the hearing, right? We have a hearing date.

Rejections vs Dismissals Waiting Periods

SPEAKER_02

We're gonna be in court on this date if you you know speak now or forever hold your peace, and then they have to show up on that day.

SPEAKER_03

Right. And you know, I always mention DPS with it because they're the main agency outside of the DA's office.

SPEAKER_02

They're the clearinghouse for the criminal records here in the state of Texas.

SPEAKER_03

Exactly. And you know, FBI is kind of federally, right? But I have yet to deal with one of their lawyers coming into court and objecting. It's always DPS. Uh yeah, and it's always DPS, and they'll come in and you know, again, so DPS uh an expunction being black and white, they are the agency that comes in and says, no, no, they're trying to file one either that's not eligible, doesn't fall within those factors, or they're trying to file a gray one, and so we're they're coming in to say, no, that's not eligible. Right. And the judge always takes those into consideration. Right.

SPEAKER_02

So the so in that scenario, we were talking about a situation where maybe you know the uh cocaine comes back and it's baking powder. Okay. Let's take a scenario where the client uh and uh counsel say, Hey, uh, this case needs to be tried. The DA's office refuses to dismiss. Maybe it did test positive for cocaine, but it was found in an area that wasn't controlled by the client. Um you take Case to trial, the client is acquitted. Okay. So now you have this record of arrest, the case has been filed, the client's been acquitted. Um first of all, what would their record show in that scenario?

Pretrial Diversion And Fast Relief

SPEAKER_03

It would show possession of a controlled substance not guilty by jury, which is great. That's your favorite thing to see. Um and that label means it's time to jump on the ball quickly because there is 30 days to file for a petition for expunction. And the expunction process is expensive. Normally we're telling all of these agencies that have your record and paying for each and every single one of them to be served twice. We're paying for it during the petition side and the order side.

SPEAKER_02

So because the order is just after the judge grants it. Correct. Then the judge is telling them, go ahead and destroy this record. Exactly. And you got to get it out to all those agencies.

SPEAKER_03

Yep. That petition is telling them, hey, we believe this is eligible. And then after the court, you know, in court when we have the hearing, judge signs that order saying, you need to get rid of this, and we send that to them so that they know to do it. Then they have 45 days to destroy it. And then if a person is acquitted, right, those filing fees don't go into place. So it's a free expunction, right? You don't have to pay for the case. As it should be, right?

SPEAKER_02

Because being acquitted means that, you know, you they had their case against you, they couldn't meet their burden, you were found not guilty. You shouldn't have to pay filing fees.

SPEAKER_03

Those are my favorite kinds of expunctions, right? Because it's it's the most rewarding part of the process, too. It's that final step in saying, I truly was wrongfully accused, and now I get to move on with the rest of my life. Um, and in reality, though, the legislature has written the ideal that expunctions are reserved for those wrongfully arrested only. So if you have a um charge and let's say it was cocaine, okay, and that person does pretrial diversion. It's a program where you do a probationary period similar to deferred adjudication, and at the end of it, it's dismissed. Stephen, you'll notice I'm not putting air quotes. It's actually dismissed. The pretrial diversion is great. Um, and it's actually dismissed. You can get an expunction soon after. Some areas hold a waiting period. Um, and so we can file for that expunction quickly. Well, in that situation, you know, we may not have been wrongfully arrested, may not have been wrongfully accused. But now with this expunction, they can live the rest of their life with it off their record. And we can pretend as if that truly was a wrongful arrest. Right. And so that's the benefit of the expunction process, is person really is clearing their name.

SPEAKER_02

So we had talked earlier about, you know, if the case is just straight out dismissed and this you have to wait for the statute of limitations. Um, but then you said, hey, if you go to trial and you're acquitted, you have to do it within 30 days. Right. So does the statute of limitations not apply at that point?

Strategy: Fastest Path To Clean

SPEAKER_03

It does not apply. That's no longer a factor you consider. And just like there are other times where statute of limitations won't apply. Another one is if a case is rejected. What that means is uh you get arrested for the possession of conco controlled substance here, cocaine, and now the district attorney's office gets it. They get those labs that it's baking powder or creatine for a lifter, and now they're saying, okay, well, we're gonna reject it. It shouldn't be filed, it shouldn't go to court. Um, so we're just gonna go ahead and reject it. All right. And that language is it has the same effect as a dismissal, but it's a different word and it means a different thing. And so the different part of it is that uh for expunction purposes, if it's a felony offense, you only have to wait three years before you can expunge it after it's rejected. Right. So um, you know, you're arrested in January of 2025, you can go ahead and expunge it January of 2028.

SPEAKER_02

So let's talk about you had mentioned a pretrial diversion.

SPEAKER_03

Yep.

SPEAKER_02

And you said, hey, it's this program, you know, it's kind of similar to a short probation. And at the end of it, you're entitled to an expunction. Is there a waiting period for that? Aaron Powell It depends on the county that you're in. Aaron Powell Well, let's talk about state law. But let's set individual county policies aside. Yeah. According to state law, is there a waiting period?

SPEAKER_03

Aaron Powell It wouldn't necessarily have one because the difference is um when it's a pretrial diversion dismissal, that's the justification for it. So in that petition, we're not putting uh this person's a nice guy, they it should be off his record. We're putting they completed a pretrial diversion process.

SPEAKER_02

But but I do know that there are some counties, and and I've had to do this before, when your client signs that pretrial diversion agreement, they say you're entitled to an expunction one year after completion of this program.

SPEAKER_03

Yeah.

SPEAKER_02

Right. Um but if it doesn't have that language, then you're eligible almost immediately.

SPEAKER_03

Aaron Powell Immediately. Yeah. And I mean, here in Bear County, for example, we've had it to where a person was arrested in February of last year. They did a six-month pretrial diversion and it was expunged from the record in I think September of that same year, right? The quick expunction and also quick pretrial diversion, getting them kind of in and out. And so it was a total of eight months or so, nine months on their record. And then after that, it's completely gone.

When Old Convictions Can’t Be Cleared

SPEAKER_02

Well, and we've had these, you know, kind of weird scenarios come up just because the way the laws work. Um I had a uh an assault, bodily injury, family violence, where a son was accused of assaulting his father, and the son was about to leave for college. And the father, you know, his position was look, this was kind of a mutual thing that got out of hand. We kind of started shoving each other. Uh, you know, somebody else called law enforcement. It wasn't us. He's about to go off to college. I don't want this on his record going off to college. And so uh he wanted the fastest way to get his record clean. And so we were in a position where we could have waited it out for a dismissal, or we could just sign up for this pretrial diversion. Yeah. And as crazy as it sounds, the pretrial diversion was the better option for him because waiting out the dismissal, uh, he would have had to have wait, waited for two years. I think now is it three years? Three years. It's now three years for assault family violence. Back then it was two years. He would have had to wait two years to have his record expunged. But by doing the pretrial diversion, he was eligible immediately as soon as he completed it.

SPEAKER_03

And if it's a shorter pretrial diversion, it's almost much better. Six months. Yeah, you have a client where you know it's not going to be an issue and they're not gonna have a new arrest or something like that, where this was really just a misunderstanding, right? Um, sometimes it's the better option. You're in between a rock and a horror place with decisions there. It's two good decisions, though. It's kind of do we push this to a trial setting where it's gonna be dismissed or acquitted? Um, or do we kind of accept this pretrial diversion and get it done in your six to nine months? And then it's completely erased. Um yeah, that's a conversation I'm often having, trying to decide.

Future Changes And Getting Help

SPEAKER_02

And so we've talked about these different scenarios like deferred adjudication. We've talked about um, you know, having the case just dismissed for insufficient evidence, you know, we've talked about acquittal at trial, we've talked about um doing a pretrial diversion program. I've had calls in the past, and like you said, these are always tough calls from someone, you know, will call me, they're in their 40s or their 50s, and they say, Hey, I'm up for this promotion at work. Back when I was 18, I took probation on a marijuana case, whatever it is, and it's a regular probation with a conviction. Can you help me get my record clean? Right. Is there anything we can do?

SPEAKER_03

Unfortunately not. You know, and unfortunately you made me answer that part of it. I was hoping you would say the the mean part. But no, you know, if you have I get these calls all the time. It's you know, like exactly pretty much what you've said, where they've had this on their record, they're a young child when it happened, and now it's still there. It's a conviction, or even if it's a deferred adjudication, follows you around. And it's there's no way right now. I always tell them right now, if the law changes, uh you'll be the first one I call. But as far as right now goes, any conviction of things like that just cannot be expunged.

SPEAKER_02

I don't know if you get this question. I used to get it all the time, but people would say, Well, isn't it true that after 10 years it falls off my record? Right.

SPEAKER_03

Have you ever been asked that? Always. And I mean, again, that's this so the common misconception is it was dismissed, it's off my record now. Or oh, that was 20 years ago, it should be gone by now. And it's not. The FBI was together then, it's gonna be together tomorrow. So it's gonna have that record forever. Same with DPS, they're gonna hold on to it. And the other thing is again, unless the law changes, unless eligibility changes, for example, with the federal regulations against marijuana, right? We could see in the next 10, 5 to 10 years, hopefully uh marijuana becoming legalized, and then people with low-level offenses, low amounts, whether it be a conviction, deferred education, whatever, ability to go in and expunge those records. We've seen other states do it. Um, and I hope to be able to do that here in Texas and clear all those records. It is the most important thing to clear your name. And although it's extremely complicated and intricate to the point that certain attorneys don't even deal with it, um, you need a good attorney to help you work through it, through the process to clear your record.

Final CTA And Subscribe

SPEAKER_02

Well, and you know, we're fortunate at Brick Criminal Defense that we have Mr. Lindbergh, who has, you know, taken on the uh the duty of familiarizing himself with all of these intricacies in this law. So if you ever have questions about anything like that, you want to get your record clean, you've listened to this podcast, you say, hey, I think I might be eligible, I want to talk to somebody about that. Let's call Jacob Lindbergh at Brit Criminal Defense. You can reach us at 210-874-5080. If you ever find yourself in a tough situation where it seems like your life's falling apart, we're the guys that can help you put it back together again. Thank you for listening. Thanks.

SPEAKER_00

Thanks for listening to Don't You Got Arrested. If you found this podcast helpful, share it with someone who needs to hear it. For more legal insights and real talk from the front lines of the Texas justice system. Follow us and subscribe. And remember, Brick Criminal Defense has your back. For more information, visit us at brckadefense.com.