12-1
CHAPTER 12
DWI EXPUNCTIONS
I. Introduction
§12:01 Purpose of Expunction
§12:02 Educating Your Client
II. When Is a DWI Eligible for Expunction?
§12:10 In General
A. Acquittals, Pardons, and Overturned Convictions
§12:20 Expunctions after Acquittal
§12:21 Timeline for Expunction of Acquittals
§12:22 Pardons
§12:23 Overturned Convictions
B. Charges Not Filed or Formally Filed and Subsequently Dismissed
§12:30 Entitlement to Expunction
§12:31 The Statute of Limitations Issue
§12:32 Waiting Period Issue
III. Procedure
§12:40 Basics
§12:41 When Petition May Include More Than One Arrest
§12:42 Drafting the Petition in General
§12:43 Who Seeks Expunction
§12:44 What Petitioner Wants to Expunge and From Whom Relief Is Requested
§12:45 Why Petitioner Is Entitled to Expunction
§12:46 Review and Signing
§12:47 Attachments
§12:48 Hearing and Notice
§12:49 Drafting the Order
§12:50 State’s Response and the Day of the Hearing
IV. Potential Problems and Partial Expunctions
§12:60 Situation #1: Client Offered Plea to Different Offense
§12:61 Situation #2: Acquitted Client Subject to Prosecution for Another Offense
§12:62 Situation #3: Client Charged With DWI and Another Charge, But the Other
Charge Is Dismissed
V. Effect of Expunction and Remedies for Violation
§12:70 Effect
§12:71 Consequences of Violating an Expunction Order
Texas DWI Manual 12-2
VI. Forms
12-1 Verified Petition for Expunction—Acquittal
12-2 Order Expunction—Acquittal
12-3 Verified Petition for Expunction—Case Not Filed
12-4 Order for Expunction—Case Not Filed
12-5 Verified Petition for Expunction—Dismissal
12-6 Order for Expunction—Dismissal
12-7 Letter to DPS Requesting Removal of Records
12-8 Letter to Public Data Requesting Removal of Records
12-3 DWI Expunctions §12:20
I. Introduction
§12:01 Purpose of Expunction
Texas Code of Criminal Procedure Article 55 allows certain DWI cases to be expunged if the defendant
is found not-guilty or the DWI case is declined or dismissed. A DWI defendant may also expunge an arrest
even if convicted so long as the defendant is subsequently pardoned or receives an acquittal from the Court
of Criminal Appeals.
§12:02 Educating Your Client
It is the inherent responsibility of the criminal defense attorney to make sure our clients understand that
their arrest or criminal court records are public record. Our clients should also understand that unless these
records are expunged or sealed, any person may walk into any district or county clerk’s office in Texas and
obtain their criminal court records. Even if the arrest did not result in a court proceeding, unless our clients
file a petition to expunge and obtain expunction of the records, a public information request can produce
any arrest record.
I cannot recount how many individuals have contacted my office to inform me that they believed that if
their case was declined, dismissed, never filed, or they were found not guilty, such records would no longer
exist. We must educate our clients so they understand the process by which the State collects such data:
Records relating to an arrest or a criminal charge are created at the time of arrest and forwarded to the
Texas Department of Public Safety (DPS). DPS in turn maintains a database referred to as the Texas Crime
Information Center (“TCIC”). TCIC tracks arrests and dispositions of cases that follow an arrest. DPS also
provides this information to the Federal Bureau of Investigation (FBI), and the FBI places it on the national
criminal information system referred to as the National Crime Information Center (“NCIC”). In addition to
TCIC and NCIC, all county and district clerks maintain local computerized databases and in some cases
public websites that contain records of arrests and case dispositions.
Due to the Texas Open Records Act, even arrests that were never formally charged by a district or
county attorney may be obtained by the public for private use. Such information is used during the course
of employment background investigations, apartment leasing, and other criminal background checks.
Such records may be forever erased or deleted by way of a formal order of expunction.
[§12:03-12:09 Reserved]
II. When Is a DWI Eligible for Expunction?
§12:10 In General
In discussing what types of records may be expunged, this chapter focuses on DWI expunctions, where
the DWI charge is the only charge that occurred during the criminal episode. Expunctions are governed by
Texas Code of Criminal Procedure Article 55.
[§12:11-12:19 Reserved]
A. Acquittals, Pardons, and Overturned Convictions
§12:20 Expunctions after Acquittal
A person who has been placed under custodial or noncustodial arrest for a felony or misdemeanor DWI
offense is entitled to have all records and files relating to the arrest expunged if the person is tried for the
offense and is acquitted. [Tex. Code Crim. Proc. Art. 55.01(a)(1)(A).] A case that results in a “not guilty”
verdict has no waiting period for eligibility. Although a petition for expunction is required, if the petition
is filed within 30 days after the verdict, no hearing is required, and no filing fee is required to be paid by
your client. [Tex. Code Crim. Proc. Art 55.01 (a)(1)(A) & Art. 55.02 §1.]
