Employment background checks are common in Texas employment situations from applicant background checks to licensing and promotion screening during employment. Employment background checks can uncover unsavory details from the past ranging from relatively inconsequential misdemeanors to arrests for felonies. Today’s job market is a buyer’s market. Employers have lots of opportunities to hire or promote well qualified candidates. Any smudge on a record can be enough to put your resume on the bottom of the pile.

These same employment background checks can harm an individual’s opportunities to obtain licensing to engage in a number of jobs such as teaching, nursing, legal services and across the financial services industry. Fortunately, Texas law provides some mechanisms to remove certain criminal records from those background checks. These mechanisms can be confusing. The processes often involve understanding how the local prosecutors and judges treat these requests for expunction or nondisclosure. Working with a Texas employment lawyer can help make the process easier and faster.

Why Remove Criminal Records from Your Background in Texas

Many applications ask if you have a history as arrested for, convicted of, or obtained deferred adjudication of a criminal offense. These questions are a double-edge sword for the applicant. If you should answer the question yes and you answer yes then the employer already knows your dirty laundry without performing a background check and that can be enough to destroy your chances of gaining the job or license.

On the other hand, if you should answer yes and you answer no then not only will your employer likely find the criminal records anyway but any chance you had of the criminal record going overlooked is likely gone. Now you are dishonest. The probability that you slip by with the criminal conviction undiscovered is not likely. You should know that your employer can perform a background check at any time and fire you for that dishonesty.

Effect of removing criminal records

Removing criminal records from your background, when they can be removed, allows you to have a clean (or cleaner) report in a background check. Under Texas law, it also allows you to honestly answer the question of “have been arrested for, convicted of, or obtained deferred adjudication of a criminal offense” with an honest “no” unless there are criminal reports that cannot be removed. If you only have one criminal record then trying to remove that single episode can be extremely beneficial. If you have been the victim of identity theft in a way that created a criminal record under your name or other identifying information then it may be in your best interests to expunge the incorrect records.

Expunctions and Nondisclosure Orders in Texas

Texas law provides expunctions (sometimes called expungement) and nondisclosure orders to seal or destroy certain criminal records, making them unavailable to most or all employers. It is important to note that expunctions and nondisclosure orders are not universally available to everybody. They cannot destroy or seal records of convictions except an alcohol-related conviction for a person under the age of 21, if you received a pardon for the conviction, or a conviction overturned by an appellate court.

Expunctions

An expunction (or expungement) will destroy records of an arrest and indictment for a crime if you were not convicted, the conviction was overturned or pardoned, the charges were dismissed, or you completed a pretrial diversion program. An expunction is the most powerful weapon available to clean up a background. It orders all public agencies to destroy records of the arrest and subsequent activity so it cannot and will not show up in a background check. If an expunction is available then you should obtain one instead of a nondisclosure order. An expunction is not available if you accepted deferred adjudication (also known as community supervision or probation) except for Class C misdemeanors. Deferred adjudication is different from a pretrial diversion program. Deferred adjudication required a plea of guilt (or no contest). A pretrial diversion program requires no plea. The prosecutor withdraws the charges. If you accepted deferred adjudication then you will have to look to a non-disclosure order to seal that record.

Nondisclosure orders

A nondisclosure order seals records for an arrest or citation that resulted in deferred adjudication. This is not as powerful as an expunction because it does not result in destroying the records, only sealing them. For most background checks the arrest through the deferred adjudication will not appear in background checks used by most employers. However, the records are available to criminal justice agencies and certain government agencies that may issue a license. Although a nondisclosure order is not as powerful as an expunction it can still be useful for most employment situations. It will still allow you to honestly claim you lack a history as “arrested for, convicted of, or obtained deferred adjudication of a criminal offense”.

If an arrest or citation qualifies for an expunction or nondisclosure order then there are a several factors to consider. The length of time since the arrest may play a role in the requested expunction or nondisclosure order. The length of time since completing the deferred adjudication may be a factor. Your other criminal history can also play a role in whether the court can grant an expunction or deferred adjudication