Criminal records can cause problems for a person long after their case has ended and they have paid their debt to society. Background searches are now a common feature in employment, housing, and other important areas of society. Under certain circumstances, it is possible to remove information about a criminal case from the public record with an expunction or seal information from public view with an order of nondisclosure. These types of relief are usually only available in cases that ended in an acquittal, an executive pardon, or the successful completion of a deferred prosecution plan. Some people are now attempting to expunge records of convictions in cases in which the U.S. Supreme Court has ruled the underlying statute unconstitutional. This does not fit neatly into the letter of most expunction laws, but it seems consistent with those laws’ spirit.
An expunction, also known as expungement, removes information about a case from court records and law enforcement files, including the actual destruction of the physical file. This includes records relating to a person’s arrest, detention, and charge or charges. An order of nondisclosure prohibits public officials from releasing information about a criminal case. Texas allows expunction of records in cases in which a trial ended in an acquittal, a pardon was issued after a conviction, or any type of clemency was granted based on “actual innocence.” Tex. Code Crim. P. Art. 55.01(a). For cases that never proceeded to trial, Texas allows expunctions when the charges were dismissed, no community supervision was ordered, and a sufficient period of time has passed. Major felony offenses are generally not eligible for expunction or nondisclosure.
Up until 2003, 14 states in the U.S., including Texas, had criminal statutes prohibiting “homosexual conduct,” also known as “sodomy laws.” Texas made it a Class C misdemeanor to “engage in deviate sexual intercourse” with a member of the same sex. Tex. Pen. Code § 21.06. The U.S. Supreme Court ruled that this statute violated substantive due process rights under the Fourteenth Amendment. Lawrence v. Texas, 539 U.S. 558 (2003). The ruling overturned a prior ruling affirming a similar law in Georgia, Bowers v. Hardwick, 478 U.S. 186 (1986). The Lawrence ruling effectively invalidated these laws in all 14 states. As of 2014, however, the laws remained on the books in 12 of these states, including Texas.