Someone called and asked me this today: Why did my deferred prosecution show up on a criminal background check?

They had successfully completed a Travis County Deferred Prosecution agreement for a shoplifting (theft) charge. The terms of the agreement were:

  • Complete 50 hours of community service
  • Attend a Theft/Shoplifting Class
  • Stay out of trouble for 1 year

Like all Austin Deferred Prosecution agreements, the case had been dismissed “up front”; meaning that the State dismissed the Theft charge when the agreement was signed, and came back and checked after a year to see whether the defendant had lived up to their end of the bargain.

The defendant had already turned in proof of the community service, and the certificate for completing the class, and had not gotten into any trouble.

Unfortunately for them, during a routine criminal background check by their employer, the arrest “showed up”. Why?

Because they had not gone back after the year was up and expunged the arrest.

Here’s the deal. Let’s say you were arrested in Austin and charged with [DWI, or Assault Family Violence, or Theft, etc.]

An officer with the Austin Police Department arrested you. You were booked into the Travis County Jail and turned over to the custody of the Travis County Sheriff’s Office (the folks in the brown uniforms). You were interviewed by Pre-Trial Services for a Personal Bond. You were magistrated by an Austin Municipal Court Judge.

(This next part of my hypothetical never happens, but I’m using it to prove a point…) As you are walking out the door of the jail, the prosecutor meets you at the door with a dismissal, and admits that a mistake was made: you should never have been arrested. You are free to go. You are no longer on bond. You don’t have ot go to court (or hire a lawyer).

Well…is that the end of the story? No!

All those agencies I mentioned will have a record that you were arrested in Austin, Texas on [a certain date] and charged with [whatever criminal offense]. Several more agencies, such as D.P.S., the County and/or District Attorney’s Offices, TCIC, NCIC (Texas & National Crime Information Centers) will have a that same record of your arrest in a matter of days or weeks.

Same thing when you hire a lawyer and get your case dismissed. There is still a record of your arrest. And that’s what expungement is for.

An Expunction is simply a civil lawsuit against all the government agencies that have a record of your dismissed or acquitted case, demanding that they destroy the records of the arrest.

Why is that necessary? Because, unfortunately, folks think that where there’s smoke, there’s fire. If they see that you were arrested, they very well may assume that you were guilty, even if you weren’t convicted.

Bottom Line? Getting a dismissal is not the same as “getting the arrest off your record.”

  • Worse still, even in your hypothetical (where the prosecutor dismisses your case as you walk out the door of the jail) you will have to wait two years to expunge the records of your arrest.

    That’s fair, no?

  • Robert

    In order for you to request that your cases be expunged, you must wait 2 years from the final judgement date of a misdemeanor and 5 years from the final judgement date of a felony. Is this correct?

    Additionally, how likely is it that the request for an expunction will be honored?

  • Katharina Wilson

    Hi I was arrested when I was 17 years old. My mom told the police that I hurt her which I did not do. But the police charged me as an adult and took me to jail. My mom cam to her senses the next day which there was alcohol involved, but my mom dropped all the charges and my lawer said the case was dismissed. I checked my record online and it said that nothing was on my record. Right now I am going to college I want to be a teacher. Do I have anything to worry about?

  • Melanie

    My question are I’ve plead guilty theft case- dismiss but I’m not sure if I’ve been charged. I don’t know if still on my name. I’m applying to get an apartment and there asking been charged I don’t if I had to say yes or no. Pls let me know what should I do

  • Kelly Lirttle

    I was told that my case could be postured? What is that? Is it the same as dismissal? I was charged with a 21nd degree felony



  • Nikki

    I have a charge of theft on me and my court date is Dec.9th. I have never been in trouble before and it is a class A misd. One attorney said i could possible get defered probation if i plea guilty is this so, will that be on my record or not?

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