This page was designed to help our clients better understand our Texas Setting Aside of Conviction service. You will find answers to the questions we are most frequently asked. If your question is related to eligibility requirements please take the free online eligibility test.
Simply click on a question to view its answer:
Recently a case was decided in appellate court (State v. Fielder) which states a judge can't set the case aside if more then 30 days have passed since a person's discharge from probation. However, this case decision was made in a court in Waco, TX so it is only binding on certain counties (Bosque, Brazos, Burleson, Coryell, Ellis, Falls, Freestone, Hamilton, Hill, Johnson, Leon, Limestone, Madison, McLennan, Navarro, Robertson, Somervell, Walker). Therefore, if a case is held in the counties listed a person cannot file a motion to set aside if more than 30 days have passed since the discharge from probation.
Later, a case was decided in Amarillo, TX in appellate court (State v. Shelton) and states the same decision as Fielder. It is binding on the counties of Armstrong, Bailey, Briscoe, Carson, Castro, Childress, Cochran, Collingsworth, Cottle, Crosby, Dallam, Deaf Smith, Dickens, Donley, Floyd, Foard, Garza, Gray, Hale, Hall, Hansford, Hardeman, Hartley, Hemphill, Hockley, Hutchinson, Kent, King, Lamb, Lipscomb, Lubbock, Lynn, Moore, Motley, Ochiltree, Oldham, Parmer, Potter, Randall, Roberts, Sherman, Swisher, Terry, Wheeler, Wilbarger, and Yoakum.
However, if a case was held in a different county then a person can still file for set aside even if more than 30 days has passed. Although the DA may object on the basis of the recent case that was decided and the judge can consider it, we can still file and will continue to argue that the language in the statute does not say it has to be set aside 30 days after probation discharge.
There are also several other counties where the courts are notorious for refusing to grant set asides so we do not file in those counties.
While we cannot definitively predict the exact outcome, we have been successful in most of our set aside cases. The more supporting evidence that you have of your reform and law abiding behavior the better your chances of success are. If you would like us to evaluate your case and give you the chances of success, then we can do so for a fee, which will be applied to the cost of a set aside if you sign up.
Because judges rarely grant setting asides in Harris and Tarrant County, we do not provide the setting aside service in Harris and Tarrant County.
No, as long as you have a conviction that is eligible to be set aside, it does not matter whether you plead guilty/no contest or were convicted after a trial.
We will be glad to work with you to get a copy of your record and to review what can be done. We charge a researching fee and we apply that to the cost of any service that you hire us to perform.
The court will look at each individual case and determine if that particular case is eligible to be set aside. Thus, having multiple offenses on your record does not necessarily make you ineligible; however, the court can still consider your entire criminal record in deciding whether you are worthy of being granted the request.
No. At the present time, there does not appear to be any law in Texas that allows a judge to reduce a felony down to a misdemeanor long after the felony has been imposed.
Cases are denied due to: (1) an inaccuracy in the court file or in the application, (2) the court does not believe that granting your set aside will be in the interest of society, (3) you violated your probation, (4) you have not paid all of your fines, or (5) the offense is otherwise not eligible to be set aside. 42.12(5)(a)
Yes. Setting aside is meant for those who were convicted and then granted probation/community supervision. 42.12(5)(a)
We do not handle expungement of federal cases. Only limited types of federal cases are eligible for expungement, please contact an attorney who handles federal cases.
While an attorney will appear in court for you at any scheduled hearings, Texas courts do frequently require your presence, as well. However, if attending the hearing would be a hardship for you or if you live out of state, we can request that the court excuse your presence, but this is not guaranteed.
A typical Texas set aside case takes four to six months (depending on county). We will work very fast to have the petition filed within 30 days of the completion of your sentence. However, after the initial filing the court has to give the government an opportunity to respond to the petition once it is filed; if the government objects to the set aside, then a hearing is often held.
This process is already expedited to be completed as quick as possible. After you sign up, we can write a letter for your employer or potential employer stating that we are in the process of having your conviction set aside.
The guilty judgment is set aside, and the charge is “dismissed” as though you were never convicted. The records will not be sealed or expunged, but they can only be used against you in the future under very limited circumstances (see above). You can represent to people that you were never “convicted” in the case. 42.12(5)(a)
If the judge denied your set aside, we will evaluate the reason why it was denied and determine the best way to proceed.
Yes. If you ever commit another offense in the future, the conviction that has been “set aside” can be used by the judge in that future case. 42.12(5)(c)(1)
As indicated above, setting aside does not erase the records from your background. However, you can state that you were not “convicted” in the case because the guilty judgment will have been “set aside” and dismissed. 42.12(5)(a)
Yes. Setting aside does not seal or expunge the records. However, the records should be updated to reflect that your case resulted in a set aside/dismissal rather than a “conviction.”
Yes. Your criminal history will indicate that you were charged with the offense and that the charge resulted in a dismissal.
No. Offenses that require sex offender registration are not, in most cases, eligible for setting aside. Although you may still able to obtain a setting aside for certain registrable offenses (offenses committed before September 01, 2009), getting the offense set aside does not release you of your duty to continue registering.
The Canadian government will have whatever information the United States has on file, because the two countries have entered into an information sharing agreement. If you are eligible to set aside your conviction before trying to enter Canada, we recommend doing so as having the conviction set aside should be beneficial.
The Border Patrol has discretion when deciding to grant or deny Sentri passes, but setting aside your Texas conviction will show that you have resolved all matters with the court and the conviction is off of your record.
Voting rights in Texas are restored to convicted felons once he or she is fully discharged from the felony sentence, including any term of incarceration, parole, or supervision, or after completion of a period of probation ordered by any court.
To find out if a set aside of your Texas conviction will be beneficial to your immigration status, you should contact a qualified immigration attorney to discuss your case. Our in-house immigration attorney can be reached at 714-617-8395.
Yes. Setting aside restores your gun rights in Texas that were lost as a result of the conviction that is set aside.
Additionally, the Texas Court of Appeals has ruled that a set aside conviction no longer counts as a conviction for purposes of obtaining a concealed handgun license in Texas. Section 411.171; Texas Department of Public Safety v. Jones
There is also a lifetime ban under the federal law (Lautenberg Amendment to the Violence Against Women Act), which applies to those convicted of misdemeanor domestic violence crimes. If this ban applies to you, set asides and expungement in Texas do not lift the federal prohibition.
In Texas, you may serve on a jury if you: 1) are a resident of the United States and a resident of the county by which you are summoned, 2) are at least eighteen years of age, 3) are able to read and write, 4) are of sound mind.
You may not serve on a jury if you: 1) have been convicted of a felony for any type of theft, unless your rights have been restored to you, 2) are currently on probation or deferred adjudication for any type of theft on a felony level, 3) are currently under indictment for a felony or are currently charged with any type of theft.
Yes. If you are granted a setting aside, most state agency will be prohibited from considering the offense in deciding whether to grant you a particular license (teaching, nursing, etc.), except for when you apply for a license with the Health and Human Services Commission that involve child care services. However, even if your conviction is set aside, you are still disqualified from becoming a law enforcement officer, security officer, or county jailer.
Section 19 of the Federal Deposit Insurance Act allows banks to bar individuals who have had “Breach of Trust” or "Dishonesty" convictions from jobs that they are otherwise qualified for even if they had the conviction expunged. If you are in this situation, you can apply for a waiver from the FDIC. To find out if your case is considered a "breach of trust" or "dishonesty" conviction and, if so, if you would qualify for a waiver, you should discuss your case with an attorney.
Yes; however, the case will show as set aside or dismissed instead of as a conviction. If an employer searches for convictions, then the offense will not appear because the disposition is not a conviction. If, however, the employer searches for dismissed cases, then your offense will appear. Even though your record is not sealed, a setting aside releases you from most penalties, disabilities, and restrictions resulting from that conviction. 42.12(5)(a)
After the court issues the written granted order, which orders all agencies that have records of the offense to act according to the order, they send it to the Texas Department of Public Safety and other agencies. The agencies typically update their records within 30 days.
The court updates the records shortly after the order is signed. The Texas DPS and other agencies will usually have their records updated within approximately 30 days.
No. The records will still be a part of your driving records. However, DMV records automatically come off your driving record after a certain period of time; the same is not true for criminal records which you must petition the court to have removed or altered.