Why Expunction Is Denied—and How to Avoid Costly Mistakes

Expunction in Texas is a powerful legal remedy that can permanently erase arrest records from public view. However, it is also strictly governed by statute, and courts routinely deny expunction requests when even one requirement is not met. Because expunction is a statutory privilege—not a constitutional right, petitioners carry the burden of proving complete compliance with Texas law.

Understanding the most common reasons expunction petitions fail can help individuals avoid delays, denials, and unnecessary court costs.

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1. Failure to Meet Statutory Eligibility Requirements

The most common reason expunction requests are denied is failure to satisfy the statutory requirements under the Texas Code of Criminal Procedure. Courts have consistently held that every requirement must be met, with no room for discretion.

Common eligibility issues include:
  • The arrest resulted in a final conviction
  • The petitioner was placed on community supervision (probation) (except certain Class C misdemeanors)
  • The required waiting period has not expired
  • The offense does not qualify under the applicable statute

In In re Expunction of M.T., 495 S.W.3d 617, the court emphasized that expunction cannot be granted unless all statutory conditions are strictly satisfied.
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2. Dismissal Does Not Automatically Mean Expunction


Many people assume that if charges were dismissed, they automatically qualify for expunction. That is not always true.


Courts require proof that the case was dismissed:


  • Due to a lack of probable cause, or
  • For another reason specifically allowed by statute


In Ex parte Kilberg, the court denied expunction because the case was dismissed after evidence was suppressed—not because probable cause was lacking. Similarly, in State v. Sink, the court held that insufficient evidence alone does not qualify unless lack of probable cause is proven.


3. Insufficient Evidence Supporting the Petition


A petition for expunction must be supported by actual evidence, not just allegations.


In Ex parte K.R.K., 446 S.W.3d 540, the court denied expunction because the petitioner failed to submit proof beyond the statements in the petition itself. Courts require documentation such as:


  • Certified dismissal orders
  • Probable cause findings
  • Affidavits or testimony
  • Criminal history records


Without evidence, courts have no legal basis to grant expunction.

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4. Waiver of Expunction Rights


Another frequent reason for denial is a waiver of expunction rights, often signed as part of:


  • Pretrial diversion agreements
  • Deferred prosecution programs
  • Negotiated dismissals


In In re Expunction of E.L., 504 S.W.3d 908, the court upheld denial where the petitioner had knowingly waived the right to seek expunction. Once waived, courts generally enforce the agreement—even if the case was dismissed.


5. Disqualifying Criminal History


Texas law also disqualifies individuals who have been:


  • Convicted of a felony within five years preceding the arrest at issue


In Heine v. Texas Dep’t of Pub. Safety, 92 S.W.3d 642, the court reversed a denial only because the petitioner proved full compliance, including no disqualifying felony conviction within the statutory timeframe. Failure to meet this requirement commonly results in denial.


Key Takeaways


Texas courts strictly enforce expunction statutes. Requests are commonly denied due to:


  • Failure to meet eligibility requirements
  • Misunderstanding the effect of a dismissal
  • Lack of supporting evidence
  • Signed waivers of expunction rights
  • Disqualifying criminal history


Because even small mistakes can lead to denial, thorough preparation and legal guidance are critical when seeking expunction.



Thinking about clearing your criminal record in Texas? Wyde & Associates can review your case, identify eligibility issues, and help you avoid mistakes that lead to denial. Contact us today for a consultation.

Am I Eligible?