Misidentification Victim Worksheet
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Information Sheet
In 2003, the Texas Legislature amended the expunction statute to require the Harris County
District Attorney to accept expunction applications from certain persons whose identities have
been misappropriated. See Article 55.02, Section 2a(a), Texas Code of Criminal Procedure.
To be entitled to file an expunction application, an identity theft victim must show:
(a)
Information identifying the victim was falsely given by an arrestee as the arrested
person's identifying information without the consent of the victim.
(b)
The only reason for the information identifying the victim being contained in the arrest
records and files of an arrestee is that the information was falsely given by the arrestee as
the arrestee's identifying information.
See Article 55.01(d), Texas Code of Criminal Procedure. In other words, a victim may seek an
expunction only if his or her identifying information (i.e. name, address, date of birth, driver's
license number or social security number) was actually used by a criminal arrestee.
The right to pursue an expunction through the District Attorney's Office does not include
expunction of the following kinds of records:
•
Misidentifications by third parties other than the arrestee. If, for example, a check
verification company accuses the wrong Jane Doe of check fraud, the false information
provided by the third party company does not give rise to a right of expunction through
the District Attorney's Office.
The falsely accused victim should file a "regular"
expunction with the assistance of counsel or proceed on their own behalf.
•
Misidentifications by coincidence. If there are two John Smiths born on January 1,
1980 in Houston, one of whom has a criminal record, the other John Smith does not have
the right to seek expunction of his namesake's record, even if some identifiers coincide.
Only if the criminal John Smith intentionally uses the non-criminal John Smith's other
identifiers (SSN, DL, DOB, address) to avoid the consequences of his criminal record
may an expunction be pursued.
•
Regular expunctions.
Except as authorized by law (as is the case for the
misidentification petitioners), the District Attorney's Office cannot prepare a petition for
a person seeking expunction of records. A person seeking expunction of their own arrest
records must consult with their own attorney or proceed on their own behalf. A form
pleading and guide to filing for expunctions is available from the District Attorney,
however, upon request. The District Attorney will not provide any legal advice beyond
those materials.
•
Typographical errors by a law enforcement agency. Such errors should be corrected
directly with the law enforcement agency itself.
To qualify for assistance by the District Attorney, a misidentification victim must have the
following information (if available):
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