It goes without saying that any criminal arrest, charge or disposition, no matter how favorable, can adversely impact your future. A criminal record may prevent you from getting into the college of your choice, applying for your dream job, or even closing a deal on a new house. It is important to understand your options. Were you charged with a criminal offense that resulted in a dismissal, a completed pre-trial diversion program, a successfully disposed of deferred adjudication probation, or a reduction to a lesser offense? If so, you may be eligible for an expunction or nondisclosure to ensure your criminal record is kept private. New laws passed in 2015 also entitle certain individuals who have been to jail or received probation.
Expunctions vs. Nondisclosures in Texas
An expunction order requires the destruction of all records of an offense, while a nondisclosure only prevents the Texas Department of Public Safety and other law enforcement agencies from releasing arrest and case information to anyone other than another law enforcement agency or certain specifically enumerated agencies.
If you are eligible for an expunction and follow all the proper procedures, an expunction must be granted in your case. However, if you are eligible for a nondisclosure and follow all the proper procedures, the judge has the discretion to grant or deny your petition for a nondisclosure.
How Long Does it Take to Get an Expunction or Nondisclosure Once You are Eligible?
Once a petition has been filed to have your record sealed or expunged, the court will address the petition. This may take anywhere from a couple of weeks to a couple of months. Occasionally, the judge will want to have a prove-up hearing which could further delay the process. Once an expunction or non-disclosure order is signed by a judge, you should expect for it to take four to six months before the records are completely sealed or expunged. Why the delay? Texas DPS, the primary clearinghouse for criminal records, is at least four months behind in processing orders. These orders must also be processed by a number of private and public entities, which inevitably takes longer than you would expect.
Am I Eligible for an Expunction in Texas?
In Texas, Chapter 55 of the Code of Criminal Procedure allows for expunctions of certain criminal offenses. Categories of offenses that may be eligible for expunction include:
- Most felonies and misdemeanors that were dismissed outright;
- Cases where an individual was found not guilty at trial;
- Class C offenses that were dismissed after successful completion of deferred adjudication community supervision;
- Most misdemeanor and felony offenses where a person was arrested but never charged, if a required waiting period has passed;
- Convictions, including offenses where the individual did time or was on straight probation, if the offense has been pardoned; and
- Cases where the prosecutor recommends the case is expunged.
What if You are Found ‘Not Guilty’ on One of Multiple Charges?
Generally, if a person is arrested on multiple charges and at least one of the charges result in a conviction, the conviction will prevent an expunction of the underlying arrest. An opinion issued by the Court of Appeals in Dallas serves as a reminder that there are exceptions to this general premise in certain circumstances.
In Texas v. T.S.N., the defendant was arrested for two offenses from two different dates at the same time. The first of the two offenses was a misdemeanor theft charge. The second of the two offenses was an aggravated assault with a deadly weapon charge. The defendant pled guilty to theft and was convicted. The defendant pled not guilty to the assault charge and was acquitted.
The defendant filed a motion to expunge the record of the assault after being found not guilty. The prosecutor opposed the motion for expunction because the defendant was convicted for at least one of the offenses for which she was arrested. The trial court ruled in favor of the expunction and the State appealed the decision to allow the expunction.
The State’s argument, and one that is commonly made by prosecutors, is that Article 55.01 (the expunction statute) is an arrest-based statute and that records concerning one charge cannot be expunged absent a showing that both charges are eligible for expunction.
While it is true that 55.01(c) does not allow for expunctions after acquittal of one charge when the person was convicted for, or remains subject to prosecution for, an offense arising out of the same criminal episode, there is no such restriction if the offenses did not take place in the same criminal episode.
The Court of Appeals in Dallas examined the expunction statute closely and determined that a person who is acquitted for an offense is entitled to an expunction even if he was arrested for another offense at the same time and that offense resulted in a conviction, as long as the offense for which he was convicted did not arise out of the same criminal episode.
This case highlights the need to contact an expunction attorney if you believe you may be eligible for an expunction of your records. Second, for practicing attorneys it is important to seek findings of “not guilty” from judges or juries for counts or charges that do not arise out of the same criminal episode. Third, for practicing criminal defense attorneys, this case is an important reminder to pursue what you believe to be a proper reading of a statute even when the prosecution seems to have an analogous argument that has carried the day in other cases.
Video: What’s the Difference Between an Expunction and Nondisclosure in Texas?
Can I Deny an Offense if it was Expunged in Texas?
Once an expunction order is final, an individual may deny the existence of the arrest and the expunction on applications, including for employment, school or the military. The person may even deny in a civil proceeding under oath the arrest and the existence of the expunction order. Only in a criminal proceeding must a person acknowledge the expunction order by stating the matter has been expunged.
What is a Nondisclosure in Texas?
Government Code Subchapter F allows for individuals who have successfully completed deferred adjudication community supervision for Class B misdemeanors, Class A misdemeanors, or felony offenses to have their records sealed through an Order of Nondisclosure.
Am I eligible for an Order of Nondisclosure in Texas?
You may be eligible for an order of nondisclosure if you received a dismissal of your case after deferred adjudication of a Class A or Class B misdemeanor or a non-exempt felony offense. You cannot receive a nondisclosure if you picked up a new criminal offense (other than a ticket) after you received deferred adjudication on the offense you wish to have nondisclosed. You cannot receive a nondisclosure if you have ever been convicted of an exempted offense.
What Offenses are Exempted from Receiving Orders of Nondisclosure in Texas?
- Any offense requiring registration as a sex offender
- Aggravated Kidnapping
- Capital Murder
- Injury to a Child, Elderly, or Disabled
- Abandoning or Endangering a Child
- Violations of Court Orders in Family Violence Cases
- Any family violence case
Can You Get a Nondisclosure after Straight Probation in Texas?
There are generally two kinds of Community Supervision in Texas. The first is “Straight Probation” and the second is “Deferred Adjudication.” The difference between Straight Probation and Deferred Adjudication is that there is a finding of guilt (in other words, a conviction) if you are placed on Straight Probation. There is no finding of guilt or a conviction if you are placed on Deferred Adjudication and successfully complete the terms of your community supervision.
Until recently, a person could not get a nondisclosure after Straight Probation in Texas, even if they successfully completed the terms of their Community Supervision. Under newly enacted Government Code Section 411.073, certain individuals who successfully completed misdemeanor Straight Probation for an offense that took place on or after September 1, 2015 may be able to get a nondisclosure of their criminal record – in other words, have their record sealed.
A nondisclosure in Texas is the legal mechanism used to seal a person’s criminal history so that no one other than law enforcement agencies or a state license agencies have access to the record. To obtain a nondisclosure, a petition for nondisclosure must be prepared and filed with the state. The state then has an opportunity to request a hearing. The court will determine if granting the nondisclosure is in the best interest of justice, and if so grant an order prohibiting the disclosure of the criminal record.
What are the Requirements for Getting a Nondisclosure after Straight Probation?
- The offense took place on or after September 1, 2015.
- The offense was not a DWI or other intoxication-related offense or engaging in organized crime.
- The defendant had not been convicted or placed on deferred adjudication for any offense other than a fine-only traffic violation after being sentenced on the misdemeanor for which the non-disclosure is being sought.
- The defendant must have successfully completed probation.
- The defendant cannot have been placed on convicted or placed on community supervision at any time for any offense other than a traffic offense that was punishable by a fine only.
What are the Waiting Periods for a nondisclosure in Texas?
For a felony, five years from the date of the discharge of probation must elapse before a petition for non-disclosure can be filed. (Congress recently shortened the waiting period from 10 years.) For most misdemeanors, a petitioner can file immediately after completing the deferred adjudication. However, for some misdemeanors, a petitioner must wait two years after the date of discharge before seeking a petition for non-disclosure.
Misdemeanors that require a two-year waiting period include assault, deadly conduct, disorderly conduct, and unlawfully carrying a weapon. For the offenses that require a waiting period, the petitioner cannot be convicted or placed on deferred adjudication for another offense during the applicable interval.
There is a two-year waiting period for:
- Abuse of Corpse
- Advertising for Placement of a Child
- Attack on Assistance Animal
- Certain Bond Violations in Family Violence Cases
- Cruelty to Animals
- Destruction of Flag
- Discharge of Firearm in Municipality having over 100,000
- Disorderly Conduct
- Disrupting Meeting or Procession
- Electronic Transmission of Certain Visual Material Depicting Minor
- Enticing a Child
- False Alarm or Report
- Funeral Service Disruption
- Harboring a Runaway
- Hoax Bombs
- Illumination of Aircraft by Intense Light (Laser)
- Indecent Exposure
- Interference with Emergency Call
- Making Firearm Accessible to Minor
- Obscene Display or Distribution
- Obstruction of a Highway
- Possession of a Prohibited Weapon
- Promotion of Prostitution
- Public Lewdness
- Sale, Distribution, or Display of Harmful Material to Minor
- Silent or Abusive 911 Calls
- Unlawful Carrying of a Weapon
- Unlawful Disclosure of Intimate Visual Material
- Unlawful Restraint
- Unlawful Transfer of Certain Weapons
Can You Get a Nondisclosures of Misdemeanor Jail Sentences?
A nondisclosure in Texas is the legal mechanism used to seal your criminal record after going to jail so that no one other than law enforcement agencies or a state license agencies have access to the record. Until recently, a person could not get a nondisclosure if they served a jail time. However, recent changes in Texas law now allow for nondisclosures of criminal records in some instances where the individual completed a jail sentence.
Government Code Section 411.0735 now allows for nondisclosures of certain misdemeanor offenses for individuals who served their jail sentences. Intoxication-related offenses and engaging in organized crime cases are not eligible for nondisclosures under this section.
In order to get a nondisclosure under Section 411.0735, the person must have served the sentence and never been convicted of or placed on deferred adjudication for any other offense besides a fine-only traffic offense. In order to obtain a nondisclosure, a Petition for Nondisclosure must be filed with the court. Furthermore, two years must have passed from the date of release from jail, and the offense must have occurred on or after September 1, 2015. The petitioner must be able to show that granting the Order of Nondisclosure would be in the best interest of justice.
Qualifications for a Nondisclosure after Jail Time:
- Offense date must be on or after September 1, 2015.
- The offense must have been a misdemeanor.
- The offense cannot have been an alcohol-related charge.
- The offense cannot have been an engaging in organized crime charge.
- Two years must have passed from the date of release from jail.
- The person cannot have been previously convicted or placed on deferred adjudication for any offense other than a fine-only traffic offense.
- The person cannot have been convicted or placed on deferred adjudication for any offense other than a fine-only traffic offense during the waiting period.
- The person cannot have been convicted or placed on deferred adjudication at any time for:
In order to obtain a nondisclosure, a Petition for Nondisclosure is filed as a civil proceeding. The State must be given notice of the petition at which time the State has 45 days to request a hearing. If a hearing is not requested, the court can grant the order without a hearing.
Can I Deny a Prior Offense if it was Nondisclosed in Texas?
Generally, if you have an offense that has been nondisclosed, you are no longer required to disclose it. However, there are agencies for which nondisclosure orders do not apply.
What Agencies have Access to a Nondisclosed Offense?
- Law enforcement agencies
- State Board of Educator Certification
- School districts, charter schools, private schools, regional education service centers, commercial transportation companies, or education shared service arrangements;
- Texas State Board of Medical Examiners
- Texas School for the Blind and Visually Impaired;
- Texas Board of Law Examiners;
- State Bar of Texas;
- District court regarding a petition for name change
- Texas School for the Deaf;
- Department of Family and Protective Services;
- Texas Youth Commission;
- Department of Assistive and Rehabilitative Services;
- Department of State Health Services, a local mental health service, a local mental retardation authority, or a community center providing services to persons with mental illness or retardation;
- Texas Private Security Board;
- Municipal or volunteer fire department;
- Board of Nurse Examiners;
- Safehouse providing shelter to children in harmful situations
- Public or nonprofit hospital or hospital district;
- Texas Juvenile Probation Commission;
- Securities commissioner, the banking commissioner, the savings and loan commissioner, or the credit union commissioner;
- Texas State Board of Public Accountancy;
- Texas Department of Licensing and Regulation;
- Health and Human Services Commission; and
- Department of Aging and Disability Services.
What are the Waiting Periods for Filing Petitions of Nondisclosure?
- Second anniversary after dismissal and discharge for the following offenses:
- Immediately after successful completion of probation for other misdemeanors.
- Five years after dismissal and discharge of felony offenses.
Was My Class C Offense Deferred or Was it a Conviction?
If the fine you paid was categorized as a fine, then it was a conviction. If it was categorized as a “special assessment,” then you received deferred adjudication. If you were charged in Texas and are interested in finding out if a Class C offense you paid for can be expunged, contact Varghese Summersett PLLC.
In Tarrant County, and in many other counties across the state, cases are sometimes reduced to Class C offenses. For example, let’s say you were arrested for Theft $50-500 but your case was ultimately disposed of as a Class C Theft under $50, after you paid a special assessment and you successfully completed your deferred term. Once you are done, your case is dismissed. However, a background check will still show that you were arrested for Theft $50-500. An expunction would remove the arrest from your record completely.
Can I Get a Record of a DWI Sealed?
If Texas, if you pled guilty or “no contest” to a DWI charge, the law only allows for two forms of punishment: jail time or straight probation. A recent change in law allows for the nondisclosure of first-time DWIs.
Can you get DWI Expunctions in Texas?
As of September 1, 2017, Texas law allows for the retroactive nondisclosure, but not expunction, of first-time DWI cases.
My Case was Dismissed. Do I have a Criminal Record?
A common myth is that once your case is dismissed, it is no longer on your record. A criminal background check will still show your arrest. These records may affect a person’s ability to get a job, secure loans, or find a place to live. Arrests and dispositions get reported to the Texas Department of Public Safety. The information is then disseminated to third-party data services like publicdata.com. If your case has been dismissed for any reason, contact Varghese Summersett PLLC to see if your criminal record can be sealed.
I Received Deferred Adjudication. Do I have a Criminal Record?
Even if you successfully complete deferred adjudication community supervision and your case was dismissed (referred to as a DM13), it will still appear on your criminal record. It is important that the court enter a finding of “Not Guilty” on the greater charge. Then, you will need to call Varghese Summersett PLLC, about a non-disclosure order for arrest and disposition of the lesser charge.
Can I Get an Expunction if I have signed a Waiver of Expunction?
Individuals sometimes sign waivers of expunctions at the time of the plea. If you have signed a waiver of expunction, the road to getting an expunction becomes much more difficult. Still, there are often avenues for expunctions to be granted. It is important that you call an expunction attorney who is familiar with the expunction laws in Texas and the procedures for filing an expunction even in cases where a waiver of expunction was signed.
Varghese Summersett PLLC provides expunctions and nondisclosures for clients in Tarrant County, Dallas County, Denton County, Collin County, and Johnson County. Call 817-203-2220 today for a complimentary strategy session. You can also contact us online.
Also published on Medium.