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 Versus 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 they receive. These orders must 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.
Video: What’s the difference between an expunction and Nondisclosure in Texas?
Expunctions and Nondisclosures 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.
Offenses 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 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;
- Safe house 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.
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?
For decades, the law in Texas did not allow for a DWI to be sealed. However, that is about to change on September 1, 2017.
DWI Expunctions or Nondisclosures Before Sept. 1, 2017
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. If you wish to have a record expunged, you must first have that offense pardoned by through the Governor’s Office.
If your offense was reduced to a non-DWI offense, such as Obstruction of a Highway, call Varghese Summersett PLLC at (817) 203-2220. You may be able to have the record of your DWI arrest expunged if there was a finding of “Not Guilty” on that count. You may be able to have your Obstruction of Highway charge non-disclosed if you received deferred adjudication on the Obstruction of Highway charge.
DWI Expunctions after September 1, 2017
The law allows for the retroactive 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 Ddjudication. 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 for clients in Tarrant County, Dallas County, Denton County, Collin County, and Johnson County.