Expuctions and Nondisclosure in Texas
Expuctions and nondisclosure (also known as record sealing) are means of clearing one’s public state criminal records available for potential employers or anyone else to see. They both serve the purpose of removing eligible criminal records from the public view because having your criminal history made public can affect you economically and personally from missing out on employment opportunities to the social stigma associated with exposing your unwanted past to the people around you.
An expunction order will cause your whole criminal record from the arrest to the disposition of the case to be destroyed from any state entity and even from a private entity which receives notice of the order. An expunction order is so powerful that it even allows an individual under oath in a civil or family law case (not applicable to oaths in criminal cases) to deny the arrest. For the law regarding expunctions see Tex. Code Crim. Proc. art. 55.001
A nondisclosure order means that an individual’s criminal record about the arrest, dismissal or conviction cannot be made available to the public but state licensing agencies and law enforcement agencies will still have access to the sealed record. When granted, a nondisclosure order allows the individual to answer “no” on a job application when asked about previous arrests, and to get clean background checks. For the law on nondisclosure see Tex. Govt. Code 411.081 (d)-(h)
Am I Eligible for an Expunction?
It depends on the final disposition of your criminal case. You are eligible if your case is disposed of by means of dismissal of the case, found not guilty at trial, deferred adjudication of a Class C misdemeanor (or ticket), no-billed, pardon granted, or because the state prosecutor recomends the case be expunged.
Waiting Periods to File for Expunction:
There’s is no waiting period if a person is acquited at trial or if the state prosecutor certifies that the arrest records and files are not needed for use in any criminal investigation or prosecution of another person. Otherwise, 180 days from the arrest must have passed for Class C Misdemenanors (or ticket citation), 1 year from the arrest must have passed for Class A or B Misdemeanors, 3 years from the arrest have passed for Felonies.
If you are not eligible to get an expunction, you may be eligible to get your criminal record sealed via a nondisclosure order.
How do I Know whether I Am Eligible for Nondiclosure?
It’s best you call our office for a free consultation at 469-620-2900 as the Texas legislature has made recent significant changes in the qualifications for nondiclosure. To be eligible to have one’s case nondisclosed certain conditions must apply:
- The underlying offense must not be exempt from the statute allowing nondisclosure (must not be a disqualifying offense),
- Must have obtained a qualifying disposition of the case, and any deferred adjudication sentences must have been successfully completed,
- Any applicable waiting periods must have been met,
- Must not have prior disqualifying criminal history,
- No subsequent arrest during the waiting period.
- Offenses Exempt from Nondisclosure
Despite receiving deferred adjudication on a criminal case which results in no-conviction and dismissal of the case, certain offenses do not qualify for the nondisclosure benefit. Those nonqualifying offenses include the following:
- Aggravated kidnapping
- Capital murder; Murder
- Sex offenses; and offenses involving registration as a sex offender
- Family violence crimes
- Protective Order Violation
- Injury to a child, elderly, or disabled; Endangering or abandoning a child
- 2nd or 3rd DWI;
- DWI involving accident
- DWI w/ BAC .15 or higher
- Flying while intoxicated; Boating while intoxicated
- Human trafficking
- Possession/consumption of or selling alcohol to minors
- Operating an amusement park while intoxicated
- Must Complete any Deferred Adjudication Programs Resulting in Dismissal of the Case:
Traditionally, successful completion of a deferred adjudication program (which results in dismissal of the case) was required before an individual can petition for nondisclosure and it is still true today with the exception that now nondisclosure benefits are expanded to cover some first-time minor nonviolent misdemeanor “convictions.” See below
- Waiting Periods
There is usually a waiting period before you can file which varies depending on the charge and how the case was disposed of.
Most misdemeanors dismissed via deferred adjudication – there is no waiting period to file and may be automatic in some instances.
But for some other misdemeanors which are also dismissed via deferred adjudication – the waiting period is 2 years
- Abuse of a Corpse
- Advertising for placement of child
• Aiding suicide
• Cruelty to animals
• Deadly conduct
• Destruction of flag
• Discharge of firearm
• Disorderly conduct
• Disrupting meeting or procession
• Dog fighting
• False alarm report
• Harboring runaway child
• Hoax bombs
• Indecent exposure
• Interference with emergency telephone call
• Leaving a child in a vehicle
• Obstructing highway or other passageway
• Possession, manufacture, transport, repair, or sale of switchblade knife
• Public lewdness
• Silent or abusive calls to 9-1-1 service
• Terroristic threat
• Unlawful carrying of headgun by license holder
• Unlawful carrying weapons
• Unlawful possession of firearm
• Unlawful restraint
• Unlawful transfer of certain weapons
• Violation of protective order preventing offense caused by bias or prejudice
Felonies dismissed via deferred disposition – the waiting period is 5 years
- Certain Disqualifying Criminal History:
In addition, in order to qualify for a nondisclosure benefit the petitioner must not have certain disqualifying criminal history such as:
- A previous conviction or deferred adjudication on any of the crimes exempt from nondisclosure. For instance, if you have been previously convicted of assault family violence and later receive deferred adjudication for an assault charge, you will not qualify for nondisclosure of the otherwise qualifying assault case.
- Also, a conviction or a deferred adjudication (except for traffic tickets) during the waiting period or the deferred probation period of the crime sought to be sealed will disqualify you for nondisclosure.
SB1902 Allows for Certain Misdemeanor “Convictions” to be eligible for Nondisclosure
Effective 09/01/2015, the recent nondisclosure statute SB1902 codified under Chapter 411 of the Texas Government Code provides significant benefits allowing some misdemeanor convictions after 09/01/2015 to be sealed.
To be a qualifying misdemeannor conviction it must be a “1st time conviction” which means tha the individual must have no prior convictions (including no sealed priors) but note that even if you do have priors you may still qualify to petition for nondisclosure after deferred probation.
This law only benefits misdemenanor convictions, felony convictions remain ineligible for sealing but deferred probation dismissals can still be sealed after the waiting period (5 years) assuming all other qualifications are met.
Automatic Sealing is Now Available:
Automatice sealing is the process whereby the judge is now required to automatically grant an Order of Nondisclosure at the time of the signing of the Order of Dismissal/Discharge of the eligible crime bypassing the hiring of an attorney to file the petititon for nondisclosure and paying filing fees. To qualify for automatic sealing, the following must be met:
- Be an eligible misdemeanor, which
- is dismissed via deferred adjudication, and for which
- There is no waiting period
- The individual has no prior convictions and
- Must have no convictions subsequent to accepting deferred probation (and before the judge signs the Order of Dismissal)
HB3016 – The New Texas Law Making First-Time DWI Convictions Now Eligible for Nondisclosure.
Effective 09/01/2017, certain nonviolent misdemeanor convictions such as 1st DWIs are now eligible for nondisclosure. This law is retroactive and covers 1st DWI misdemanor convictions prior to 09/01/2017.
Disclaimer: the above article is not legal advice, but mere guidelines which are subject to change at any time according to updates and changes in the law, for an update regarding this subject of the law please call our office and schedule an appointment for a consultation.