Expunctions & Non-Disclosures
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.
Any criminal arrest, charge or disposition, no matter how favorable, will 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 living in certain rental communities. It is important that you understand what your options are. 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.
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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 discretion to grant or deny your petition for a nondisclosure.
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.
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 order on an employment, school, military or other application. The person may even deny the offense, the arrest, and the existence of the expunction order in a civil proceeding under oath. Only in a criminal proceeding must a person acknowledge the expunction order by stating the matter has been expunged.
Government Code Sec. 411.081 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
- Murder or Capital Murder
- Injury to an Elderly Person, Child, or Disabled Person
- Abandoning or Endangering a Child
- Any case involving family violence
- Violation of a Court Order in a 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 WILL STILL 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:
- Sexual Offenses
- Trafficking of persons
- Weapons cases
- Disorderly conduct
- Offenses against the family
- Assaultive Offenses
Immediately after successful completion of probation for other misdemeanors.
Five years after dismissal and discharge of felony offenses.
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 Lowe Law, PLLC at (832) 953-LOWE(5693).
In Harris 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, 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.
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. If your case has been dismissed for any reason, contact Lowe Law, PLLC at (832) 953-LOWE(5693) to see if you criminal record can be sealed.
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 Lowe Law, PLLC, about a non-disclosure order for arrest and disposition of the lesser charge.