Many times people have called my office wanting to know why a background search revealed a deferred adjudication from 10 years ago. You were told if you completed the probation the case would be dismissed. You further believed this meant that it was off your record. You were wrong! The arrest, charge, and probation are there for everyone to see.

Non-disclosures keep the general public from being able to find the record of your arrest; however, certain licensing agencies, police, and governmental agencies will still have access to your record. When a non-disclosure has been granted, you are allowed to legally deny the arrest. Therefore, it is a very important tool to restoring your future. An order of non-disclosure is unfortunately only applicable to certain criminal offenses.

Major changes in non-disclosure law have come into effect September 1, 2015. You may not be entitled to an expunction but may still be eligible for an order of non-disclosure.

If you have successfully completed a deferred adjudication, you may be eligible for an order of non-disclosure. You may also be eligible in certain situations to have your criminal record expunged even when it is a conviction for certain misdemeanor offenses (Please see non-disclosure for probation and jail offenses below). However, if you have successfully completed a deferred adjudication on a Class C Misdemeanor, you may still be eligible for an expunction.

Non-Disclosure for Deferred Adjudication Offenses:

  • The court must have given you deferred adjudication community supervision.
  • The deferred adjudication must also be completed successfully. Once completed, the court should give an order of dismissal and discharge.
  • The particular offense must qualify as an offense which can receive an order of non-disclosure. The offenses which disqualify a person from receiving an order of non-disclosure are those which:
    • Require a person to register as a sex offender,Have an affirmative finding of assault family violence, or
    • Have an affirmative finding of assault family violence, orAre prohibited under the Texas Penal Code.
    • Are prohibited under the Texas Penal Code.
    • Murder, capital murder, aggregative kidnapping, injury to a child, elderly or disabled individual, abandoning or endangering a child, stalking, or violating bond orders in a sexual assault, stalking or trafficking case. (Texas Penal Code §§ 19.02, 19.03, 20.04, 20A.02, 20A.03, 22.04, 22.041, 25.07, 25.072, 42.072).
  • You must also not have any of the above criminal offenses on your record. Even if the offense occurred a long time ago.
  • You must have waited the appropriate amount of time after the court ordered the dismissal and discharge.
    • For a felony case, you must wait five years from when you received the dismissal and discharge.
    • For a misdemeanor listed below, the wait time is only two years from when you received the dismissal and discharge (Penal Code Chapters 20, 21, 22, 25, 42, 43,46, and 71).
    • Organized Criminal Activity
    • Kidnapping, false imprisonment
  • Sexual offenses
    • Assaultive offenses
    • Offenses against the family
    • Disorderly related offenses
  • Weapons offenses For all
    • For all other misdemeanors, you can apply for an order of non-disclosure as soon as the court orders the dismissal and discharge.
  • Lastly, you must not have been convicted of a criminal offense or plead to deferred adjudication during those specified time periods mentioned above, for any offense greater than a Class C Misdemeanor.

Non-disclosures for Probation and Jail Time Offenses

Texas has recently changed its non-disclosure statutes so that after September 1, 2015, the laws have spread to several sections of the Government Code (§ 411.071-077). These changes apply not only to those who were given deferred adjudication but also in limited situations to those who were convicted of certain misdemeanor offenses.

Under sections 411.073 and 411.0735 of the Government Code, a person may now be eligible for non-disclosure if he or she received probation or jail time for certain misdemeanors. The steps mentioned above for deferred adjudication also apply for probation and jail time. However, if you received probation or jail time for the crimes listed below, you are precluded from receiving a non-disclosure.

  • Driving under the influence of alcohol (Alcoholic Beverage Code § 106.041),
  • Driving while intoxicated (Alcoholic Beverage Code § 49.04),
  • Flying while intoxicated (Alcoholic Beverage Code § 49.05)
  • Boating while intoxicated (Alcoholic Beverage Code § 49.06),
  • Operating an amusement park ride while intoxicated (Alcoholic Beverage Code § 49.065), or
  • Any organized criminal activity (Penal Code Chapter 71).

For Jail time cases the standard waiting period to apply for a non-disclosure differs from deferred adjudication and probation cases. The waiting period for these cases is two years after the person is released from confinement. There is no ability to immediately apply for a non-disclosure once you are released from jail.

Human Trafficking Victims

Under Section 411.0728, those convicted of prostitution and sentenced to probation may qualify for a non-disclosure. The law requires:

  • The person successfully complete probation,
  • Have the conviction set aside under the Judicial Clemency Act, and
  • Convince the judge that the person committed this crime solely as a victim of human trafficking.

Human trafficking and prostitution are seen as serious offenses under our law and within our society. The ability to receive a non-disclosure for one of these offenses is vastly important.

Exceptions to the Non-Disclosure

It is important to obtain a non-disclosure if you qualify under one of the categories above. Many of these offenses can prevent you from getting a job or furthering your education. If an ordered non-disclosure is granted, the law allows you to deny the existence of the arrest in most circumstances. It is important to find out if you qualify for a non-disclosure in order to protect you and your family.

The non-disclosure will not be given to anyone unless it is for criminal justice purposes or a certain regulatory agency. The regulatory agencies who can access these records have not changed, but it is important to understand that banks are included in this list. However, they can only obtain these records if it regards an application for employment.

The non-disclosure law has drastically changed. Many people who are now eligible to receive a non-disclosure do not even know. It is important to consult with me about your criminal charge or deferred adjudication as soon as possible so we can determine if a non-disclosure is possible. You and your attorney worked hard to put you in a position to apply for a non-disclosure. It is essential that you follow up with a non-disclosure attorney to obtain that result.

Statutes Relating to Non-Disclosure

  • Section 411.0715: Definition of Deferred Adjudication Community Supervision for Purpose of Receiving Order of Non-disclosure
  • Section 411.072: Procedure for Deferred Adjudication Community Supervision; Certain Nonviolent Misdemeanors
  • Section 411.0725: Procedure for Deferred Adjudication Community Supervision; Felonies and Certain Misdemeanors
  • Section 411.0728: Procedure for Certain Victims of Trafficking of Persons
  • Section 411.073: Procedure for Community Supervision Following Conviction; Certain Misdemeanors
  • Section 411.0735: Procedure for Conviction and Confinement; Certain Misdemeanors
  • Section 411.074: Required Conditions for Receiving an Order of Non-disclosure
  • Section 411.0745: Petition and Order
  • Section 411.075: Procedure After Order
  • Section 411.076: Disclosure by Court
  • Section 411.0765: Disclosure by Criminal Justice Agency
  • Section 411.077: Disposition Fee; Department of Public Safety Report

Call Fort Worth criminal attorney Stephen Handy today at (817) 284-2262 (work) or (817) 307-0679 (cell), if you need help with non-disclosure of criminal records. He offers one-on-one personal service. He represents clients seeking a non-disclosure of criminal records in Tarrant County and all surrounding areas.