People often call 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 in most circumstances. 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 taken place with the 2015 amendments allowing for certain convictions to be non-disclosed and then again in 2017 allowing for some first time driving while intoxicated cases to be non-disclosed. 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. However, if it was a Class C misdemeanor you are probably eligible for an expunction of your criminal record. You may also be eligible for an order of non-disclosure in certain situations even if you received a conviction (Please see non-disclosure for probation and jail offenses below). On September 1, 2017 an enormous addition to the non-disclosure statute came into effect allowing for some first time driving while intoxicated convictions to be eligible for an order of non-disclosure.
The non-disclosure statutes have become quit complicated. Primarily because the legislature has realized the importance and need for people to have their past criminal record sealed in order for them to become and stay productive members of society. But non-disclosure is a relatively recent remedy and the Texas state legislature is expanding a little at a time. The non-disclosure eligibility requirements are set up based on the offense date, they type of case, and the type of disposition. It is easy to read one statute and believe you are not eligible and then read the next statute to find out you are. If you think you may be eligible for an order non-disclosure of your criminal record please call me and let me investigate at no charge to see if you might qualify. I will often know simply by speaking with you on the phone and your ability to give me some minor details about your offense. Below are a list of some of the basic areas in which you may be eligible.
Non-Disclosure – 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;
- An offense involving family violence or with affirmative finding of family violence;
- Murder, capital murder, aggravated 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 cited 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 not have been arrested on any subsequent charges greater than a Class C Misdemeanor during any mandatory waiting periods.
- Some misdemeanor deferred’s once successfully completed will immediately be eligible for a non-disclosure, others will have a two year waiting period.
- Felonies generally require a five year waiting period.
- Lastly, you must not have been convicted of a criminal offense or plead to deferred adjudication during the probation or 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 under this particular statute.
- 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 convictions without probations 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.
Non-Disclosure – Driving While Intoxicated Convictions
The biggest difference between people accused of driving while intoxicated and almost every other criminal offense is that deferred adjudication is not even an option for driving while intoxicated probation. Every person that accepted responsibility for the mistake they made that day received a conviction that was to remain on their record for the rest of their lives. This is one of the primary reasons good defense lawyers are so often in trial fighting these charges. Fortunately as of September 1, 2017 the legislature has now allowed for certain first time DWI convictions to be non-disclosed. Below is a list of the primary requirements and time frames for eligibility.
- Convicted under 49.04 (Cannot be a second DWI, Intoxication Assault, DWI with child in vehicle, or a DWI above .15)
- Not previously convicted or placed on deferred adjudication for any offense other than a fine only traffic violation
- Judge finds its in the best interest of justice to non-disclose
- Were not punished under the .15 alcohol enhancement
- Was not an accident involving another person, including a passenger
- Successfully completed probation
- Waiting periods for eligibility;
- Two years after completion of probation if an interlock was required for at least 180 days.
- Five years after completion of probation if an interlock was not required for at least 180 days.
- Three years after release from custody if there was an interlock ordered for at least 180 days.
- Five years after release from custody if there was not an interlock ordered.
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. The law specifically states in Tx. Govt. Code 411.0755 that a person whose criminal history record information is the subject of an order of non-disclose of criminal history record information issued under this sub-chapter is not required in any application for employment, information, or licensing to the state that the person has been the subject of any criminal proceeding related to the information that is the subject of the order. 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 411.0727: Procedure following successful completion of Veterans Treatment Court Program
- Section 411.0728: Procedure for Certain Victims of Trafficking of Persons
- Section 411.073: Procedure for Community Supervision Following Conviction; Certain Misdemeanors
- Section 411.0731 Procedure of community Supervision Following Conviction: Certain Driving While Intoxicated Convictions
- Section 411.0735: Procedure for Conviction; Certain Misdemeanors
- Section 411.0736 Procedure for Conviction; Certain Driving While Intoxicated Convictions
- 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 411.0755 Statement in Application for Employment, Information, or Licensing
- Section 411.076: Disclosure by Court
- Section 411.0765: Disclosure by Criminal Justice Agency
- Section 411.077: Disposition Fee; Department of Public Safety Report
- Section 411.0755: Admissibility and use of Certain Criminal History Record Information in Subsequent Criminal Proceeding
Call Fort Worth criminal attorney Stephen Handy today at (817) 284-2263(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.