Non-Disclosure of Criminal Records
People often call my office wanting to know why a background search revealed a deferred adjudication from 10 years ago. They were told if that if they completed the probation, the case would be dismissed. They further believed this meant that it was off their record. They were wrong. The arrest, charge, and probation remain 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 can legally deny the arrest in most circumstances.
Therefore, it is a very important tool in restoring your future. An order of non-disclosure is unfortunately only applicable to certain criminal offenses.
Changes in Non-Disclosure Laws
The Texas legislature has realized the importance of allowing people the ability to seal their past criminal records in order for them to become and stay productive members of society. But do to the fact that non-disclosure is a relatively recent remedy, and because the Texas state legislature is expanding it a little at a time, the non-disclosure statutes have become quite complicated.
Major changes in non-disclosure law have taken place with the 2015 amendments which allow for certain convictions to be non-disclosed. The 2017 amendments allow for some first-time Driving While Intoxicated (DWI) cases to be non-disclosed. You may not be entitled to an expunction, but you may still be eligible for an order of non-disclosure.
Am I Eligible for an Order of Non-Disclosure?
It is important to find out if you qualify for a non-disclosure in order to protect you and your family.
If you have successfully completed a deferred adjudication, you may be eligible for an order of non-disclosure. (However, if your charge 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).
The non-disclosure eligibility requirements are set up based on the offense date, the 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 of non-disclosure of your criminal record, please call me! I will investigate your case at no charge to see if you might qualify. I will often know if you are eligible simply by speaking with you on the phone and getting some minor details about your offense.
Below is 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 an 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 adjudications 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
In September 2015, Texas changed its non-disclosure statutes so that 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. 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 driving while intoxicated and almost every other criminal offense is that deferred adjudication has not been available for driving while intoxicated probations until just this year. Every person who accepted responsibility for the mistake he/she made received a conviction that was to remain on his/her record for a lifetime if the offense was committed before September 1, 2019. This is one of the primary reasons why 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. Also, as of September 1, 2019 the legislature has made deferred adjudication a possibility for driving while intoxicated cases. Below is a list of the primary requirements and time frames for eligibility.
- Convicted under 49.04 or if placed on Deferred Adjudication (Cannot be a second DWI, Intoxication Assault, DWI with a child in a 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 it’s in the best interest of justice to non-disclose
- We’re 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.
If you qualify under one of the categories above, it is important to obtain a non-disclosure. 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.
It is important to remember, however, that a non-disclosure is NOT the same as an expunction. While a non-disclosure does prevent the general public and potential employers from seeing an arrest, certain regulatory agencies and courts still have access to it. Also, it is important to note that there is no major difference between a deferred adjudication and a conviction community supervision probation on a DWI case. This is because both cases can still be used as enhancements in any future DWI charge.
WHAT TO DO NEXT
The non-disclosure laws have drastically changed. Many people who are now eligible to receive a non-disclosure do not even realize it. 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.