Petition for Non-Disclosure
Non-Disclosure is different than an expunction. An expunction order requires the destruction of all references and records of the person’s case from public records. The Texas Department of Public Safety (TxDPS) requires the federal repository to return any copies to the TxDPS, which then destroys them. The actual court record ordering the expunction is itself destroyed 60 days to 1 year after the order is issued.
Non-Disclosure requires the TxDPS to send a copy of the Non-Disclosure order to all law enforcement agencies, jails, and other entities that are typically given a copy of these types of activities. Once the Non-Disclosure order is sent, the government agencies are ordered to seal the records, but not to destroy them. These agencies cannot disclose the offense, but must retain the records. The prior criminal record can be used against the person in a later prosecution. A person’s case is eligible for only one of these two services and the eligible service is based on the sentence given for that case.
Start Your Petition for Nondisclosure Today
The frequency of criminal background checks has increased significantly. With information readily available on the internet, a criminal background search of a person on the Texas Department of Public Safety website costs just $3. Employers want to learn more about the background of potential employees. Apartment managers want to know who they are renting to. This creates difficult circumstances for people who have criminal charges on their records by forever impacting their ability to find a job or apartment.
Texas law allows two main procedures: The first is Expunction, which is primarily for people whose charges were dismissed or who won not-guilty verdicts in trial. The second, a Petition for Nondisclosure, applies only to people who successfully completed Deferred Adjudication for certain offenses.
Since Expunctions or Non-Disclosures do not apply to a final conviction, any person sentenced to jail or prison, or has a final conviction on their record, cannot clear that conviction from his or her record. The only exception is a pardon granted by the Governor or the conviction is challenged through a writ of habeas corpus.
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What is Petition for Criminal Non-Disclosure?
When a person successfully completes Deferred Adjudication, his or her case will be dismissed, and they will not have a conviction on their record. However, because deferred adjudication records are public record, they are not automatically removed from a person’s criminal history or criminal background upon successful conclusion of the community supervision (probation) period. The law does not provide for Expunction of Deferred Adjudication records. The records become part of the person’s permanent record. The arrest, court process, plea of guilty, probation and dismissal will all appear on a criminal background check.
Unless there is a court order, records of a prosecution resulting in a Deferred Adjudication are publicly available on the District Clerk’s (felony) and County Clerk’s (misdemeanor) records, the Texas Crime Information Center database maintained by the Texas Department of Public Safety, and the National Crime Information Center maintained by the Department of Justice. The records may also be held by any Judges, Magistrates, Justices of the Peace, pre-trial services offices, city, state, or county police agencies.
There are two ways Deferred Adjudication community supervision records can be made non-public:
1. Petition for Non-Disclosure:
Under Section 411.081(d), Government Code, a court can prohibit criminal justice agencies from disclosing to the public criminal history record information related to certain offenses for which the person was placed on Deferred Adjudication. There are many offenses, however, for which this procedure is unavailable.
2. Class C Deferred Adjudications:
By filing an expunction under Article 45.051(e), Code of Criminal Procedure (if the Class C deferred adjudication was imposed in justice court or municipal court), or by filing an expunction under Article 55.01(a)(2), Code of Criminal Procedure (if the Class C deferred adjudication was imposed in county or district court). Expunction is not available for deferred adjudication sentences for Class B, Class A, or felony offenses.
A defendant may be disqualified if he commits an offense after the deferred adjudication has been completed and before filing the petition.
Anyone who has ever committed any of the following offenses (including the offense for which the defendant received Deferred Adjudication) is not entitled to seek an order of nondisclosure:
- Abandoning or endangering a child
- Aggravated kidnapping
- Aggravated sexual assault
- Attempt, conspiracy, or solicitation to commit any of the above offenses
- Burglary of a habitation with intent to comment any of the above offenses
- Capital murder
- Compelling prostitution
- Indecency with a child
- Injury to a child, elderly individual, or disabled individual
- Murder
- Possession or promotion of child pornography
- Prohibited sexual conduct (incest)
- Sexual assault
- Sexual performance by a child
- Stalking
- Unlawful restraint, kidnapping, or aggravated kidnapping of a person younger than 17 years of age
- Violation of protective order or magistrate’s order
- Any other offense involving family violence
Petition for Nondisclosure Waiting Periods
Under Section 411.081(d), a defendant may need to wait a certain period of time after the date of discharge and dismissal before filing a petition for an order of nondisclosure. The operative date is not the date that the defendant entered his plea; it is the date the deferred adjudication was concluded.
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| Type of Offense | Waiting Period |
|---|---|
| All Felonies | 5 years from date of discharge and dismissal |
|
2 years from date of discharge and dismissal |
| All other misdemeanors | May file immediately on discharge and dismissal |
What Is The Procedure for Filing a Petition for Non-Disclosure?
The Petition for Non-Disclosure will be filed in the original court filed under the same criminal case number.
Normally, the petition will be set for a hearing in the original court 14 days after the date of filing. If the hearing date is missed, the petition may be dismissed.
A person needs to be prepared to provide evidence of the following elements:
- The person entered a plea of No Contest or Guilty to the offense
- The Court placed the person on Deferred Adjudication community supervision
- The Court dismissed the case and ended the person from participating in Deferred Adjudication community supervision
- The person is not disqualified from filing a petition under Section 411.081(e). The petition was timely filed Issuance of the order is in the best interest of justice
Contact Attorney Romy B. Kaplan here.
What Happens After the Court Signs the Order of Non-Disclosure?
The court order will be sent to the Department of Public Safety. The Department of Public Safety will send the order to all public agencies believed to have records of the case. In addition, those agencies are to send copies of the order to all private databases that they share information with.
These agencies are then obliged not to disclose the Deferred Adjudication record information to anyone other than:
- Other criminal justice agencies
- For criminal justice or regulatory licensing purposes
- An agency or entity listed in Section 411.081(i)
- The person who is the subject of the order
Each petition for an order of Non-Disclosure will be judged on its own merit. The judge will consider a number of factors when determining whether to grant the petition for Non-Disclosure. Under Texas law, an order of Non-Disclosure cannot be obtained for an offense for which the petitioner has been convicted.
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