If you or someone you care about was previously arrested or convicted of an offense, expunction or an order of non-disclosure can provide a fresh, new start. If you’re interested in cleaning up your record, learn more about expunctions and non-disclosures.
In the state of Texas, you may qualify for an expungement if you were arrested but never charged or if the case was dismissed because of the lack of probable cause, unavailable witnesses or insufficient evidence. In addition:
- If you were acquitted and received a not guilty verdict by a jury or judge, or if a grand jury no bills the indictment against you, you might qualify for expungement or an order of non-disclosure.
- If you completed a deferred adjudication regarding a Class C misdemeanor, you may also be eligible.
- If you pleaded guilty to a Class C misdemeanor in an alcohol-related case, you may be eligible.
- Any other case in which a finding of guilt was determined won’t qualify for an expungement.
What’s are the Differences between Non-Disclosure and Expungement?
An order of non-disclosure obscures the record from members of the public. It prevents law enforcement agents from disclosure of the previous offense. The records still exist and may be available for use against you in a later prosecution.
In an expungement, any records relating to the case are erased. The records can’t be held against you at any point in the future.
The good news is that most individuals who successfully complete a deferred adjudication may have their records sealed by an order of non-disclosure.
For felony offenses, a waiting period may apply. Some charges, including murder, sexual assault, endangering a child, or indecency with a child aren’t eligible for sealing.
In either expungement or an order of non-disclosure, your records won’t appear on a public background check. However:
- If your records are sealed by an order of non-disclosure, you can’t deny the incident or offense under oath.
- You’re allowed to deny arrest and/or court proceedings relating to the arrest in many circumstances, e.g. educational, housing, and employment applications.
Your Record after an Arrest in Texas
If you’re arrested in the state of Texas, a public record of the rest is created. If you’re eventually charged with a certain offense, the record of the charge is also made public. The status of your case—e.g., whether the case is dismissed, pending or probated—is also available.
The Texas Legislature recognizes that availability of these records can create roadblocks for individuals in a job search, apartment or house search.
Sealing or expunging one’s records reflects the government’s acknowledgement that mistakes sometimes happen. For that reason, the laws of Texas allow some ways for individuals to clear these potentially damaging records.
What is an expunction?
An expunction is the preferred way to remove an arrest or charge from public records. If an expungement is granted, the records regarding the case are completely destroyed. This fact allows the individual to state that he or she wasn’t arrested or charged.
Eligibility for expunction
Unfortunately, not everyone can qualify for an expungement in Texas.
If an individual requests and expungement and the court denies it, there really aren’t additional ways to remove the charge or arrest from that individual’s record unless the individual initiates an appeal and the court overturns the charge on appeal. He or she may also be pardoned by the governor.
For these reasons, convictions on a person’s record tend to remain as part of his or her permanent record. For instance, a DWI conviction remains on the individual’s record for life.
Expungable convictions include misdemeanor offenses of juveniles, e.g. minors convicted for truancy or certain alcohol offenses.
When an individual is convicted of a criminal charge and his or her case is dismissed after successful completion of deferred adjudication (probation), the records can’t be expunged. In some circumstances, the records can be sealed via an order of non-disclosure.
When can one’s record qualify for expungement?
Generally speaking, the individual’s dismissed charge or arrest isn’t expungable until the appropriate statute of limitations has ended on the offense. The statute of limitations depends on the offense for which the individual was charged:
- To qualify for an expungement, the individual must not be convicted of a new felony offense within five years of his or her arrest he or she wishes to erase.
- If the court believes that the charge or arrest was a criminal episode, the court won’t agree to expunge the charge or arrest if the individual was convicted of another crime occurring in that episode. (Criminal episode involves the commission of more than one offense in the following conditions: 1) the offense(s) were committed during the “same transaction,” or were pursuant to 2) the repetition of the same or a similar offense.
There may be additional requirements to obtain an expungement. Contact an experienced Texas criminal defense attorney to learn if a specific matter qualifies.
How to Receive an Expungement in Texas
An expungement is typically available in the following scenarios:
- You were acquitted of a charge filed against you.
- A jury or jury found you guilty but you received a pardon later.
- A judge or jury declared you were guilty but your innocence was proven later.
- You were arrested on a misdemeanor charge but weren’t formally charged of an offense—and the following time period has elapsed since the arrest:
- At least 180 days after a Class C misdemeanor, e.g. a traffic ticket
- One year after a Class A or Class B misdemeanor
- Three years after a felony
You won’t qualify for an expungement if you meet any of the above conditions. However, you might qualify for an order of non-disclosure.
What is the Process for Obtaining an Expungement in Texas?
- A lawsuit is initiated against the state.
- A criminal defense attorney files the Petition for Expungement with the court (in the place the charge against the individual was original filed). Note: It’s essential that the document is properly prepared and completely correct because the dismissal of the petition may have serious repercussions on the individual’s later ability to get the matter expunged later on.
- The petition is then served on the appropriate agencies, e.g. the County or District Attorney. The DA may review the petition and conclude that the matter should be expunged. If the DA doesn’t agree to expunge, he or she will arrange an expunction hearing. At that time, evidence is presented by both sides.
- After the court grants the petition, the judge signs an order to be presented to the organization or agency that maintains the individual’s charge and/or arrest records.
- The records are then completely erased or destroyed.
What Happens after the Completion of a Deferred Adjudication Probation?
As noted above, in this scenario the matter might not be eligible for expungement. An individual in that case might, in some circumstances, request an order of non-disclosure.
Some offenses for which an individual completes deferred adjudication probation aren’t eligible for sealing, including some violent felony offenses, family violence crimes, or specific sex offenses. To qualify for an order of non-disclosure, the deferred adjudication probation must be completed. If completed, the person seeking an order of non-disclosure can’t have any new convictions during a statutory waiting period (the length of which depends on the offense).
Filing a petition for non-disclosure in Texas
As with a desired expunction:
- A criminal defense attorney files a petition and notice to the District Attorney. He creates the opportunity for both sides to present evidence in a hearing.
- The judge will have greater discretion in granting an order of non-disclosure. He or she may deny the petition if he or she believes justice won’t be served in doing so.
- After granting an order of non-disclosure, agencies holding information about the charge or arrest are instructed to seal the records.
- Records are sealed from public view.
- Records are still available to members of state licensing agencies, law enforcement professionals, and others.
Obtaining an expungement or order of non-disclosure is an important if you want to clear your criminal record. Contact an experienced criminal defense attorney to discuss your eligibility.
Eligibility for an Order of Non-Disclosure in Texas
As above, if you received deferred adjudication probation, you might meet the eligibility requirements for an order of non-disclosure. Read the first page of the court judgement that placed you on probation to determine if you received deferred adjudication or regular probation.
In most cases, you may seek an order of non-disclosure:
- You haven’t been charged with a serious offense since the successful completion of deferred adjudication.
- You weren’t revoked.
- The appropriate time limits have already passed.
- You weren’t found guilty of an offense that’s barred by the law.
You may apply for an order of non-disclosure either 1) two years after a misdemeanor or 2) give years after completion of adjudication probation for an eligible felony conviction. In some misdemeanor offenses, you may file after the appropriate statute of limitations is past, including acceptance of honorarium; bail jumping/failure to appear in court; breach of computer security; burglary of a vehicle, coin-operated or coin collection machine; coercing a voter or public servant; record-laundering a credit card transaction; criminal trespass; criminal mischief; criminal simulations; commission of deceptive business practice; deceptive marketing/preparation of academic product(s); evading arrest; escape; failure to identify; false identification, posing as a peace officer, misrepresentation of a property; false report(s) regarding a missing person or child; false report(s) to a law enforcement professional or peace officer; forgery; false statement(s) to receive property or credit; graffiti; fraudulent instructions, concealing or removal or writing; gift(s) made to a public servant when subject to his or her jurisdiction; hindering a secured creditor; hindering prosecution or apprehension; improper influence; insurance fraud; issuing a bad check; illegally recruiting an athlete; interference with a railroad property; offering gift(s) to a public servant; permitting an escape; record of a fraudulent court; rigging a public-exhibited contest; simulating the legal process; tampering with government record(s); perjury (when non-aggravated); theft; theft of a service; resisting transportation, search, or arrest; publication of a telecom-access device; sale/lease of information or multichannel video services device; and others.
You may request an order of non-disclosure two years after the completion of the abuse of a corpse; assisting suicide; advertising regarding the placement of a child; assault; animal cruelty; discharge of firearm(s); attacking an assistance animal; deadly conduct; disorderly conduct; dog fighting; enticement of a child; false alarm; harassment; false report; harboring a runaway minor; indecent exposure; hoax bomb; interfering with the making or receiving on an emergency telephone call; leaving a child in a vehicle; riot; terroristic threat; possession of a prohibited weapon; silent/abusive 911 calls; unlawful possession of firearms, body armor; unlawful restraint; use of a laser pointer; unlawful carry of handgun for a license-holder; and others.
Note that aggravated sexual assault, violation of a protective order; murder; sexual assault; child endangerment; indecency with a child by exposure or contact; injury to a child; any family violence offense; or stalking will not qualify for an order of non-disclosure in Texas.
Expungement or Order of Non-Disclosure in Houston TX
As you can see, tools to clean up a criminal record are available, but most people say it’s difficult to successfully navigate the criminal justice system without an experienced defense attorney.
Admittedly, these are complex issues. A minor error in the submission of a petition or at any point in the process can—and probably will—result in a rejection.
In addition, Texas laws concerning non-disclosure and expungements are subject to change. It’s essential to use these tools now, when they’re available. Future limits to your legal rights are possible.
Contact The Law Office of Matthew D. Sharp if you have questions about expungement, non-disclosure, or any matter involving criminal law. Call Mr. Sharp in Houston at 713-868-6100 to schedule an initial case evaluation.