In October, we posted an article on Deferred Adjudication and listed some of the pros and cons of entering into that contract with the State. Now we want to give you a “Full-Disclosure” on your eligibility for a Non-Disclosure (seal your criminal record) and provide a sample petition to seal your criminal record via download from our site.
- Scenario 1: I am arrested for a Felony Offense. I take Deferred Adjudication and Judge signs order placing me on deferred. I complete Deferred Adjudication successfully. Later, I have a hearing before the Judge, and Judge signs a dismissal order for my Deferred Adjudication. Everyone is happy, except now you want a job. You apply, they run a background check, and boom! Next, you or your Criminal Defense Attorney are having to file a petition for Non-Disclosure to seal your criminal record.
Yes, a petition for Non-Disclosure and not a petition for Expunction will seal your criminal record. Under scenario 1, your arrest will be visible because no action has been taken to seal your criminal record. You see, an order for Non-Disclosure will seal your criminal record file but it still allows certain public entities with public interest to view your record. So you may be asking yourself what good does it do me if some places can see it? Simple, the order tells agencies like police departments and courts holding copies of your information, not to release and to seal them. Again, this is not as good as an expunction but sure beats having every HR rep looking at YOUR business. On top of that, sealing your record with an order for Non-Disclosure gives you confidence when you fill out job applications. With your record sealed and the order for Non-Disclosure in place, you can confidently check “ NO” when asked if prior convictions apply. Now, caution must be taken when applying with criminal justice entities, school districts, public hospitals, and licensing boards because these guys can break through that protective seal which the order of non-disclosure creates for you. (This is not an exhaustive list and it’s best to have your attorney look into it.)
What we learn from scenario one is that we are not eligible for an expunction following your basic deferred adjudication. The Code of Criminal Procedure Ch. 55.01 details the criteria for someone eligible for an expunction. With an expunction, you are essentially granted a right to permanently remove information about an arrest, charge, or conviction (Appeal Reversal or Pardon from Texas Governor or President) from your permanent records. Keep in mind that you are not eligible for an expunction if you are granted deferred adjudication (unless deferred adjudication of class c). The purpose of this article is not to get into the specifics of when or how to apply for an expunction but to provide you some confidence if your attorney seems unsure.
- Scenario 2: I am arrested for an Offense. I take Deferred Adjudication and Judge signs order placing me on deferred. During Deferred Adjudication period, I mess up. At adjudication of guilt hearing, judge finds me guilty and places me on regular community supervision (probation). I finish probation. Later, I have a hearing before the Judge, and I complete regular Community Supervision successfully. Everyone is happy, except now you want a job. You apply, they run a background check, and boom! Next, you or your Criminal Defense Attorney discuss your case and you want to file a petition for non-disclosure. You are not eligible.
Under Scenario 2 you are NOT eligible for an order for Non-Disclosure because you did not “successfully” complete your deferred adjudication. Not only did you not finish, you were adjudicated guilty and the judge did not sign a dismissal order for your deferred adjudication.
Scenario 2 basically teaches you that even though you start on deferred adjudication, what you finish with determines your eligibility for a Non-Disclosure. Again, these scenarios are simply a tool to put non-disclosure in perspective and by no means represent every scenario.
So, a basic go by to determine if you qualify to have your record sealed with an order for non-disclosure is as follows:
- You were actually placed on Deferred Adjudication by Judge of your court, and you can prove it with a signed order.
- You can prove that you successfully completed Deferred Adjudication, and you have an order of dismissal and discharge from your court.
- The offense you were placed on Deferred Adjudication for must be an offense that is eligible for Non-Disclosure and not one of the three categories of ineligible offenses. The first category consists of violations of any of the following sections of the Texas Penal Code: 19.02, 19.03, 20.04, 22.04, 22.041, 25.07, and 42.072. The Texas Penal Code is available online at http://www.statutes.legis.state.tx.us. The second category consists of offenses that require registration as a sex offender. The third category consists of offenses involving family violence.
- Cannot have any disqualifying criminal history. If the offense in question is a felony, you may not file a petition for an order of nondisclosure until the fifth anniversary after your dismissal and discharge. If the offense is a misdemeanor under Chapter 20, 21, 22, 25, 42, or 46 of the Texas Penal Code, your wait is shorter. Specifically, you may not file a petition for an order of nondisclosure until the second anniversary after your dismissal and discharge. For any other misdemeanor, there is no waiting period. You may file a petition seeking an order of nondisclosure once the Court issues an order of dismissal and discharge.
5. You must have waited a certain period of time after the court’s order of dismissal and discharge.
6. You must not have any convictions for anything other than transportation code violation during 5 above and not placed on deferred for another offense during that certain period. If you feel your attorney is unsure, do yourself a favor and do a little research. It’s better to know, than to have your personal records show. If you want to seal your criminal record, it can be done on your own with helpful resources. However, we recommend that to seal your criminal record you contact an attorney who can help you seal your criminal record.
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