Petition for Non-Disclosure

Petition for Non-Disclosure

To qualify to have your case sealed under an order of non-disclosure, you must have been given deferred adjudication and successfully completed that probation period. Once granted, an order of non-disclosure will prevent law enforcement agencies from making your records available to the public.

It also allows you to deny the occurrence of the arrest and prosecution. It will prevent a private entity that compiles and disseminates for compensation criminal record information from compiling or disseminating information that is covered by the order of non-disclosure.

However, sealing a record is not the same as expunging a record. Sealing prevents its release to the public, but the records will stay available to the law enforcement community and to certain state agencies such as most state licensing agencies. In any subsequent criminal proceeding, the information can still be used against you.

Deferred Adjudication Records ARE PUBLIC RECORDS

There is a common misconception that deferred adjudication records are removed from a defendant's criminal history upon successful conclusion of the community supervision (probation) period. In fact, the law does not provide for automatic expunction of deferred adjudication records.

The records do become part of the defendant’s “permanent record” and the arrest, court process and probation record will appear on a criminal background check.

Accordingly, unless there is a court order directing otherwise, records of a prosecution resulting in a deferred adjudication are publicly available in 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.

In addition, the records of the arrest, investigation and jailing are on file with the investigating agency, with the agency that jailed or processed the Defendant upon arrest, and with the magistrate who set bond and conducted the initial appearance.

Under Certain Circumstance Deferred Adjudication Records Can Be Made NON-PUBLIC

There are two ways that deferred adjudication community supervision records can be made non-public:

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.

Petition for nondisclosure

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 offender was placed on deferred adjudication. There are many offenses, however, for which this procedure is unavailable. Moreover, a defendant may be disqualified if he commits an offense after the deferred adjudication has been completed and before filing the petition.

Who is NOT entitled to seek an Order of Nondisclosure?

Anyone who has ever committed any of the following offenses (including the offense for which the defendant got deferred adjudication) is not entitled to seek an order of nondisclosure:

• Indecency with a child
• Sexual assault
• Aggravated sexual assault
• Prohibited sexual conduct (incest)
• Aggravated kidnapping
• Burglary of a habitation with intent to commit any of the above offenses
• Compelling prostitution
• Sexual performance by a child
• Possession or promotion of child pornography
• Unlawful restraint, kidnapping, or aggravated kidnapping of a person younger than 17 years of age
• Attempt, conspiracy, or solicitation to commit any of the above offense
• Capital murder
• Murder
• Injury to a child, elderly individual, or disabled individual
• Abandoning or endangering a child
• Violation of protective order or magistrate's order
• Stalking
• Any other offense involving family violence

What are the WAITING PERIODS for seeking an Order of Non-Disclosure?

Under Section 411.081(d), the defendant has 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 that the deferred adjudication was concluded.

All felonies, the waiting period is 5 years from date of discharge and dismissal.

The following misdemeanors: 2 years from date of discharge and dismissal.

• Abuse of corpse
• Advertising for placement of child
• Aiding suicide
• Assault
• Bigamy
• Cruelty to animals
• Deadly conduct
• Destruction of flag
• Discharge of firearm
• Disorderly conduct
• Disrupting meeting or procession
• Dog fighting
• False alarm or report
• Harassment
• Harboring runaway child
• Hoax bombs
• Indecent exposure
• Interference with emergency telephone call
• Leaving a child in a vehicle
• Making a firearm accessible to a child
• Obstructing highway or other passageway
• Possession, manufacture, transport, repair or sale of switchblade knife or knuckles
• Public lewdness
• Riot
• Silent or abusive calls to 9-1-1 service
• Terroristic threat
• Unlawful carrying of handgun by license holder
• Unlawful carrying weapons
• Unlawful possession of firearm
• Unlawful restraint
• Unlawful transfer of certain weapons
• Violation of protective order preventing offense caused by bias or prejudice

All other misdemeanors: May file immediately upon discharge and dismissal.

What is the PROCEDURE for Filing a Petition for Non-Disclosure?

The Petition for Non-Disclosure must be filed in the Court that heard the original criminal case and should be filed under the same CRIMINAL case number.

The following information should be included in the Petition for Non-Disclosure:

• The original court and cause number in which the deferred adjudication was imposed.
• The date of the original plea of guilty or no contest.
• The offense for which the defendant was placed on deferred adjudication.
• The date upon which the court dismissed the proceedings and discharged the defendant from deferred adjudication community supervision.

Generally, the petition will be docketed for a hearing in the original court fourteen days after the date of filing. Do not miss the hearing date, or the petition may be dismissed for want of prosecution.

A defendant needs to be prepared to provide evidence of the following elements:

• The defendant entered a plea of no contest or guilty to the offense
• The Court placed the defendant on deferred adjudication community supervision.
• The Court dismissed the proceedings in this case and discharged the defendant from deferred adjudication community supervision.
• The defendant is not disqualified from filing a petition under Section 411.081(e).
• The petition was timely filed under Section 411.081(d).
• Issuance of the order is in the best interest of justice.

The Court will either sign an order granting the petition or denying the petition.

What Happens Once the Court Signs the Order of Non-Disclosure?

The court's order will be sent to the Department of Public Safety. The Department of Public Safety will then send the order to all law enforcement agencies, jails or other detention facilities, magistrates, courts, prosecuting attorneys, correctional facilities, central state depositories of criminal records, and other officials or agencies or other entities of this state or of any political subdivision of this state, and to all central federal depositories of criminal records that there is reason to believe have criminal history record information that is the subject of the order.

Those entities are 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