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NON-DISCLOSURE

When a Certificate of Non-Disclosure is granted, the various criminal justice agencies and facilitators are stopped from releasing records of your criminal history to the public; eligibility for a non-disclosure arises at the completion and dismissal from a Deferred Adjudication. Eligibility and time periods are different for the various types of crimes for which a Certificate of Non-disclosure is eligible.

CLASS C MISDEMEANORS

All Class C misdemeanors are eligible for Expungement/Expunction after successful completion and termination of Deferred Adjudication.

ELIGIBILITY FOR NON-DISCLOSURE

After the successful completion of deferred adjudication and dismissal of your case, you may be eligible for a NON-DISCLOSURE. All Felonies have a time period of five years from the date you successfully completed your Deferred Adjudication.

Many Felonies and some Misdemeanors are not eligible for a NON-DISCLOSURE. Some Misdemeanors are immediately eligible for a CERTIFICATE OF NON-DISCLOSURE and many others have a waiting period of 2 years.

Some Misdemeanors are not eligible for non-disclosure. If you have any questions, please call to arrange a private consultation at 713-228-4607 or please see below.

Are deferred adjudication records public?

Yes. Although 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, the law does not provide for automatic expunction of deferred adjudication records.

Can deferred adjudication records be made non-public by request?

Yes, in some instances. There are two ways that deferred adjudication community supervision records can be made non-public:

1. 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, 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.
2. 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 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. Click here for a link to Section 411.081(d).

Which defendants are ineligible to seek an order of nondisclosure?

Under Section 411.081(e)(1)-(4), Government Code, anyone who has ever committed any of the following offenses (including as 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 offenses
• 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 which is defined as:

1. An act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself
2. Physical injury by a member of a family or household toward a child of the family or household that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm
3. Sexual conduct by a member of a family or household toward a child of the family or household harmful to a child’s mental, emotional, or physical welfare, including conduct that constitutes the offense of indecency with a child under Section 21.11, Penal Code, sexual assault under Section 22.011, Penal Code, or aggravated sexual assault under Section 22.021, Penal Code
4. Conduct by a by a member of a family or household toward a child of the family or household compelling or encouraging the child to engage in sexual conduct as defined by Section 43.01, Penal Code; or
5. Dating violence, e.g. an act by an individual that is against another individual with whom that person has or has had a dating relationship and that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the individual in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.

Which defendants are disqualified from seeking an order of nondisclosure?

Any defendant who, after the date of discharge and dismissal, has been convicted or placed on deferred adjudication for any offense other than a traffic offense punishable by fine only.

When is an otherwise eligible defendant allowed to seek an order of nondisclosure?

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 — 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 switch blade 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.

In all of these petitions, you will need the following information:

• 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.

When will the petition be heard?

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.

What is the effect of the order of nondisclosure?

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 defendant is not disqualified from filing a petition under Section 411.081(e).
• The person who is the subject of the order.

Houston criminal defense attorney Jack B. Carroll is phone reachable at 713-228-4607 for inquiries about Certificates of Non-Disclosure and having criminal records sealed. If you are seeking a Certificate of Non-Disclosure or need to consult with a Board Certified criminal defense attorney that has experience dealing with this form of criminal litigation, call Jack or use our contact form to message our legal team.

About Certificates of Non-Disclosure

Jack B. Carroll & Associates