June 24, 2017

Expunctions and Orders of Non-Disclosure

Expunctions and Disclosures in Texas

There are many Texans who believe incorrectly that their deferred adjudication, deferred prosecution, pre-trial diversion, or acquittal/not-guilty verdict automatically disposes of their criminal records– this is incorrect. Expunctions, governed by Chapter 55 of the Texas Code of Criminal Procedure, and Orders of Non-Disclosure, governed by Chapter 411 of the Texas Government Code,  are not automatic processes that occur, but must be pursued by an eligible individual. This page seeks to general explain both the availability of Expunctions and Orders of Non-Disclosure in Texas.

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What is an Expunction and When is it available?

An expunction in Texas involves the destruction of all government records of the charge being expunged, including the arrest. An Expunction allows an individual to fully deny the arrest or charge even happened when asked, even in civil court proceedings.

If your arrest did not involve a conviction, it may be possible to obtain an expunction of your criminal records as they relate to that offense. You may be eligible to obtain to an Expunction if:

  • You were arrested but never charged with the offense.
  • If you completed a pre-trial diversion program (offered through the County or District Attorney’s office).
  • If your case was dismissed.
  • In felony cases, if an indictment against you was not returned by a grand jury.
  • If you were found not guilty at trial.
  • if someone else stole your identity and was arrested under your name.
  • If you were convicted of a crime by later pardoned.

As you may have noticed, your case being dismissed may mean in general that you might be eligible for an expunction, but this is not always the case. If your case was dismissed after successful completion of community supervision pursuant to Deferred Adjudication then you would be entirely ineligible for an Expunction except for Deferred Adjudication on a Class C Misdemeanor. For Class A and Class B Misdemeanors, and all Felonies, successful completion of Deferred Adjudication will only leave you potentially able to obtain an Order of Non-Disclosure.

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What is an Order of Non-Disclosure and When is it Available?

An Order of Non-Disclosure is not the same as an expunction, instead resulting in the sealing of the records related to the offense to everyone besides law enforcement and certain government agencies involved in licensing, and certain private entities involved in child safety.

If you have been placed on Deferred Adjudication community supervision for an offense, then you may be eligible to obtain an Order of Non-Disclosure. There are certain time periods that must be exhausted before you can apply, and certain offenses are ineligible for an Order of Non-Disclosure, even upon successful completion of Deferred Adjudication.

NEW FOR SEPTEMBER 1, 2017: Under the old law, one was ineligible for deferred adjudication for Driving While Intoxicated offenses, and one certainly could not obtain an Order of Non-Disclosure for a DWI. That has now changed and, effective September 1, 2017, individuals who were convicted of a first time DWI offense may be eligible to obtain an Order of Non-Disclosure. 

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Waiting Periods

There are waiting periods in many cases with both Expunctions and Orders of Non-Disclosure. For Expunctions, many times the waiting period is simply sitting out the Statute of Limitations for the offense (2 years for misdemeanors, 3 years for most felonies). For Orders of Non-Disclosure, felonies generally have a 5 year waiting period after successful discharge from Deferred Adjudication in order to apply; Some misdemeanors require a two year waiting period from successful discharge.

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Do I Need an Attorney?

While only you can decide whether or not you want to hire an attorney, the process for applying for Orders of Non-Disclosure and Expunctions can quickly get cumbersome for many, and an attorney can make the process a lot smoother. Furthermore, many times individuals who think they are eligible are not, and individuals who think they are not eligible are; an attorney can help you figure out your eligibility and whether or not you should be applying in the first place.

TO SCHEDULE A CONSULTATION, PLEASE CALL (512) 689-4299 OR EMAIL US AT INFO@TEXASVALLEYLAW.COM. RETURN HOME