Stephen R. Cochell
Expunctions and Nondisclosures
Expunctions and Orders of Non-Disclosure
A mistaken arrest or a completed deferred adjudication may be preventing you from getting a job in your desired career. Despite the fact that criminal charges may have been dropped, wrongfully arrested or indicted, or completed deferred adjudication, background checks will show potential employers your criminal history. Because background checks are becoming more and more common among employers, it is critical to remove criminal history that may prevent you from getting a good job and to clear your good name.
Do I qualify for an Expunction or an Order of Non-Disclosure?
If you have successfully completed deferred adjudication for a crime then you may qualify for an Order of Non-Disclosure. This order prevents potential employers from seeing a criminal history that disqualifies you from certain jobs.
You may be entitled to an Expunction if: (1) you were arrested but never indicted by a grand jury; (2) if you completed pre-trial diversion; (3) if your case was dismissed by the District Attorney; (4) if it was no-billed by a grand jury; (5) if you were found not guilty at trial; (6) if someone else was arrested using your name; or (6) if you were convicted but later pardoned.
How do I qualify for an Order of Non-Disclosure?
- You must be discharged from Deferred Adjudication, in which the court did not proceed to an adjudication of guilt as under Texas Code of Criminal Procedure, article 42.12, section 5(c).
- You cannot have committed or been convicted for an offense requiring registration as a sex offender, an offense involving family violence, murder, aggravated kidnapping, injury to a child, disabled person, or elderly, or aggravated stalking.
- You may not be convicted of any criminal offense that has the potential of jail time during the time you are on deferred adjudication (this excludes traffic tickets and other “fine only” convictions).
Any charge in which you have been placed on probation is considered a plea of guilty and therefore you are disqualified from pursuing an Order of Non-Disclosure.
Has enough time elapsed to get an Order of Non-Disclosure?
- If you committed a felony that is not an offense requiring registration as a sex offender, an offense involving family violence, murder, aggravated kidnapping, injury to a child, disabled person or elderly, or aggravated stalking, then you must wait five years from the date of successful discharge of your deferred adjudication.
- If you committed a misdemeanor that is under Texas Penal Code Section 20 (not including aggravated kidnapping), Sections 21, 22 (not including injury to a child, elderly, or disabled person), Section 25 (not including violations of bond in family violence, sex trafficking, stalking, or sexual harassment), Sections 42, or 46, then you must wait two years from the date of successful discharge of your deferred adjudication.
- All other misdemeanor offenses are immediately able to be petitioned for a non-disclosure at the discharge date of your successful deferred adjudication.
What is the effect of an Order of Non-Disclosure?
If the Court successfully grants your petition of non-disclosure, then your records are sealed from the general public, meaning general background searches by employers would not be able to find these records. However, they are available to law enforcement and the state for licensing purposes (such as driver’s license, concealed carry, fishing and hunting, etc.).
How Do I qualify for an Expunction?
In order to qualify for an expunction you must have been charged with a crime. The crime must have been dismissed by the District Attorney’s Office. You must have been released from custody. Any other charges related to the event must not have resulted in a final conviction and are no longer pending by the District Attorney. Lastly, you cannot have agreed to a plea-bargain court-ordered community supervision, which usually results from deferred adjudication.
In sum, you can only apply for an expunction if the charge in which you are trying to get expunged was dropped, you were found to be innocent, and if there were other charges in connection with the charge you are trying to get expunged, those charges were dismissed or you were found innocent.
If you took a plea-bargain in which you received deferred adjudication for one charge and the other charge or charges were dismissed, then you cannot receive an expunction for the charge or charges that were dropped in plea-bargain.
Furthermore, you cannot have been released on a conditional discharge under former Section 481.109 of the Texas Health and Safety Code. Lastly, you cannot have been convicted of a felony in the five years preceding the date of the arrest of the charge you are trying to get expunged.
What is the effect of an Expunction?
The purpose of an expunction is to restore the person’s status as if the arrest and following charges had not occurred. An expunction deletes and destroys all records pertaining to your arrest and that specific charge or set of charges. There will be no records that it ever happened. Unlike an order of non-disclosure, all records of the event are destroyed and thus no state or federal agency will have record of the event happening. Notices to stop dissemination of your criminal records regarding the charge that has been successfully expunged will be sent to state and private entities that might be disseminating your criminal history (such as companies that provide background searches and information) to others.
If a private entity fails to comply with the Expunction Order and continues to disseminate your expunged criminal record there are remedies under the Fair Credit Reporting Act. If a state or local agency fails to comply with the Expunction Order then you may file a petition for a writ of mandamus.