Texas’s New Nondisclosure Law

When Texas first passed its nondisclosure statute, it allowed some people with successfully completed deferred-adjudication probation to seek an order of nondisclosure effectively sealing the public records of their arrest. Nondisclosure had to be “in the best interest of justice,” so it was effectively at the trial court’s discretion.

Since then the right to nondisclosure has been broadened.

Section 411.074 General requirements for Nondisclosure

To be eligible for nondisclosure, every defendant must:

  • Neither have been convicted nor been placed on deferred-adjudication probation during the waiting period applicable to the case;
  • Not be seeking nondisclosure for:
    • An offense requiring sex-offender registration;
    • Aggravated kidnapping;
    • Murder; Capital Murder;
    • Trafficking of Person;
    • Injury to Child, Elderly, or Disabled;
    • Abandoning or Endangering Child;
    • Violating Court Order in family-violence, sexual-assault, stalking, or trafficking case;
    • Stalking;
    • Family Violence; or
    • A case in which the trial court made an affirmative finding of family violence.

Nondisclosure of Deferred-Adjudication Probation

Section 411.072 Mandatory Nondisclosure of Deferred-Adjudication Probation

A defendant who successfully completes a deferred-adjudication probation for a misdemeanor after September 1, 2017 and satisfies the general requirements of section 411.074 is entitled to expunction (the court has no discretion to deny it) if:

  • It is not an offense under:
    • Chapter 20 Kidnapping, Unlawful Restraint, Smuggling Persons;
    • Chapter 21 Sexual Offenses;
    • Chapter 22 Assault;
    • Chapter 25 Offenses Against the Family;
    • Chapter 42 Disorderly Conduct;
    • Chapter 43 Public Indecency;
    • Chapter 46 Weapons Offenses; or
    • Chapter 71 Organized Crime;
  • And there is no offirmative finding of family violence.
  • And the defendant has never, other than this case, been convicted or placed on deferred adjudication.
  • And at least 180 days have passed since the defendant was placed on deferred-adjudication probation (that is, if he had a 90-day deferred he has to wait another 90 days for nondisclosure).

Section 411.0725 Discretionary Nondisclosure of Deferred-Adjudication Probation

A person who is not eligible for mandatory nondisclosure under section 411.072 (because of a felony deferred-adjudication probation, or a misdemeanor excluded under section 411.072’s laundry list, or priors) but satisfies the general requirements of section 411.074 may still seek discretionary nondisclosure (“in the best interest of justice”).

He may do so:

  • Even if he has been convicted or placed on deferred adjudication in another case.
  • He waits until (this is the waiting period referred to in section 411.074):
    • Immediately after the discharge and dismissal if:
      • The case is a misdemeanor; and
      • It is not an offense under
        • Chapter 20 Kidnapping, Unlawful Restraint, Smuggling Persons;
        • Chapter 21 Sexual Offenses;
        • Chapter 22 Assault;
        • Chapter 25 Offenses Against the Family;
        • Chapter 42 Disorderly Conduct;
        • Chapter 43 Public Indecency;
        • Chapter 46 Weapons Offenses; or
        • Chapter 71 Organized Crime;
    • Two years after the discharge and dismissal if:
      • The case is a misdemeanor; and
      • It is an offense under
        • Chapter 20 Kidnapping, Unlawful Restraint, Smuggling Persons;
        • Chapter 21 Sexual Offenses;
        • Chapter 22 Assault;
        • Chapter 25 Offenses Against the Family;
        • Chapter 42 Disorderly Conduct;
        • Chapter 43 Public Indecency;
        • Chapter 46 Weapons Offenses; or
        • Chapter 71 Organized Crime.
    • Five years after the discharge and dismissal if the case is a felony.

Nondisclosure of Straight Probations

In deferred adjudication the court withholds a finding of guilt pending probation, so that a person who successfully completes deferred-adjudication probation is never found guilty. Deferred-adjudication probation has never been available for DWI in Texas, but straight probation always has been. Straight probation is probation after a finding of guilt: the court finds the defendant guilty, then puts the defendant on probation.

Section 411.073 Nondisclosure of Non-Alcohol Misdemeanor Straight Probation

A defendant who satisfies the general requirements of section 411.074 but had a conviction with jail time or straight probation rather than deferred-adjudication probation may still seek discretionary nondisclosure (“in the best interest of justice”) if:

  • The case was not an intoxication case (DUI, DWI, BWI, or the like).
  • The case was not an organized-crime case.
  • The probation was not revoked, but was successfully completed.
  • The defendant has never, other than in this case, been convicted or placed on deferred-adjudication probation.
  • He waits until (this is the waiting period referred to in section 411.074):
    • Immediately after completion of the sentence if it is not an offense under:
      • Chapter 20 Kidnapping, Unlawful Restraint, Smuggling Persons;
      • Chapter 21 Sexual Offenses;
      • Chapter 22 Assault;
      • Chapter 25 Offenses Against the Family;
      • Chapter 42 Disorderly Conduct;
      • Chapter 43 Public Indecency;
      • Chapter 46 Weapons Offenses; or
      • Chapter 71 Organized Crime;
    • Two years after completion of the sentence if it is an offense under:
      • Chapter 20 Kidnapping, Unlawful Restraint, Smuggling Persons;
      • Chapter 21 Sexual Offenses;
      • Chapter 22 Assault;
      • Chapter 25 Offenses Against the Family;
      • Chapter 42 Disorderly Conduct;
      • Chapter 43 Public Indecency;
      • Chapter 46 Weapons Offenses; or
      • Chapter 71 Organized Crime.

Section 411.0731 Nondisclosure of DWI Probation

A defendant who satisfies the general requirements of section 411.074 but had a DWI conviction straight probation may seek discretionary nondisclosure (“in the best interest of justice”) if:

  • Proof of a BAC over 0.15 was not part of the conviction;
  • The defendant has never, other than in this case, been convicted or placed on deferred-adjudication probation.
  • There was no motor-vehicle accident involving another person, including a passenger in the defendant’s car.
  • He waits until (this is the waiting period referred to in section 411.074):
    • Two years after completion of probation if an ignition interlock device was a condition of the probation for at least six months.
    • Five years after completion of probation if an ignition interlock device was not a condition of the probation for at least six months.

Nondisclosure of Jail Sentences

Even defendants who served misdemeanor jail sentences rather than probation may now be eligible for discretionary nondisclosure.

Section 411.0735 Nondisclosure of Non-DWI Misdemeanor Jail Sentences

A defendant who satisfies the general requirements of section 411.074 and is not eligible under section 411.073 may seek discretionary nondisclosure (“in the best interest of justice”) if:

  • He has a misdemeanor conviction.
  • The case was not an intoxication case (DUI, DWI, BWI, or the like).
  • The case was not an organized-crime case.
  • The defendant has never, other than in this case, been convicted or placed on deferred-adjudication probation.
  • The defendant successfully completed his sentence and paid any restitution.
  • Except for a misdemeanor assault under section 22.01 of the Texas Penal Code, the offense was not violent or sexual in nature.
  • He waits until (this is the waiting period referred to in section 411.074):
    • Immediately after completion of the sentence if the offense was a misdemeanor punishable by fine only (class-C).
    • On or after the two-year anniversary of his completion of the sentence otherwise.

Section 411.0736 Nondisclosure of DWI-First Jail Sentences

A defendant who satisfies the general requirements of section 411.074 and is not eligible under section 411.0731 may seek discretionary nondisclosure (“in the best interest of justice”) if:

  • The case was a first DWI.
  • There was no showing of an alcohol concentration over 0.15.
  • The defendant has never, other than in this case, been convicted or placed on deferred-adjudication probation.
  • There was no motor-vehicle accident involving another person, including a passenger in the defendant’s car.
  • He waits until (this is the waiting period referred to in section 411.074):
    • Three years after completion of probation if an ignition interlock device was a condition of the probation for at least six months.
    • Five years after completion of probation if an ignition interlock device was not a condition of the probation for at least six months.

Procedure

Section 411.072 requires the trial court to determine whether a defendant completing his probation is eligible under section 411.074, and if he is, to issue an order of nondisclosure.

All other sections require that the defendant petition the court and that the court give the state notice and an opportunity to be heard on whether nondisclosure is in the best interest of justice.

1 Comment

  1. 1) I have noticed that Texas crim lawyers and fed crimmigration lawyers in Texas use “straight probation” in different ways. You are using “straight” to distinguish deferred adjudication from that-which-follows-a-conviction. But given that the Immigration & Nationality Act treats suspended sentences as prison terms (8 USC s 1101(a)(48)(B)), I learned to describe deferred as “straight” probation to distinguish it from suspended sentences. If I recall correctly, for felonies, deferred and suspended confinement are the only probationary options. At least those are the only ones I notice.

    2) For just about every federal or immigration collateral consequence, we treat a deferred adjudication like a conviction. They count for criminal history points and immigration consequences. I have always thought this is unfair to people whp agreed to take a deferred, and it is only getting worse as more and more information is stored in external/internet databases and employers look deeper. And professional licensing boards / applications for “sensitive” positions think they are entitled to the info anyway. And if you don’t disclose it, it looks like you are hiding something. So even with a non disclosure order, there is a good chance people will be able to figure it out.

    3) one (probable?) exception to the collateral consequences– it sure looks like someone who completes their community supervision and gets case dismissed is not federally prohibited from possessing a gun by 18 USC 922g1. Even so, I have heard prosecutors suggest that this is “unclear” and there is not (yet) a good federal case on point.

Post a Comment

Your email address will not be published. Required fields are marked *