Apr 11, 2012

Houston Criminal Attorney: Expunctions and Petitions for Non-Disclosure in Texas

Every day American citizens are wrongfully arrested due to mistakes ranging from simple clerical errors to over-reaction by law enforcement officers: often it is merely a case of someone being in "the wrong place at the wrong time". In other situations a person may have been arrested with probable cause only to be found not guilty, or have their charges dropped or dismissed after counseling. Most people mistakenly believe that their arrest record is erased in such instances.
However this is simply not the case: all of these events are placed on your criminal record and are made public, and even a minor offense like public intoxication or disorderly conduct can be viewed by potential employers, landlords or business concerns. In addition, nearly 2 million people in Texas have accepted Deferred Adjudication probation for misdemeanors and felony arrests with the misconception that once the probation period was over and the charge "dismissed" that it would not be on their records.

Expunctions were created as a means of allowing a person who was wrongfully arrested or accused of a crime to remove all traces of that arrest from the state's records. With a few exceptions many criminal cases that have been dismissed, rejected or declined for prosecution are eligible for expunction. Additionally, completed pre-trial diversions, "not guilty" verdicts and Class "C" misdemeanor deferred dispositions are also eligible. A Petition for Expunction is filed in District Court, and the process is actually a civil lawsuit requesting that the Court issue an order forcing specific agencies to delete, erase, or destroy their records for an individual's criminal record or specific criminal offense. If an expungement is successful an individual may legally deny being arrested in that specific case.

Not everyone has the right to have their record expunged: there are limitations on what types of charges can be removed, and each case must be reviewed to determine the qualification of the specific individual. For example, if you have actually been convicted of a crime it cannot be expunged. You cannot have plead guilty to any other charges arising out of the same criminal offense, and deferred adjudication cases cannot be expunged. You cannot petition for expunction in a case where you intentionally or knowingly absconded (“jumped bail”) after being released on bond. And people arrested for community supervision or parole violations are not eligible for an expunction.

Recent Changes to Texas State Expunction Laws:
 In 2011 the Texas State Legislature amended Chapter 55 of the Texas Code of Criminal Procedure, which governs the expunction of arrest records, court records and criminal history record information. One change is a new eligibility for persons granted relief on the basis of actual innocence: previously, a person who had been convicted but later pardoned could have their record expunged but a person who was convicted and later found to be innocent through normal legal channels could not. Another change allows the prosecutor to agree to an expunction. Prior to this amendment any agency listed in the petition (such as the Texas Department of Public Safety) could oppose it: in cases where it is obvious no charges should have been filed in the first place this removes unnecessary barriers and the Legislature agreed that the individual should not be forced to wait. One other important change removed the restrictions that prohibited an individual from receiving an expunction if they had been convicted of a felony in the five years before the arrest.

 The new law also changed the waiting periods required for obtaining an expunction of records in Texas. Previously the courts have required individuals to wait until the statute of limitations expires before applying for an expunction, which meant that in cases where there is no statute of limitation (such as murder) you could never have your record cleared even if you were absolved of the crime. There are also charges with lengthy statutes of limitation, such as sexual assaults. The legislature has now defined specific waiting periods:

  •  180 days for a Class C misdemeanor, 1 year for Class A & B misdemeanors and 3 years for felonies 
  •  Any time after arrest if the attorney for the State certifies that the files are not needed for any subsequent criminal prosecution, or 
  •  if the limitations period has actually expired. 

The burden of course is on the applicant to prove that they were released and that charges are no longer pending. For cases that are formally filed by an indictment but are later dismissed the person must still wait until the statute of limitations expires to petition for expunction.

Deferred Adjudication and Petitions for Non-Disclosure 
A Petition for Non-Disclosure is a specific document relating only to cases involving deferred adjudication probation, which is not covered under the regular expunction laws.
Deferred adjudication is a special type of probation given to many first-time offenders in Texas. A defendant will enter a guilty plea, but the judge does not actually find the defendant guilty and instead "defers" the finding of guilt. Unlike regular or “straight,” probation which may allow people to avoid incarceration or other punishments after being convicted of a crime, deferred adjudication permits that if the person satisfactorily completes the probation period and any other requirements the charges are “dismissed” and the person does not receive a final conviction. However, if the person violates the terms of his or her deferred probation, the state can file a motion to adjudicate and the judge can sentence the person to any term within the statutory range.

It is important to note that while the person who successfully completes deferred adjudication does not have a final conviction, a record of the offense will still appear on their criminal history. In this case a non-disclosure order is required to seal their record from public view. Unlike expunctions, non-disclosures do not completely erase criminal records but instead remove them from the public domain while leaving them intact for government purposes. This particular feature is most commonly used in case the person is ever prosecuted for a crime sometime in the future. In Texas, motions for non-disclosure are granted pursuant to Section 411.091 of the Texas Government Code.

 To become eligible for Non-Disclosure, you must successfully complete your deferred adjudication probation. In a felony case you must wait five (5) years from the date of the discharge before a petition for non-disclosure can be filed. Misdemeanors including assault, deadly conduct, disorderly conduct, and unlawfully carrying a weapon may require you to wait two (2) years after the date of discharge before seeking a petition for non-disclosure, but for most misdemeanors you may file immediately after completing the probation. If the two or five year waiting period applies to your case, you must not be convicted or put on deferred adjudication for another offense during that period.

 Finally, you cannot have ever been convicted of or placed on deferred adjudication for certain offenses, including any crime that requires registration as a sex offender, aggravated kidnapping, murder, injury to a child, stalking, and/or any offense that involves family violence.

If you are granted non-disclosure, criminal justice agencies will not be allowed to disclose information about the offense and you may legally deny that you were ever arrested in the case (unless you face a future criminal prosecution). The law still allows for certain government agencies to obtain information about your offense, such as the Texas Department of Licensing and Regulation, the Texas Department of Health and the TABC.

Non-disclosure orders do not apply in a few other limited instances: i.e., if you apply for a teaching position the school may get information about your arrest, or if you apply to be a nurse or a lawyer the Boards that regulate those professions in Texas may access them. If you want to adopt a child a non-disclosure order will not apply.

 If you are ineligible for both expunction and non-disclosure there are two final ways to try to clear your record: first, you can file a writ of Habeas Corpus. Lastly you can try to win a pardon from the governor or president, although pardons are rare and difficult to achieve.

Parnham & McWilliams can help answer any and all questions you might have regarding whether something is showing up on a background check that should not be. If you are concerned that your arrest is still appearing and you would like to start the process of clearing your records, call us immediately for a free consultation at (713) 224-3967 or visit www.parnhamandmcwilliams.com for our convenient online submission form.
We can take care of all of the necessary legal details and work to help you clear your criminal record, so you can move forward with your life without worry and fear that something shows up when it should not.