Texas Code of Criminal Procedure Chapter 55 sets forth the law for expunctions for felony charges and for charges of the commission of Class A and B misdemeanors, and Class C misdemeanors where deferred adjudication was received. If you’ve ever been arrested or charged with a crime, you have a criminal history record. This is true even if no case was filed against you after your arrest, or if the case against you was dismissed. Your criminal record follows you when you are applying for jobs, when trying to obtain housing, or when applying for school or for school loans. Even without a conviction, you can be denied employment, housing or admission to schools. In order to completely clear your record in Texas, you need to file a petition to have your record expunged.
Expunction is a legal process that can wipe someone’s criminal record clean. You might qualify to have your records expunged and your record cleared if one of the following conditions has occurred:
- You were acquitted of a crime after a trial.
- You were acquitted of a crime by an appeals court.
- A case against you was filed, but was subsequently dismissed.
- You were arrested, but a grand jury no billed the indictment against you.
- You were arrested, but no case was filed against you.
Generally, if you were convicted or received deferred adjudication for a crime, you will not qualify for an expunction in Texas, with the exceptions described below for some Class C misdemeanors:
- Article 45.0541 of the Texas Code of Criminal Procedure provides for the expunction of failure to attend school and truancy records regardless of whether there was a conviction.
- Article 45.0216 of the Texas Code of Criminal Procedure provides for the expunction of a conviction of an offense committed by a juvenile if the juvenile was convicted not more than once of an offense punishable by fine only or a violation of a penal ordinance of a political subdivision, or if a juvenile was convicted only one time of a violation of the offense described in Texas Penal Code Section 43.261, which involves the electronic transfer of sexually explicit materials involving a minor. (This section applied to Justice Municipal Courts and not Family Juvenile District Courts).
- Texas Code of Criminal Procedure Section 55.01(a)(2)(A) provides for expunctions for individuals who received deferred adjudication for Class C misdemeanor.
- Alcoholic Beverage Code Section 106.12 provides that a person who obtained not more than one conviction under the code of more than one offense can have the offense expunged upon turning 21 years of age.
- A person convicted of a tobacco offense under Texas Health and Safety Code Section 161.252 (applies to acts committed under the age of 18) is entitled to an expunction of a conviction under Texas Health and Safety Code Section 161.255 upon completion of the requirements set out in Section 161.255.
Orders of Nondisclosure
Under Texas law, successful completion of deferred adjudication is not considered the same as acquittal or a dismissal without a plea. Thus, if you were placed on deferred adjudication for any offense other than a Class C misdemeanor you are not eligible for expunction of your records. However, another option might be available to you. If you successfully completed deferred adjudication probation you might be eligible for an order of nondisclosure after filing a petition for nondisclosure. If the offense to which a person pled was committed on or after September 1, 2015, some persons are even eligible for orders of nondisclosure in cases where they were convicted of a misdemeanor and did straight probation or jail time.
A petition for nondisclosure is a petition filed with the criminal court that handled your case requesting that it seal any records pertaining to the case. While in an expunction case records are completely removed from public agency files, in a case where an order for nondisclosure has been granted government agencies retain the information. However, the agencies are not permitted to disclose the information to the general public, including to private businesses.
There are differences in the law regarding qualification for orders of nondisclosure, depending on whether the offense was committed before September 1, 2015, or on or after September 1, 2015
Nondisclosure where offense committed on or after September 1, 2015
There are five categories of orders of nondisclosure for offenses committed on or after September 1, 2015.
To be eligible for any of the five, a person cannot have been convicted or placed on deferred adjudication for an offense subsequent to the one for which nondisclosure is sought.
Also, a person is not eligible for an order of nondisclosure under these sections if she or he was convicted or placed on deferred adjudication for offenses including those requiring registration as a sex offender, murder, capital murder, aggravated kidnapping, trafficking or continuous trafficking of persons, injury to a child, elderly or disabled person, abandoning or endangering a child, violations or repeated violations of bond in a family violence case, stalking, or any offense involving family violence or with an affirmative finding of family violence.
CATEGORY 1: Texas Government Code Section 411.072
A person who has successfully completed deferred adjudication for a misdemeanor and whose case was dismissed,
AND WHOSE CASE WAS NOT kidnapping or and unlawful restraint, indecent exposure, unlawful photography, assault, deadly conduct, terroristic threat, bigamy, enticing a child criminal nonsupport, violation of a protective order, disorderly conduct, harassment, animal cruelty, prostitution, sexting, unlawful carrying of a weapon, having prohibited weapons, or engaging in organized criminal activity
WHO WAS NOT previously convicted or placed on deferred adjudication for a crime other than a fine only traffic offense
AND WHOSE COURT did not affirmatively find at the time of the plea that the case should not be subject to “automatic” nondisclosure
Is immediately eligible for an order of nondisclosure upon filing the petition and paying the filing fee, provided that at least 180 days have passed since the person was placed on deferred.
CATEGORY 2: Texas Government Code Section 411.0725
A person placed on deferred adjudication for a felony or misdemeanor not eligible for automatic nondisclosure such as in Category 1, and whose offense is not one of the ones previously discussed for which there is a bar to nondisclosure, and who has not had a subsequent offense, can petition the Court for an order of nondisclosure. There is a two year waiting period from discharge from probation and dismissal of the case for misdemeanors under this section before one can apply for an order of nondisclosure, and a five year waiting period for felonies. The Court has to find that the issuance of an order of nondisclosure is in the best interest of justice under this section to grant a petition for an order.
CATEGORY 3: Texas Government Code Section 411.073
A person CONVICTED of a misdemeanor other than the offenses for which there is an automatic bar to any order of nondisclosure, and additionally not convicted of the misdemeanors of selling alcohol to a minor, intoxication related offenses, or engaging in organized criminal activity, who has successfully completed community supervision and who has not had a subsequent offense, can petition a court for an order of nondisclosure.
There is a two year waiting period from the date of discharge from community supervision for misdemeanor convictions falling under Texas Penal Code Sections 22, 21, 22, 25, 42, 43 or 46, and no waiting period for other eligible convictions. To grant the order of nondisclosure, the Court must find that it is in the best interest of justice.
Note that this section affords some possible relief to minor drug offenders, who are charged under the Texas Health and Safety Code and not the Texas Penal Code.
CATEGORY 4: Texas Government Code Section 411.0735
If you were jailed after a conviction for certain misdemeanors and did not receive community supervision, you might still be able to obtain an order of nondisclosure. Other than the convictions listed above which are a bar to all orders of nondisclosure, intoxication related offenses, possession of or selling alcohol to minors, if you were not previously or subsequently convicted or placed on deferred for any offense other than a fine only traffic offense, and at least two years have passed from the date or your successful release from confinement, you can petition the court for an order of nondisclosure, which the court will grant if it finds it is in the best interest of justice to do so.
CATEGORY 5: Texas Government Code Section 411.0728
If you were convicted of prostitution, and your conviction was subsequently set aside under Texas Code of Criminal Procedure Article 42.12 and were found to have committed the offense solely as a victim of human trafficking, then you can petition the court for an order of nondisclosure, which will be granted if the court finds it is in the best interests of justice to do so.
Nondisclosure where offense committed before September 1, 2015
If a person successfully completed deferred adjudication and received a discharge and dismissal for an offense committed before September 1, 2015, that person might be eligible for an order of nondisclosure if that person was not charged with offenses including those requiring registration as a sex offender, murder, capital murder, aggravated kidnapping, injury to a child, elderly or disabled person, abandoning or endangering a child, violations or repeated violations of bond in a family violence case, stalking, or any offense involving family violence.
There is a five year waiting period for felonies and a two year waiting period for misdemeanors charged under Texas Penal Code Sections 20,21, 22, 25, 42. And 46. For all other eligible misdemeanors, such as drug offenses charged under the Texas Health and Safety Code, there is no waiting period.
A person applying for an offense committed before September 1, 2015 must not have been convicted or placed on deferred adjudication for any offense other than a fine only traffic violation during the period of deferred or any applicable waiting period.
AN ORDER OF NONDISCLOSURE CAN BE VERY ADVANTAGEOUS TO SOMEONE SEEKING EMPLOYMENT. The Texas Government Code states that a person whose criminal history record information has been sealed through an order of nondisclosure “is not required in any application for employment, information, or licensing to state that the person has been the subject of any criminal proceeding related to the information that is the subject of an order issued under this section.”
If you believe that you might benefit from an order of expunction or nondisclosure, contact our offices for more information.