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Clear Or Seal Your Record: Expunction Vs. Orders Of Nondisclosure

Posted by Jason English | Jun 16, 2022

Can you clear or seal your record?

In Texas and many other states, a criminal conviction does not necessarily mean a permanent criminal record. While a conviction will remain on a criminal record indefinitely, there are some situations in which the record of the conviction may be expunged or sealed. In Texas, final convictions may not be expunged, but they may be sealed through an order of nondisclosure, depending on the circumstances of their case. However, only those who have been acquitted or had their case dismissed qualify for expunction in Texas. If you have questions about expunction vs. orders of nondisclosure, the experienced Texas criminal defense lawyers at Jason English Law have answers. Contact our legal team today at (512) 454-7548 to learn more about clearing a criminal record.

Expunction Requirements in Texas

Texas Code of Criminal Procedure, Chapter 55 allows qualifying applicants to submit an expunction petition, which is a request to legally remove the record of an offense from the applicant's criminal history. If granted, the expunction will require state agencies and private companies to remove the record of the arrest from their electronic records and destroy any physical records of the arrest.

In general, an expunction will only be approved for Class C misdemeanors that resulted in deferred adjudication or higher offenses if the charge was dismissed or the applicant was acquitted at trial. Some common situations in which an expunction is an option include:

  • Charges dismissed through deferred adjudication or deferred disposition
  • Dismissed charges for other reasons, such as insufficient evidence
  • No formal charges were ever filed
  • The applicant has completed a pre-trial diversion program
  • A pardon was granted for the offense
  • The court of appeals issued an acquittal

Acquittals are eligible to be expunged immediately, while other applicants will need to wait about one year to expunge a misdemeanor and three years for a felony.

Eligibility For Order of Nondisclosure

Texas may have more hurdles when applying for expunction compared to other states, but many individuals who do not qualify for expunction can still have the record of their conviction sealed by filing an order of nondisclosure. Unlike expunction, sealing the record does not destroy it. Rather, it significantly restricts access to these records. For example, potential new employers will not be able to access the record during background checks.

According to Texas Government Code, Chapter 411, Subchapter E-1, an order of nondisclosure may be an option if any of the following conditions apply:

  • The applicant completed deferred adjudication probation,
  • The applicant was discharged early from deferred adjudication probation
  • The applicant was convicted of certain first-time misdemeanor offenses, such as DWI

If you are unsure of whether you qualify for expunction vs. order of nondisclosure, you can learn more by discussing your case with the experienced Austin, Texas criminal defense lawyers at Jason English Law.

Ineligible Offenses

Certain types of offenses are not eligible for an order of nondisclosure, even if the individual completed deferred adjudication or received an early discharge:

  • Second and subsequent DWIs
  • Offenses that require registering as a sex offender
  • Injury to a child
  • Abandoning a child
  • Family violence
  • Aggravated kidnapping
  • Violation of a protective order
  • Stalking
  • Murder

How Can You Seal a Record in Texas?

Once you have determined that you qualify for an order of nondisclosure, there are three main steps in the application process.

 

Gather All Relevant Info

Applicants must gather and submit all information relevant to the criminal charge that they are requesting to be sealed. This includes:

  • The original case number and arrest date
  • The law enforcement agency that made the arrest
  • The applicant's social security and birthdate
  • A copy of the judgment
  • A signed order or judgment indicating one of the following:
    • A judge reduced the applicant's deferred adjudication period or granted an early termination
    • The applicant completed deferred adjudication or probation
    • A judge dismissed the case and discharged the applicant
    • The judge set aside the verdict and allowed the applicant to withdraw their plea before dismissing the case
  • A signed order or judgment summarizing any relevant findings by the judge, including findings that suggest it is not in the best interest of justice to approve the petition.

Draft and File the Petition

After all relevant information has been compiled, it is time to draft and file the petition for nondisclosure and the order of non-disclosure that requests the sealing of the criminal record. Both of these documents should contain information on the applicant's identity, original case and arrest records, and a list of all agencies and entities that have a copy of the original arrest records.

An experienced criminal defense attorney can help identify all entities that should be contacted with the non-disclosure order. While this may vary slightly from case to case, most orders should at least notify the arresting agency, the facility where the applicant was booked, the Texas Department of Public Safety, and the original court where the case was filed.

Non-Disclosure Hearing

A future hearing date will be scheduled either at the time of filing or shortly after. The Clerk's Office notifies the defendant or their attorney of the date and the court where it will take place. This hearing can only take place at least 30 days after the filing date, but most hearings are scheduled within 45 days.

Depending on the case status, the applicant's attorney may be able to attend this hearing on their behalf, without the applicant needing to attend. During this hearing, the attorney can present their evidence and testimony as to why the charge should be sealed. The judge will then make a ruling. If approved, all of the entities listed in the petition will be issued an order of nondisclosure.

The Expunction Process in Texas

The process of filing for expunction is very similar to the order of nondisclosure process. Qualifying applicants will need to submit a petition and relevant documentation to the district court in the county in which they were charged.

There are different required waiting periods depending on the nature of the offense:

  • 180 days for Class C misdemeanors
  • 1 year for Class A or B misdemeanors
  • 3 to 5 years for felonies

Contact the Experienced Criminal Defense Lawyers at Jason English Law Today

Having a criminal record can cause serious life disruptions but clearing your record can help you get your life back on track. Veteran Texas criminal defense lawyer Jason English is prepared to help you understand your legal rights and ensure they remain protected. Contact Jason English Law today at (512) 454-7548 with questions related to expunctions vs. orders of nondisclosure and clearing your criminal record.

About the Author

Jason English

Jason English grew up in his dads personal injury law practice in Tarrant County, graduated from Texas Aamp;M before getting his law degree from St. Marys University School of Law. Initially he worked in his fathers firm on personal injury, wills and probate, as well as, family law cases. Soo...

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