Do you have a criminal charge, arrest, or conviction on your record? Are you unsure if you are able to clear your record? Our team can help. We work with individuals who are looking to clear their record of past wrongdoings so they can move forward in their lives with a clean slate. This article shares information from Texas Law Help about Expunctions vs. Nondisclosures in Texas.
What’s the difference between expunction and nondisclosure?
Both are procedures used to clean up adult criminal history records, which can impact job searches, professional licenses, and credit scores. Laws differ by state.
In Texas, an expunction can permanently remove entries from an adult criminal history record, but it is very limited. Nondisclosure (sealing) hides certain offenses from public disclosure, but they are still visible to criminal justice agencies, licensing agencies, and certain government entities.
Eligibility depends on the type of offense and type of community supervision. Texas has two types of community supervision: deferred adjudication and regular community supervision (probation). Offenses ending in conviction or regular community supervision are never eligible for expunction but may be eligible for nondisclosure.
Will a deferred adjudication stay on my record?
At the end of deferred adjudication, the court will dismiss the charges without a conviction. However, the offense and sentence of deferred adjudication stays on your record and can show up in public and private background searches.
In Texas, expunction applies to:
- Class C misdemeanors resulting in deferred adjudication or
- Offenses not resulting in conviction regardless of level, where charges were not filed, charges were dismissed, or the person was acquitted or pardoned.
Even if there were no charges, there is a minimum waiting period before filing an application for expunction:
- Class C misdemeanors: 180 days
- Class A and B misdemeanors: 1 year
- Felonies: 3 years
If charges were brought, the statute of limitations must expire for every crime for which you were arrested (not just those you were charged with).
How do I file for expunction?
File the Application for Expunction in the arresting county, along with a fingerprint card from the Department of Public Safety. The clerk will notify DPS and set a court hearing no earlier than 30 days from the date of filing.
Effect of Expunction: An Order of Expunction removes the entry from your criminal record. You are not required to mention it on job applications or anywhere else.
How do I file for nondisclosure?
There are two methods of nondisclosure in Texas:
- Automatic nondisclosure for first-time misdemeanors: Automatic nondisclosure applies only to 1) first-time misdemeanors (other than traffic fines), 2) dismissed and discharged after August 31, 2017. If you meet all legal requirements, the judge must order nondisclosure once six months have passed after the date you were placed on deferred adjudication. You should not have to file anything.
In practice, though, you often have to remind the court to take this step. If you are eligible to automatically seal your record, you can use these instructions for filing under 411.072 to ask the court to do so.
- Nondisclosure with petition: A petition is required for all eligible offenses that don’t qualify for an automatic order. See How to Ask for a Nondisclosure Order for forms and instructions.
What is the effect of nondisclosure?
A nondisclosure order means that government agencies may not give information about your offense to unauthorized entities. Also, you are not required to disclose the offense information on job applications or anywhere else. However, the offense stays on your record and is visible to law enforcement and other government entities.
Why might I not be able to expunge or seal my record?
Expunction: You cannot expunge any conviction. You can only expunge deferred adjudication for Class C misdemeanors. Class C misdemeanors are the lowest level of non-traffic offenses and never result in jail time.
Non Disclosure Orders: You are not eligible for a nondisclosure order if you have ever been convicted or placed on deferred adjudication for any of the following:
- An offense requiring registration as a sex offender under Chapter 62, Code of Criminal Procedure
- An offense under Texas Penal Code Section 20.04 (aggravated kidnapping)
- An offense under any of the following Texas Penal Code Sections:
- 19.02 (murder)
- 19.03 (capital murder)
- 20A.02 (trafficking of persons)
- 20A.03 (continuous trafficking of persons)
- 22.04 (injury to a child, elderly individual, or disabled individual)
- 22.041 (abandoning or endangering a child)
- 25.07 (violation of court orders or conditions of bond in a family violence, sexual assault or abuse, stalking, or trafficking case)
- 25.072 (repeated violation of certain court orders or conditions of bond in family violence, sexual assault or abuse, stalking, or trafficking case)
- 42.072 (stalking)
- Any other offense involving family violence, as defined by Section 71.004, Family Code
Remember that these restrictions apply to your entire criminal history, including the offense you want to seal. You are never eligible to receive an order of nondisclosure for any offense if you have ever been convicted of or put on deferred adjudication for one of the above crimes.
How long do I have to wait to expunge or seal my record?
The waiting period starts when you complete your sentence or your deferred adjudication.
If there was an arrest that did not result in charges:
- Class C misdemeanor: 180 days
- Class A and B misdemeanors: 1 year
- All felonies: 3 years
However, you may want to wait until the statute of limitations has expired for the offense. Otherwise, the prosecutor has the option to keep your records on file.
If charges were brought against you, the statute of limitation must have expired on all offenses arising from your arrest, unless you successfully completed a pretrial diversion program. Note that the statue of limitations is paused from the time you are charges until your case is resolved.
The waiting period depends on the offense you want to seal.
- For most misdemeanors, you are eligible immediately or soon after you complete your sentence or deferred adjudication.
- You must wait two years for Chapter 20, 21, 22, 25, 42, 43, and 46 misdemeanors.
- You must wait five years for felonies.
- You must wait two to five years for DWIs, depending on whether it is a felony DWI and whether you had put a breathalyzer in your car.
Experience Criminal Attorney in Houston, TX
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After filling out a client intake form, Attorney Lanease D. Fuller will take appropriate action in your case to help you get the results you are looking for. This includes but not limited to gathering evidence, going to trial, and earning a settlement that is appropriate for your specific situation. Reach out to us today to take the first step towards settling your case.
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