Criminal Records

Non-Disclosure FAQs

Criminal Defense Attorney Austin

Caveat

These answers are provided as a public service and represent Jason Trumpler's good faith understanding of the Texas non-disclosure statute.  Criminal Defense Attorney Jason Trumpler is not attempting to give Austin residents legal analysis in this content. Answers are not intended to substitute for legal analysis in your specific case.  The Law Offices of Jason Trumpler strongly urge anyone pursuing a petition for non-disclosure to consult with an attorney of his or her own choice. Contact our offices to further discuss the specifics of your case.


Q.  Are deferred adjudication records public?
A.   Yes.  Although there is a common misconception that deferred adjudication records are removed from a defendant's criminal history upon successful conclusion of the community supervision (probation) period, the law does not provide for automatic expunction of deferred adjudication records.

Accordingly, unless there is a court order directing otherwise, records of a prosecution resulting in a deferred adjudication are publicly available in the District or County Clerk's records.

Q. Can deferred adjudication records be made non-public by request?
A.  Yes, in some instances.  There are two ways that deferred adjudication community supervision records can be made non-public:

(1) Class C deferred adjudications -- By filing an expunction under Article 45.051(e), Code of Criminal Procedure (if the Class C deferred adjudication was imposed in justice court or municipal court); or by filing an expunction under Article 55.01(a)(2), Code of Criminal Procedure (if the Class C deferred adjudication was imposed in county or district court). Expunction is not available for deferred adjudication sentences for Class B, Class A, or felony offenses.

(2) Petition for nondisclosure – Under Section 411.081(d), Government Code, a court can prohibit criminal justice agencies from disclosing to the public criminal history record information related to certain offenses for which the offender was placed on deferred adjudication.  There are many offenses, however, for which this procedure is unavailable.  Moreover, a defendant may be disqualified if he commits an offense after the deferred adjudication has been completed and before filing the petition.

Q. Which defendants are ineligible to seek an order of nondisclosure?
A. Under Section 411.081(e)(1)-(4), Government Code, anyone who has ever committed any of the following offenses (including as the offense for which the defendant got deferred adjudication) is not entitled to seek an order of nondisclosure.
  • Indecency with a child
  • Sexual assault
  • Aggravated sexual assault
  • Prohibited sexual conduct (incest)
  • Aggravated kidnapping 
  • Burglary of a habitation with intent to commit any of the above offenses
  • Compelling prostitution
  • Sexual performance by a child
  • Possession or promotion of child pornography
  • Unlawful restraint, kidnapping, or aggravated kidnapping of a person younger than 17 years of age
  • Attempt, conspiracy, or solicitation to commit any of the above offenses
  • Capital murder
  • Murder
  • Injury to a child, elderly individual, or disabled individual
  • Abandoning or endangering a child
  • Violation of protective order or magistrate's order
  • Stalking
  • Any other offense involving family violence 
Q. Which defendants are disqualified from seeking an order of nondisclosure?
A. Any defendant who, after the date of discharge and dismissal, has been convicted or placed on deferred adjudication for any offense other than a traffic offense punishable by fine only.  See Section 411.081(e), Government Code.

Q. When is an otherwise eligible defendant allowed to seek an order of nondisclosure?
A. Under Section 411.081(d), the defendant has to wait a certain period of time after the date of discharge and dismissal before filing a petition for an order of nondisclosure.  The operative date is not the date that the defendant entered his plea:  it is the date that the deferred adjudication was concluded.  
                                               
Kind of offense 
All felonies
The following misdemeanors:  
Waiting Period
 5 years from date of discharge and dismissal.
 2 years from date of discharge and dismissal. 

  • Abuse of corpse
  • Advertising for placement of child
  • Aiding suicide
  • Assault
  • Bigamy
  • Cruelty to animals
  • Deadly conduct
  • Destruction of flag
  • Discharge of firearm
  • Disorderly conduct
  • Disrupting meeting or procession
  • Dog fighting
  • False alarm or report
  • Harassment
  • Harboring runaway child
  • Hoax bombs
  • Indecent exposure
  • Interference with emergency telephone call
  • Leaving a child in a vehicle
  • Making a firearm accessible to a child.
  • Obstructing highway or other passageway
  • Possession, manufacture, transport, repair or 
  • Sale of switchblade knife or knuckles
  • Public lewdness
  • Riot
  • Silent or abusive calls to 9-1-1 service
  • Terroristic threat
  • Unlawful carrying of handgun by license holder
  • Unlawful carrying weapons
  • Unlawful possession of firearm
  • Unlawful restraint
  • Unlawful transfer of certain weapons
  • Violation of protective order preventing offense 
  • caused by bias or prejudice
All other misdemeanors:                                   
May file immediately upon discharge and dismissal. 
In all of these petitions, you will need the following information:
                        
*  The original court and cause number in which the deferred adjudication was imposed.
*  The date of the original plea of guilty or no contest.
*  The offense for which the defendant was placed on deferred adjudication.
*  The date upon which the court dismissed the proceedings and discharged the defendant from deferred adjudication community supervision. 
            
This information is generally available from the District Clerk's or County Clerk's Office.

NOTE: If filing a non-disclosure for a felony case, you need to obtain a hearing date from the court coordinator where your initial case was originally heard.  Then, you will need to file your petition with the District Clerk's office.

Q. What needs to be proven at the hearing?
A. A defendant needs to be prepared to provide evidence of the following elements:

  • The defendant entered a plea of no contest or guilty to the offense
  • The Court placed the defendant on deferred adjudication community supervision.
  • The Court dismissed the proceedings in this case and discharged the defendant from deferred adjudication community supervision.
  • The defendant is not disqualified from filing a petition under Section 411.081(e).
  • The petition was timely filed under Section 411.081(d).
  • Issuance of the order is in the best interest of justice.

Q. What is the effect of the order of nondisclosure?
A. The court's order will be sent to the Department of Public Safety.  The Department of Public Safety will then sends the order to all law enforcement agencies, jails or other detention facilities, magistrates, courts, prosecuting attorneys, correctional facilities, central state depositories of criminal records, and other officials or agencies or other entities of this state or of any political subdivision of this state, and to all central federal depositories of criminal records that there is reason to believe have criminal history record information that is the subject of the order.  Those entities are obliged not to disclose the deferred adjudication record information to anyone other than

  • Other criminal justice agencies
  • For criminal justice or regulatory licensing purposes
  • An agency or entity listed in Section 411.081(i) 
  • The person who is the subject of the order.

Contact Jason Trumpler today to learn more about your rights regarding criminal records.

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