What is the Difference Between an Expunction and Order of Non-Disclosure?

expunction order of non-disclosure expungement

Posted on: November 3, 2014

 The only way to be sure if you are eligible for an expunction (expungement) or order for non-disclosure or not is to contact an attorney for a consultation.  You can contact our office at 512-457-5200.

 

What is an Expunction (Expungement)?

An expunction completely eliminates a charge from your "formal" criminal history.  I use the caveat "formal" here due to the fact that because the internet is inundated with criminal background check websites, even after a successful expunction, it may be possible to find your criminal history on a web site that is not part of the formal criminal justice system.  

When Am I Eligible for an Expunction (Expungement)?

A record expunction (expungement) in Texas is only available for certain types of individuals. Typically, this legal remedy is available only to following people: 

1.  People who are acquitted at trial by jury or judge.  In this case, the expunction is available immediately. 

2.   People who were arrested, but the case was never filed.  In the case of a Class C misdemeanor, at least 180 days has to pass between the time of the arrest and the failure of the state to file a case before you are eligible for an expunction.  In the case of a Class B or A misdemeanor, one year must pass between the date of arrest and the state's failure to file.  In the case of a felony, at least three years must pass from the date of the arrest of the state's failure to file.  
 
3.  People who are convicted but subsequently pardoned are eligible for an expunction
 
4.  If the case was dismissed completely, as compared to reduced or re-filed, or the person was otherwise released from the charges, and the statute of limitations has ran, the person is eligible for an expunction.  (In the case of a misdemeanor, two years must pass.  With most felonies, four years must pass.)
 
5.  People who are placed on a deferred disposition for a Class C misdemeanor and successfully complete the deferral period are eligible for an expunction.  
 
There are a variety of other ways to obtain an expunction. As mentioned above, the only way to be sure if you are eligible for an expunction or not is to contact an attorney for a consultation.  You can contact our office at 512-457-5200.

What is an Order of Non-Disclosure?

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.

Convictions

If you have plead guilty and your case has resulted in a final judgment, meaning you were placed on regular probation or sentenced to jail, you are not eligible for an expunction/expungement or an order for non-disclosure.

What if My Case Was Dismissed After I Successfully Completed Deferred Adjudication Probation?

If you have successfully completed deferred adjudication probation, you are generally eligible for an order of non-disclosure after the appropriate waiting period has passed.  In the case of felonies, you must wait 5 years from the date of discharge and dismissal (completion of probation) to file a petition for non-disclosure.  That being said, you are not eligible for an order of non-disclosure if you were placed on deferred adjudication for one of the following offenses:

  • 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 

Is There a Waiting Period for Misdemeanors?

In most cases, the answer is no.  This means upon successful discharge and dismissal, you can file a petition for non-disclosure on most misdemeanors.  The exceptions to the rule, which require a two year waiting period after successful completion of deferred adjudication community supervision, are as follows:

  • 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

 

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