Expunctions & Nondisclosures - Effect & Eligibility

Expunctions:

Expunctions are the true destruction of a criminal record. An expunged record no longer exists in law enforcement or government databases. A person whose record has been expunged may legally deny that the incident or arrest occured. Cases that are eligible for expunction include:

1) Your case was dimsissed.

2) You were acquitted at trial.

3) You successfully completed a pre-trial diversion prgram.

4) You were arrested but never charged with a crime and the waiting period or statute of limitations has expired.

5) You completed deferred disposition to a Class C Misdemeanor.

Nondisclosures (aka "sealing your record"):

Nondisclosures are more complicated. Nondisclosures result in your record being sealed from access by the general public, although law enforcement and most government agencies can still see it. It can be particularly helpful with respect to background check by a private employer. The eligibility requirements are also more complicated; cases eligible for Nondisclosure include:

DWI Nondisclosure *New in 2017:

Clients who successfully completed DWI Probation [§411.0731]. After a 2-year waiting period, a person with a DWI conviction who has successfully completed probation if:

  • No previous conviction or placed on deferred adjudication for any o ense other than a tra c o ense punishable by ne only;
  • No conviction under 49.04(d) [BAC over 0.15 enhancement]
  • After notice and an opportunity for a hearing, a determination is made that the order of nondisclosure is in the best interest of justice;
  • No accident involving personal injury to another person;
  • Successfully completed 6 months of IID as part of their bond or community supervision; and
  • Is not convicted, placed on probation, or placed on deferred adjudication during the waiting period for any o ense other than a tra c o ense. If the client did not have an IID installed, the waiting period is 5 years.
Clients who received a jail sentence or did not successfully complete probation [§411.0736].  If the person was not placed on probation-or their probation was revoked or unsuccessfully discharged-they are still eligible for nondisclosure if they complete requirements listed above and wait 3 years. If the client did not have an IID installed, the waiting period is 5 years. Over 0.15 BAC is not a prohibition-only a conviction under 49.04(d).

All Other Nondisclosures

Base Requirements for All Nondisclosures

  • Petitioner was not convicted or placed on deferred for any offense (other than a fine-only traffic violation) at any time after sentence pronounced and during any applicable waiting period
  • Never convicted or received deferred (including for offense seeking nondisclosure) for:
    • Any offense requiring registration as a sex offender under CCP Ch. 62
    • Penal Code § 19.02 (murder), 19.03 (capital murder), 20.04 (aggravated kidnapping), 20A.02 (trafficking of persons), 20A.03 (continuous trafficking of persons), 22.04 (injury to a child, elderly, or disabled), 22.041 (abandoning or endangering a child), 25.07 (violations of bond in family violence cases), 25.072 (repeated violations of bond in family violence cases), 42.072 (stalking), or
    • Any offense involving family violence or with affirmative finding of family violence

AND Petitioner must fit in one of the following five categories:

1. Deferred for Certain Misdemeanors (§ 411.072 - "automatic nondisclosures")

Placed on deferred for a misdemeanor other than

  • ·Misdemeanor under Penal Code Ch. 20 (kidnapping & unlawful restraint), 21 (indecent exposure & unlawful photography), 22 (assault, deadly conduct, terroristic threat), 25 (bigamy, enticing a child, criminal nonsupport, violation of protective order), 42 (disorderly conduct, harassment, animal cruelty), 43 (prostitution, sexting), 46 (unlawful carrying of a weapon, prohibited weapons), or 71 (engaging in organized criminal activity)
  • Did not receive affirmative finding under Art. 42.12, §5(k) (not eligible for automatic nondisclosure)
  • Was not previously convicted of or placed or deferred adjudication for any offense other than a fine-only traffic violation
  • Received discharge & dismissal of deferred
  • Is at least 180 days after placed on deferred

or

2. Deferred for Felonies & All Other Misdemeanors (§ 411.0725)

  • �Placed on deferred for any felony or any misdemeanor not included in automatic nondisclosures
  • Received discharge & dismissal of deferred
  • Issuance is in the best interest of justice
  • Waiting period has passed (from issuance of discharge & dismissal):
    • 5 years for all felonies
    • 2 years for misdemeanors under Penal Code Ch. 20, 21, 22, 25, 42, 43, & 46
    • Immediately for all other misdemeanors

or

3. Community Supervision after Conviction for Certain Misdemeanors (§ 411.073)

  • Convicted and placed on community supervision for any misdemeanor other than:
    • Alcoholic Beverage Code § 106 (possession of or selling alcohol to minors), or
    • Penal Code §§ 49.04 (DWI), 49.05 (flying while intoxicated), 49.06 (boating while intoxicated), 49.065 (operating amusement ride while intoxicated), and Ch.71 (engaging in organized criminal activity)
  • Successfully completed community supervision and received discharge & dismissal
  • Was not previously convicted of or placed or deferred adjudication for any offense other than a fine-only traffic violation
  • Issuance is in the best interest of justice
  • Waiting period has passed (from issuance of discharge & dismissal):
    • 2 years for misdemeanors under PC §§ 20, 21, 22, 25, 42, 43, or 46
    • Immediately for all other misdemeanors

or

4. Confinement after Conviction for Certain Misdemeanors (§ 411.0735)

  • Convicted and sentenced to confinement for any misdemeanor other than:
    • Alcoholic Beverage Code § 106 (possession of or selling alcohol to minors)
    • Penal Code §§ 49.04 (DWI), 49.05 (flying while intoxicated), 49.06 (boating while intoxicated), 49.065 (operating amusement ride while intoxicated), and Ch.71 (engaging in organized criminal activity)
  • Successfully released from confinement
  • Was not previously convicted of or placed or deferred adjudication for any offense other than a fine-only traffic violation
  • Issuance is in the best interest of justice
  • At least 2 years from release from confinement

For more information, contact me at Johnson Law Office, PLLC, in Nacogdoches, Texas, by calling 936-205-2322.