In my career, the biggest mistake I have seen lawyers make regarding their client’s criminal record is that after a deferred adjudication probation, that their record is clean. Deferred adjudication is a type of probation where your case is dismissed if you are able to successfully finish your probation, so it is true that you do not have a conviction…BUT THE ARREST RECORD WILL BE VISIBLE TO EVERYONE FOR THE REST OF YOUR LIFE UNLESS YOU APPLY FOR A NON-DISCLOSURE!
In some cases, deferred adjudication is a great plea deal, but you have to understand collateral consequences of the guilty plea. In my opinion, the biggest problem with deferred adjudication is the fact that the arrest (and the fact that you did probation) are visible on your record. What that means, is that anytime you apply for a job or an apartment that they will be able to see that information too. Anyone in a hiring position, and most apartments (schools, etc), understand that being placed on deferred adjudication means that you pled guilty. Whether it is fair or not, they are going to hold that against you, and it is not going to end well. Again, the remedy for this is calling me, and hiring me to help you get a non-disclosure.
What is a Non-Disclosure?
A non-disclosure is not an expunction. It does not destroy all the records. What is does do, is make the record not visible to the general public. However, the government, governmental agencies, and law enforcement will still have access to the records.
The general public will not be able to see what they once had access to, thus making your life less stressful.
To be eligible for a non-disclosure, you must have finished your deferred adjudication probation. Some misdemeanor cases are eligible immediately the day you finish probation, others have a two-year waiting period. Additionally, depending on the county, different judges have different rules also. Some judges refuse to grant non-disclosures on certain cases unless specific conditions are met (a waiting period, negative drug tests, etc). If you have a specific question just feel free to call me at 713-222-2828.
There is a two-year waiting period on misdemeanors for the following charges:
- Abuse of Corpse
- Advertising for Placement of a Child
- Attack on Assistance Animal
- Certain Bond Violations in Family Violence Cases
- Cruelty to Animals
- Destruction of Flag
- Discharge of Firearm in Municipality having over 100,000
- Disorderly Conduct
- Disrupting Meeting or Procession
- Electronic Transmission of Certain Visual Material Depicting Minor
- Enticing a Child
- False Alarm or Report
- Funeral Service Disruption
- Harboring a Runaway
- Hoax Bombs
- Illumination of Aircraft by Intense Light (Laser)
- Indecent Exposure
- Interference with Emergency Call
- Making Firearm Accessible to Minor
- Obscene Display or Distribution
- Obstruction of a Highway
- Possession of a Prohibited Weapon
- Promotion of Prostitution
- Public Lewdness
- Sale, Distribution, or Display of Harmful Material to Minor
- Silent or Abusive 911 Calls
- Unlawful Carrying of a Weapon
- Unlawful Disclosure of Intimate Visual Material
- Unlawful Restraint
- Unlawful Transfer of Certain Weapons
Felony cases are different. On felony cases (if you are eligible), there is a five-year waiting period. What that means, is that from the day you get off of deferred adjudication, you have to wait a full five years until you are eligible to apply for a non-disclosure.
You may have noticed above I typed “If you are eligible”. There are some cases that are not eligible for non-disclosures.
You are not eligible if you have been previously convicted or placed on probation for any of the following crimes:
- Abandoning or endangering a child
- Aggravated kidnapping
- Aggravated sexual assault
- Attempt, conspiracy, or solicitation to commit any of these listed offenses
- Burglary of a habitation with the intent to commit any of the above offenses
- Capital murder
- Compelling prostitution
- Indecency with a child
- Injury to a child, elderly individual, or disabled individual
- Possession of production of child pornography
- Prohibited sexual conduct (incest)
- Sexual assault
- Sexual performance by a child
- Unlawful restraint, kidnapping, or aggravated kidnapping of anyone under the age of 17
- Violation of protective order or magistrate’s order
- Any other offense involving family violence
Additionally, you may no longer be eligible for a non-disclosure, if after you finish your probation, you are charged with another crime and convicted (or placed on another deferred adjudication).
As of 2015 you can now potentially non-disclose straight probation convictions and jail time convictions. See my section on “Non-Disclosures for Convictions” for more information.
As of 2017 you can now potentially non-disclosure DWI convictions. See my section on “Non-Disclosures for DWIs” for more information.
What is the Process for a Motion for Non-Disclosure?
The process depends a lot on what county the charge was in. But typically, when you hire me I will sit down with you and get all of your basic information. We will have to get some private information such as social security number, drivers license number, birthdate, etc in order to properly fill out the petition for non-disclosure. Once I prepare all the forms I will submit them to the court and we will get a court date. On the day of court I will talk to the DA and see if they have any objections. Many times the judge will call you up and ask you questions about your life and the charge. And once the judge hears the evidence, it will be in their hands whether the petition is approved. A majority of the time, judges are happy to approve these petitions if you are eligible.
Can I Deny a Charge After Being Granted a Non-Disclosure?
Yes, once non-disclosed you are no longer required to disclose the charge. But some agencies are going to have access to the offense even after it is non-disclosed.
Which Agencies will Still be able to see My Record After a Non-Disclosure?
- Board of Nurse Examiners
- Department of Aging and Disability Services
- Department of Assistive and Rehabilitative Services
- Department of Family and Protective Services
- Department of State Health Services, a local mental health service, a local mental retardation authority, or a community center providing services to persons with mental illness or retardation
- District court regarding a petition for name change
- Health and Human Services Commission
- Law enforcement agencies
- Municipal or volunteer fire department
- Public or nonprofit hospital or hospital district
- Safehouse providing shelter to children in harmful situations
- School districts, charter schools, private schools, regional education service centers, commercial transportation companies, or education shared service arrangements
- Securities commissioner, the banking commissioner, the savings and loan commissioner, or the credit union commissioner
- State Bar of Texas
- State Board of Educator Certification
- Texas Board of Law Examiners
- Texas Department of Licensing and Regulation
- Texas Juvenile Probation Commission
- Texas Private Security Board
- Texas School for the Blind and Visually Impaired
- Texas School for the Deaf
- Texas State Board of Medical Examiners
- Texas State Board of Public Accountancy
- Texas Youth Commission