Our Expunction & Nondisclosure Practice
In many cases, we can clean your criminal record.
Expunction & Nondisclosure
Details of Our Expunction and Nondisclosure Practice
Background checks are now commonplace for anyone applying for a job, to lease a house or apartment, a loan of any kind, a scholarship, or any type of vocational or professional license, A criminal record or record of arrest can ruin your application process and dramatically affect your future. One of the most important things you can do is to clean your criminal and arrest records. In Texas, there are 3 possible procedures that can be used to clean your criminal or arrest record. They are Expunction, Nondisclosure and Sealing. The purpose of these laws is to provide a person with a fresh start, untarnished by a mistake that may have made in the past. Or, in the event of a wrongful criminal charge, complete destruction of the arrest and criminal record. The criminal offenses that can be Expunged or Nondisclosed range from the lowest level of crimes (traffic citations), which are Class C misdemeanors, up to the highest crimes, including 1st-degree felonies. However, Nondisclosure laws exclude some of the higher crimes.
Sealing a criminal record is relatively rare because it is available only to Juveniles. Even without the Sealing procedure, juvenile records are not available to the general public. However, they may be viewed by law enforcement officials, including any prosecutors on any future charges. If you have a juvenile criminal record but haven’t been charged with any additional crimes, in most cases, it is possible to have your records sealed, even from law enforcement.
Affect of Orders for Expunction or Nondisclosure
An Order for Expunction or Nondisclosure mandates either complete destruction of or an order not to disclose any records resulting from an arrest, including any and all records from courts, police departments, district and county clerks, jails, county public defenders, Sheriffs, District Attorneys, County Attorneys and the Texas Department of Public Safety. However, there is a big difference between Expunction and Nondisclosure orders. Expunction is broader and more final. That’s because an Expunction order mandates the “destruction” of all records generated from an arrest, rather than an order to “not disclose” records that remain intact, as in the case of a Nondisclosure order. Additionally, although a Nondisclosure order hides criminal and arrest records from the general public, the law allows disclosure to several State agencies, including, primarily, various law enforcement agencies, State regulatory agencies, and State investigative agencies. It also includes financial institutions and hazardous transportation companies when the subject of the Order of Nondisclosure seeks employment with them. A complete list of the entities which may continue to receive criminal and arrest records, even after an Order of Nondisclosure, is set forth in Section 411.0765 of the Texas Government Code.
The benefit of these procedures whether the records are Sealed, Nondisclosed or Expunged is that your criminal history is kept hidden from potential employers, landlords, financial institutions, and educational institutions. The effect of Expunction and Nondisclosure Orders falls in line with the purposes of the laws. Keep in mind that the purpose of Expunctions is to provide people with a way to clear their criminal record when they were wrongfully arrested or charged with a criminal offense. In that situation, complete destruction of all traces of the arrest from the State’s records is the only fair thing to do. The purpose of a Nondisclosure, on the other hand, is to provide a person who committed a crime with a way to clear their criminal record for a one-time mistake or lapse in judgment. For that reason, the records are not destroyed, but rather are hidden from the general public, with disclosure only to law enforcement and the State agencies referenced above.
Qualifications for Expunction and Nondisclosure
By statute, both Expunctions and Nondisclosures have unique and different “qualifications” for obtaining an order from a court. The qualifications focus, primarily, on the type of criminal charge and how it was resolved.
To start with, Expunctions require a complete dismissal of the charge without any type of probation or deferred adjudication. There are 3 categories of Expunctions. First, a person could qualify for an Expunction if they took their case to trial and won by receiving a verdict of not guilty. A pardon from the Governor of the State of Texas or a pretrial intervention agreement has the same effect. Second, if a filed criminal charge, in the case of a misdemeanor, or grand jury indictment, in the case of a felony, is later dismissed by a County or District Attorney, without a plea agreement, it is eligible for Expunction. In this scenario, there are waiting periods before an Expunction petition can be filed. Third, criminal records procured through identity theft can also be expunged with proof of a stolen identity. Importantly, there are no crimes excluded from consideration for Expunction. From traffic tickets to capital murder, if the charge qualifies, it can be Expunged.
Nondisclosures, on the other hand, are generally available for relatively low level or first-time crimes that were NOT completely dismissed. There are 8 different categories of Nondisclosure, each with their own specific qualifications. In most categories, the charge was disposed of through successful completion of deferred adjudication or probation, but some categories allow convictions, even with jail time served. Regardless of the category, ALL Nondisclosures have 2 common qualifications: 1) No convictions or deferred adjudications for anything other than traffic violations from the time of sentencing of the crime to completion of the sentence, plus any applicable waiting period, and 2) No convictions or deferred adjudication for certain enumerated offenses. The list of enumerated criminal charges that are excluded from the Nondisclosure process include, generally, kidnapping, murder, human trafficking, violations of protective orders, injuries to children, elderly or disabled, stalking and family violence. If either of these 2 qualifications cannot be met, a Nondisclosure will not be ordered. The specific qualifications for each of the 8 different categories of Nondisclosure generally deal with the level of the criminal charge and how it was resolved.
The good news is that recently, Texas laws of Nondisclosure were significantly expanded by eliminating some of the excluded criminal charges and by including charges that resulted in convictions, which were previously excluded. This includes some first-time DWI’s. Importantly, the new law applies not only to charges occurring after the new law was enacted, but also any charges that occurred BEFORE enactment of the new law. So, old cases that were previously not eligible for a Nondisclosure may now be eligible, including DWI’s.
Legal Procedures for Expunctions and Nondisclosures
Texas laws of Expunction and Nondisclosure are rather complex. Proceeding with an Expunction or Nondisclosure requires an in-depth analysis of the charged criminal offense, how it was resolved and the complete criminal history of the person seeking the Order. The process can be further complicated with cases of multiple criminal charges in the same incident or other convoluted case resolutions. Competent legal representation is a must for anyone seeking an Expunction or Nondisclosure of their criminal and arrest records!
After a thorough analysis of a criminal record, a decision must be made as to whether to file for an Expunction or a Nondisclosure. Once that decision is made, in both cases, a petition and order must be prepared and filed in the county of the criminal charge. If the charge is a Class B misdemeanor or higher, it is filed with the District or County Clerk of the County where the criminal charge was made. For Class C misdemeanors (Traffic Tickets), it is filed in the appropriate municipal or Justice of the Peace Court where the charge was resolved. Each, county, municipal court, and Justice of the Peace Court has its own specific procedural filing requirements, which you must be familiar with before filing.
The contents of a Petition and Order for Expunction or Nondisclosure must include a complete identity of the petitioner, the procedural facts of the criminal charge and how it was resolved, identification of the appropriate statute on which you rely for the relief sought, an argument for how the law supports the factual basis for the relief sought, and a list of the entities in possession of records of the arrest and all records generated therefrom. Once the petition is filed, it will be reviewed by a prosecutor for a possible response and a hearing may be scheduled.
Orders for Expunction and Nondisclosure are not effective until signed by the judge. Importantly, Expunctions are NOT discretionary with the court. Rather, each offense either “qualifies” for Expunction pursuant to the statutes, or it does not. Therefore, with Expunctions, a judge’s only determination is whether the undisputed facts of the case meet the qualification requirements for Expunction. If so, the judge must sign the order. If not, the judge must deny the order. For this reason, Expunction hearings are relatively rare.
With all but 1 of the 8 categories of Nondisclosure, the judge has discretion as to whether to sign the order or not. The judge will sign the order only if he or she determines that doing so “is in the best interest of justice.” Any objections to the order by the prosecutor will be considered by the judge on a case by case basis. The most common objections are that the petitioner has a history of multiple criminal offenses either prior to or after the charge at hand, or that the facts of the criminal charge are particularly egregious.
Once the Order is signed, the District or County Clerk is required to provide certified copies of the Order to all State agencies listed in the Petition and Order. These agencies must follow the Order immediately upon receipt of it; and thereby either destroy the records, send them to the District Clerk for destruction or continuously refuse to disclose their existence, except to the appropriate State Agencies.
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The laws on expunction are complex in Texas
However, depending on the details of your case, there is a good chance we can get your record expunged, non-disclosed or sealed. Call us to find out your options!