What is Nondisclosure of a Criminal Case?
A non-disclosure is a court order that prevents public entities, including police, prosecutors, and court clerks, from disclosing or releasing arrest and case information to the general public. The charge is sealed from public view and it will not show up on most background checks.
People who receive a nondisclosure do not have to report their arrest to most employers. However, certain licensing agencies, law enforcement and government organizations will still have access to the information and records. People interested in becoming a teacher, nurse, lawyer or any job licensed by the state must report it to their respective licensing agency, as these boards will see the charge.
Background of Criminal Nondisclosures
In Texas, any type of arrest or criminal charge – even if it resulted in a favorable outcome – can adversely impact your future. A criminal record may prevent you from getting into the college of your choice, landing your dream job, or even closing a deal on a new house. It is important to understand your options.
A nondisclosure allows you to seal your record from most prying eyes so you can get on with your life. In this article, Benson Varghese, a Fort Worth Nondisclosure Lawyer, explains the nondisclosure process in Texas. Fortunately, significant changes to nondisclosure laws went into effect in September 2015, and again in September 2017 and 2019, which expanded eligibility for people seeking to seal their criminal record through a nondisclosure.
If you believe you may be eligible for a nondisclosure, contact a Fort Worth Nondisclosure Attorney at our office for a free consultation. We will review your case and work to get your criminal record sealed so you can put your past behind you.
What’s the Difference between a Nondisclosure and an Expunction?
An expunction orders the destruction of all records of an offense. A nondisclosure, on the other hand, seals the record prevents the Texas Department of Public Safety and other law enforcement agencies from releasing arrest and case information to anyone other than another law enforcement agency or certain specific agencies. In other words, a nondisclosure ensures that your record is no longer a “public record.”
Who is Eligible for a Nondisclosure?
Prior to September 1, 2015, only individuals who had their cases dismissed after successfully completing deferred adjudication probation were eligible for a nondisclosure. That has since changed – and in a big way. Currently, there are a number of scenarios under which nondisclosures are now possible. Under Texas Government Code, Chapter 411, you may qualify for a nondisclosure (other conditions apply) if:
- you successfully completed deferred adjudication for certain nonviolent misdemeanors AFTER September 1, 2017 and it has been at least 180 days since your plea – Section 411.072. This is sometimes referred to as an automatic nondiclsoure because the judge “shall” grant the order of nondisclosure UNLESS the judge finds it would not be in the best interest of justice;
- you successfully completed deferred adjudication for certain felonies or misdemeanors and obtained a dismissal – Section 411.0725. This is the most commonly applied for nondisclosure;
- you received a dismissal after completing deferred adjudication for a qualifying DWI or BWI (Boating While Intoxicated) – Section 411.0726;
- you successfully completed a veteran’s court treatment program – Section 411.0727;
- you are a sex trafficking victim and your prostitution conviction or related offense was set aside (judicial clemency) – Section 411.0728;
- you completed a veteran’s reemployment program – Section 411.0729;
- you successfully completed straight probation for certain misdemeanors and have never previously been convicted or placed on deferred adjudication for any offense – Section 411.073;
- you successfully completed DWI probation for a first-time offense– Section 411.0731
- you served jail time for certain non-violent, non-sexual misdemeanors after Sept 1, 2015 – Section 411.0735;
- you served a misdemeanor DWI jail sentence for a first-time offense – Section 411.0736.
As you can see, this can be a bit complicated. To find out if you are eligible for a nondisclosure, contact our law firm to speak to an experienced Fort Worth nondisclosure lawyer. We will review your case and determine if you meet the criteria to have your record sealed.
What Offenses are Not Eligible for a Nondisclosure in Texas?
You cannot get a nondisclosure in Texas IF you’ve ever had to register as a sex offender
You also cannot get a nondisclosure in Texas for the following offenses in Texas:
- Aggravated Kidnapping
- Any family violence offense or any case in which there was an affirmative finding of family violence
- Human trafficking
- Injury to a Child
- Injury to the Elderly
- Injury to the Disabled
- Abandoning a Child
- Endangering a Child
- Violation of Certain Protective Orders
You cannot get a nondisclosure in Texas if you are convicted or receive deferred during the waiting period.
You cannot get a nondisclosure in Texas if you are convicted or placed on deferred adjudication for any offense other than a fine-only traffic offense during the waiting period. The waiting period for nondisclosures are:
|Unlawful Disclosure of Intimate Material
|Misdemeanor Assault (not Family Violence)
|Leaving a Child in a Vehicle (misdemeanor)
|Enticing a Child
|Harboring a Runaway
|Obstruction of Highway
|Silent or Abusive 911 Calls
|Interference with Emergency Call
|Abuse of Corpse
|Cruelty of Animals
|Discharge of a Firearm
Can I Get a Non-disclosure for a DWI in Texas?
Yes, as long as it’s a first-time DWI and certain other criteria are met. In 2017, House Bill 3016, also called the “Second Chance Law” went into effect, allowing for a nondisclosure of a first-time DWI (with probation or jail time) under certain circumstances. Before this law was enacted, a DWI could not be sealed in Texas. To be eligible:
- It must be a first-time misdemeanor DWI offense.
- Driver’s BAC cannot be .15 or higher.
- Case cannot have involved an accident involving another person (including your own passenger)
- Applicant must not have any other prior convictions, other than this DWI, for anything other than a traffic offense.
- Applicant must have successfully completed probation for the DWI offense and paid all fines, costs and restitution OR received a jail sentence and paid all fines, costs and restitution.
- Applicant cannot have been placed on deferred adjudication for certain violent crimes or any crime requiring sex offender registration. Prior traffic offense punishable by fine-only are not considered.
- Nondisclosure will only be granted if judge determines it is the best interest of justice.
You cannot get a DWI Nondisclosed in Texas if:
You cannot have a DWI nondisclosed in Texas (after deferred, probation, or a conviction) if (excluding the DWI) you have ever been previously convicted of or placed on deferred adjudication for anything other than a Class C traffic offense. (See 411.0726(b)(3) and 411.0731(b)(2))
Can I Get a Non-Disclosure if I Completed Straight Probation for a Misdemeanor Offense?
Yes, for certain misdemeanors. There are generally two types of community supervision in Texas – deferred adjudication probation and straight probation. The difference between the two is that there is a finding of guilt – a conviction – if a person receives straight probation.
Before September 2015, a person could not get a nondisclosure after straight probation in Texas even if they successfully completed the terms of their probation. They were only eligible if they had successfully completed deferred adjudication. The law was expanded in 2015 when Government Code Section 411.073 was enacted, which made a defendant eligible to apply for a nondisclosure after successfully completing straight probation for certain misdemeanors.
To qualify for a nondisclosure after straight probation:
- The offense cannot be an intoxication-related crime, other than a first-time DWI qualifying with a blood alcohol concentration of less than .15 that didn’t involve an accident. The offense also cannot be engaging in organized crime.
- The defendant cannot have been convicted or placed on deferred adjudication for any offense, other than a fine-only traffic violation, at any time, including after sentencing, during probation or during any applicable waiting period.
- The defendant must have successfully completed probation.
Can I Get a Nondisclosure if I was Sentenced to Jail Time?
Yes, in some circumstances. Similar to straight probation cases, certain misdemeanor convictions that resulted in jail time are also now eligible for nondisclosures under Government Code Section 411.0735. Nondisclosure for jail time basically tracks the same rules and exceptions as nondisclosures for straight probation:
- Intoxicated offenses (except for first-time DWI offenders who qualify under House Bill 3016) and engaging in organized activity are precluded.
- The defendant cannot have been convicted or placed on deferred adjudication or community supervision for any offense other than a fine-only traffic violation at any time, including after sentencing, during probation or during any applicable waiting period.
- Defendant must wait two years after their release from jail to petition for a nondisclosure and show that a nondisclosure is in the best interest of justice.
Nondisclosure after Jail in Texas: Checklist
You may be able to have your offense nondisclosed after jail time, on a non-DWI offense if:
1. The offense was a misdemeanor;
2. It was not an offense involving organized crime, family violence, nor can it be sexual in nature.
3. You have never previously been convicted or placed on deferred adjudication for another offense (other than a traffic citation);
4. You have waited two years from the date you completed your sentence.
5. The court finds granting the nondisclosure will be in the best interest of the public. Since this is a subjective finding, no one can guarantee a successful nondisclosure under this statute.
What are the Waiting Periods for a Nondisclosure?
In Texas, certain waiting periods are required before you can ask the court for a nondisclosure.
For felonies, five years must elapse from the date of discharge before a petition for non-disclosure can be filed. For many misdemeanors, you can file immediately after completing deferred adjudication. However, for some misdemeanors, a petitioner must wait two years after the date of discharge before seeking a petition for non-disclosure.
Offenses with two year-waiting periods include:
- 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
- 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
To accurately determine your eligibility date, it’s important to contact an experienced non-disclosure attorney who knows all of the rules and regulations that comes with petitioning the court for a non-disclosure. A knowledgeable Fort Worth nondisclosure attorney will be able to calculate your waiting period and determine your eligibility.
What is the Process to Request a Nondisclosure in Fort Worth?
As mentioned, a nondisclosure in Texas is the legal mechanism used to seal a person’s criminal history so that no one other than law enforcement agencies or a state license agencies have access to the record. To obtain a nondisclosure, a petition for nondisclosure must be prepared and filed with the proper court in county in which you were charged. The state then has an opportunity to request a hearing or the court can set one on its own. At the hearing, the court will determine if granting the nondisclosure is in the best interest of justice, and if so, the judge will grant an order prohibiting the disclosure of the criminal record.
Can I Deny an Offense if it was Nondisclosed?
Generally, if you have an offense that has been nondisclosed, you are no longer required to report it. However, there are agencies for which nondisclosure orders do not apply.
What Agencies have Access to a Nondisclosed Offense?
There are specific agencies that have access to nondisclosed offenses, including
- Law enforcement agencies
- State Board of Educator Certification
- School districts, charter schools, private schools, regional education service centers, commercial transportation companies, or education shared service arrangements;
- Texas State Board of Medical Examiners
- Texas School for the Blind and Visually Impaired;
- Texas Board of Law Examiners;
- State Bar of Texas;
- District court regarding a petition for name change
- Texas School for the Deaf;
- Department of Family and Protective Services;
- Texas Youth Commission;
- Department of Assistive and Rehabilitative 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;
- Texas Private Security Board;
- Municipal or volunteer fire department;
- Board of Nurse Examiners;
- Safehouse providing shelter to children in harmful situations
- Public or nonprofit hospital or hospital district;
- Texas Juvenile Probation Commission;
- Securities commissioner, the banking commissioner, the savings and loan commissioner, or the credit union commissioner;
- Texas State Board of Public Accountancy;
- Texas Department of Licensing and Regulation;
- Health and Human Services Commission; and
- Department of Aging and Disability Services.
Why are Nondisclosure Petitions Sometimes Denied?
There are several reasons a nondisclosure can be denied, including inaccurate eligibility, a mistake in the petition, or the judge did not believe it was in the best interest of society. It’s interesting to note that if you are eligible for an expunction and follow all the proper procedures, an expunction must be granted. However, if you are eligible for a nondisclosure and follow all the proper procedures, the judge has the discretion to grant or deny your petition for a nondisclosure. You will increase your chances of obtaining a nondisclosure if you rely on the skills of an experienced Fort Worth nondisclosure lawyer.
How Long Does the Fort Worth Nondisclosure Process Take?
Once we review your case for eligibility, we will prepare the motion for nondisclosure. We will confirm the information we find in the court records with you before filing the motion. Once the motion is filed, the State will have an opportunity to respond. This generally takes two to six weeks, but can take longer. If the State does not have an objection, the parties may come up with an agreed order. The matter then gets set on the court’s docket. That may take weeks or months. The court could require a hearing, or if there’s an agreement, might waive the hearing. Once the order is signed by the court, the process is only halfway done. We then send the order of non-disclosure to every entity we believe has your information. They then go through the process of taking down the information from the public eye. It takes time for these orders to get processed though. For example, Texas DPS – the primary supplier of background information in Texas – is about four months behind on complying with orders – and that’s before the pandemic. As a result, it could take a number of months for the order to be complied with. We generally wait about six months before running a background check. At that point if your information is still showing up and we know who is publishing the information, we send a certified letter and a copy of the order to that entity explaining it is a criminal violation to distribute the sealed information. So far, we’ve been able to get everything down using this method, but if the information did not get taken down, we’d make a referral to law enforcement.
How Can a Fort Worth Nondisclosure Lawyer Help?
As you can tell, nondisclosures can be complicated. Determining if you are eligible and how long you have to wait to file a petition can be tricky and mistakes can derail the process. That’s why it’s best to leave it up to an experienced Fort Worth nondisclosure attorney who knows how to seal a criminal record. Our team at Varghese Summersett will do all the heavy lifting for you. We will determine eligibility, calculate your waiting period, draft and file the petition and aggressively represent you in court. We know you’ve already been through a lot and probably want to avoid the courthouse as much as possible. Let us take it from here while you focus on the future. Call us today for a free consultation.