Expunctions & Non-Disclosure in Texas: What They Are and What You Can Get
Background checks—once reserved only for “top secret” employment positions, now a common practice for all jobs, scholarships, apartment rentals, loan applications and more. Anyone with access to the internet can look up your criminal history with just a few clicks of a mouse. That has huge ramifications for all Texas residents. It is vital to know what is in your criminal record and, where appropriate, act to clean up that record.
Here’s the rub: you may have a criminal record even though you did nothing wrong. Many Texans are forced to deal with the consequences of a criminal record even though they were found not guilty or if the case was dismissed by the State before a trial. In some cases, you may simply have been the victim of identity theft with another using your information when dealing with police. In all of these cases, even though there was not a conviction, the damage may still exist on your record.
Many others are hounded by past mistakes. Countless residents who pled guilty or were convicted of crimes diligently paid their debt and are working to move on with their lives. Yet, the damage preserved in their criminal record acts as a roadblock again and again.
No matter what your situation, all Texans should understand the tools available to give themselves a clean slate.
There are two tools to clean up your record: An Expungement (known as “expunction” in Texas) and an Order for Non-disclosure.
An Expungement permanently erases an offense from your criminal record so that no one will ever be able to find out that you were charged with the offense—that includes police officers, prosecutors, or the court itself.
An Order of Non-disclosure prevents a clerk of the court from disclosing the presence of an offense to others—usually for background checks. Unlike an expungement, these offenses technically stay on your record but are hidden form certain parties.
The bottom line is that an expungement is a bit more potent than an order of non-disclosure; however both can be incredibly helpful. Different rules dictate what is available in your specific case.
Getting an Expungement in Texas
An Expungement is usually available only in the following circumstances:
- You received an acquittal;
- You were found guilty and then later pardoned;
- You were found guilty and then later proved to be actually innocent.
- You were arrested for a misdemeanor but not formally charged; AND The following period of time have elapsed since your arrest:
- 180 days for a Class C misdemeanor (traffic tickets, etc.)
- one year for a Class A or B misdemeanor
- three years for a felony
If you do not meet one of the four circumstances listed above, you cannot receive an expungement may be able to receive an order of non-disclosure.
Getting an Order of Non-Disclosure in Texas
You can only get an order of non-disclosure if you received “deferred adjudication probation.” Deferred adjudication probation means that you have not technically been convicted because the judge did not specifically find that you were guilty of the offense. Rather, the judge found that there was enough evidence that a finding of guilt could have been made. (If this sounds like hair splitting to you, you’re right.)
If you receive regular probation, you do not qualify for an Order of Non-disclosure.
The Fine Print: Expungements
Those meeting the requirements mentioned above may receive an expungement or an order of non-disclosure. But not all who meet the above requirements will qualify—there are more specific details that must also be met.
Generally, those who were acquitted, pardoned, or later proven to be actually innocent will always qualify unless their arrest was related to a violation of probation.
If you were arrested for a misdemeanor but not charged and the applicable time period has elapsed since your arrest, then you must be more requirements before qualifying. First, you must not have been charged with any other felony offenses that came out of the same event. If you were charged with some other felony from that same event then you must wait until the statute of limitations has run on the offense without a conviction before you can seek an expungement.
In 2011, the state legislature made some changes to expunction rules for those charged with Class C misdemeanors that were dismissed by way of deferred adjudication. In general, these individuals can seek expunction within 180 days of the arrest. Importantly, this does not apply to cases of “Class C reduction,” where a higher level crime is reduction to a Class C via negotiation.
The Fine Print: Order of Non-disclosure
Only those who received deferred adjudication probation may be eligible for an order of non-disclosure. The first page of the court’s judgment placing you on probation will tell you whether you were put on a regular probation or deferred adjudication.
If you were, you can generally seek an order of non-disclosure if:
(1) You have not been charged with anything more than a traffic ticket since the adjudication ended, AND
(2) You were never revoked, AND
(3) The applicable time limit has passed, AND
(4) The offense was not one of the offenses barred by law.
The timing requirements are generally either two years for misdemeanors or five years for felonies after successfully completing the adjudication probation. In some misdemeanors your may file immediately after the applicable statute of limitations has passed. The applicable details are below:
Can Seek Order of Non-disclosure After Statute of Limitations has Passed:
- Acceptance of honorarium
- Bail jumping or failure to appear
- Breach of computer security
- Burglary of a coin collection machine
- Burglary of a coin operated machine
- Burglary of vehicle
- Coercion of public servant or voter
- Credit card transaction record laundering
- Criminal mischief
- Criminal simulation
- Criminal trespass
- Deceptive business practices
- Deceptive preparation and marketing of academic product
- Evading arrest
- Failure to identify
- False identification as peace officer; misrepresentation of property
- False report regarding missing child or missing person
- False report to peace officer or law-enforcement employee
- False statement to obtain credit or property
- Fraudulent filing of financing statement
- Fraudulent instructions, removal, or concealment of writing
- Gift to public servant by persons subject to his jurisdiction
- Hindering apprehension or prosecution
- Hindering secured creditors
- Illegal recruitment of an athlete
- Improper influence
- Insurance fraud
- Interference with railroad property
- Issuance of bad check
- Manufacture or distribution of multichannel video or information services device
- Misapplication of fiduciary property or property of financial institution
- Offering gift to public servant
- Perjury (not aggravated)
- Permitting escape
- Possession, manufacture or distribution of instrument used to commit retail theft
- Publication of telecommunications access device
- Reckless damage or destruction
- Record of a Fraudulent Court
- Refusal to execute release of fraudulent lien or claim
- Resisting arrest, search, or transportation
- Rigging publicly exhibited contest
- Sale or lease of multichannel video or information services device
- Securing execution of document by deception
- Simulating legal process
- Stealing or receiving stolen check or similar site order
- Tampering with governmental record
- Tampering with identification numbers
- Tampering with or fabricating physical evidence
- Theft of service
- Theft of telecommunications service
- Theft or tampering with multichannel video or information services
- Trademark counterfeiting
- Trespass by holder of license to carry concealed handgun
- Unauthorized use of telecommunications service
Can Seek Order of Non-disclosure TWO years After Completion:
- Abuse of a corpse
- Advertising for placement of a child
- Aiding suicide
- Attack on an assistance animal
- Cruelty to animals
- Deadly conduct
- Discharge of firearm
- Disorderly conduct
- Disrupting a meeting or procession
- Dog fighting
- Enticing a child
- False alarm
- False report
- Harboring a runaway child
- Hoax bombs
- Indecent exposure
- Interference with an emergency telephone call
- Leaving a child in a vehicle
- Making a firearm accessible to a child
- Obstructing a highway or passageway
- Possession of prohibited weapons
- Public lewdness
- Silent or abusive calls to 911
- Terroristic threat
- Unlawful possession of body armor
- Unlawful possession of firearm
- Unlawful restraint
- Unlawful transfer of certain weapons
- Unlawfully carrying a handgun by a license holder
- Unlawfully carrying a weapon
- Use of laser pointer
- Violation of a protective order
Order of Non-disclosure Not Allowed by Law:
- Aggravated sexual assault
- Any offense for family violence
- Child endangerment
- Indecency with a Child by Contact
- Indecency with a Child by Exposure
- Injury to a child
- Sexual assault
- Violation of a protective order
Getting Expungement or Order of Non-disclosure in Austin, Texas
While the tools to clean up your criminal record exist, it is not easy to navigate the system successfully. These issues are very complex, and even minor errors in the process can result in rejection. Also, state laws relating to expunctions and non-disclosure can change all the time. For that reason it is crucial to take advantage of these tools while they are available. You never know if the law will change in the future to limit your rights.
Fortunately, help is available.
Attorney Bill Mange has been working with Texans and their criminal charges since 1988. A Board Certified expert in criminal law with over 85 jury trials under his belt, he knows what he is doing and has the skills to resolve your case successfully. If you have a question about expunction, non-disclosure or any other matter relating to criminal law, Attorney Mange is here to guide you through the process.