ORDERS OF NON-DISCLOSURE (RECORD SEALING)

Ross Law Offices – Denton County Defense Attorney

One of the most common questions our office receives is regarding Non-Disclosures and Expunctions, and the effects they have on a person’s “permanent record”. With the ease and availability that the internet provides today, running a background check on someone takes only a few moments. What is discovered in these “background checks” can mean the difference between a person getting into a school or being denied, getting that job they really want, obtaining a loan or mortgage, and have lasting effects on almost every other aspect of a person’s life. The following is a list of commonly asked questions regarding an Order of Non-Disclosure.

If you would like to speak with us to find out whether you qualify for this, or an Expunction, please give us a call. An initial consultation is always free, and taking pro-active measures now can have a tremendous impact on the rest of your life.

Eligibility for Non-Disclosure

  • Does it matter if I was previously placed on deferred adjudication community supervision for another offense?  No, as long as the previous offense was not an offense requiring registration as a sex offender under Chapter 62, aggravated kidnapping, murder, capital murder, offense involving injury to a child elderly individual, disabled person, abandoning or endangering a child, violation of protective order or magistrate’s order, stalking, or an offense involving family violence. Additionally, if you are convicted or placed on deferred adjudication for another offense while you are on deferred adjudication for this case or if you are convicted or placed on deferred adjudication for another offense during the waiting period then you are not eligible for an order of nondisclosure on this case. 411.081(d)
  • After the order of nondisclosure is issued, can I petition for expungement?  No. If you are eligible for an order of nondisclosure then you are not eligible for expungement of this case.
  • Does my disposition of guilty or no contest matter?  No. The main factor that makes a case eligible is if the person completed deferred adjudication successfully.
  • I do not know what is on my record or I am not sure if I received deferred adjudication, can you help me?  For a small researching fee, we can review what is on your criminal record and how your case was disposed. We will determine which service(s) in Texas you are eligible, and the researching fee will be applied to the total cost of any service you hire us to perform.
  • What if I have multiple cases?  If you are convicted or placed on deferred adjudication for another offense while you are on deferred adjudication for this case or if you are convicted or placed on deferred adjudication for another offense during the waiting period then you are not eligible for an order of nondisclosure on this case. 411.081(d)
  • What is deferred adjudication in Texas?  Deferred adjudication is a sentence that the judge gives you. Typically, you are placed on probation as part of the sentence. Upon completing the sentence, the judge dismisses the case and “defers” the guilty plea. Under Texas law this is not considered a conviction. 411.081(d)
  • What is the waiting period for the case?  Felony cases have a five year waiting period. The following misdemeanors require a two-year waiting period: abuse of corpse; advertising for placement of child; aiding suicide; assault; bigamy; cruelty to animals; deadly conduct; destruction of flag; discharge of firearm; disorderly conduct; disrupting meeting of procession; dog fighting; false alarm; harassment; harboring runaway child; hoax bombs; indecent exposure; interference with emergency telephone call; leaving child in a vehicle; making a firearm accessible to a child; possession, manufacture, transport, repair, or sale of switchblade knife or knuckles; public lewdness; riot; silent or abusive calls to 9-1-1 service; terrorist threat; unlawful carrying of handgun by license holder; unlawful carrying weapons; unlawful possession of firearm; unlawful restraint; unlawful transfer of certain weapons; violation of protective order preventing offense caused by bias or prejudice. If your case was not for one of these offenses then there is no waiting period and you can file with the court once your deferred adjudication is complete. 411.081(d)
  • When does the waiting period begin?  The waiting period begins the date you complete your deferred adjudication. 411.081(d)
  • What offenses are not eligible for an order of nondisclosure (criminal record sealing) in Texas?  The following offenses are not eligible: an offense requiring registration as a sex offender under Chapter 62, aggravated kidnapping, murder, capital murder, offense involving injury to a child elderly individual, disabled person, abandoning or endangering a child, violation of protective order or magistrate’s order, stalking, or an offense involving family violence. 411.081(e)
  • What offenses are under Chapter 62? A conviction OR juvenile adjudication of any of the following: – Penal Code 21.02 (continuous sexual abuse of young child/children) – Penal Code 21.11 (indecency with a child) – Penal Code 22.011 (sexual assault) – Penal Code 22.021 (aggravated sexual assault) – Penal Code 25.02 (prohibited sexual conduct) – Penal Code 43.05 (compelling prostitution) – Penal Code 43.25 (sexual performance by a child) – Penal Code 43.26 (possession or promotion of child pornography) – Penal Code 20.04(a)(4)(aggravated kidnapping) IF the actor committed the offense or engaged in the conduct w/INTENT TO VIOLATE OR ABUSE THE VICTIM SEXUALLY – Penal Code 30.02 (burglary), IF the offense is punishable under subsection (d) of that section AND actor had intent to commit a felony in paragraph (A) or (C) of that section. – Penal Code 20.02 (unlawful restraint), 20.03 (kidnapping), or 20.04 (aggravated kidnapping) IF: o Judgment contained an affirmative finding under section 42.015….OR… o The hearing order or papers in the case contain an affirmative finding that the victim/intended victim was under 17. – Penal Code 33.021 (online solicitation of a minor) – Penal Code 21.08 (indecent exposure)…IF a second violation AND did not result in deferred adjudication An attempt, conspiracy, or solicitation of any of the above, except the last one (indecent exposure) Violation of another state or jurisdiction’s laws for offense containing elements substantially similar to the elements of any of those offenses….unless the out-of-state offense ended in deferred adjudication.
  • What is the main reason that a request for an order of non-disclosure is denied?  Requests are denied for the following reasons: (1) an inaccuracy in the court file, (2) an inaccuracy in the application, (3) the court does not believe that granting you an order of non-disclosure will be in the interest of society or (4) not paying fines. 411.081(d-e)

The Process of Obtaining an Order of Non-Disclosure

  • Do I have to go to court?  Although a licensed attorney will appear in court for you, in Texas cases, the judge will frequently require your presence. If you live out of state or if attending the hearing would be a hardship for you, we can ask the court to excuse your presence, but this is not guaranteed.
  • How long will it take to obtain an order of non-disclosure?  Typically, the entire process takes anywhere from four to nine months, depending on the county.  However, cases can take less or more time depending on the facts of the case, whether the DA is agreeing or objecting, and the age of the case. We work on your case as fast as we can and assist the court and DA in anything they need to get your case heard.
  • Can the process be done faster?  The courts work on a first-come, first-served basis. Therefore, the sooner you sign up, the sooner your case is heard and decided. If helpful, we will gladly write your employer or potential employer a letter letting them know we have reopened the case and are in the process of petitioning the court for an order of nondisclosure.
  • What happens after the judge signs the order of nondisclosure?  You will receive a court order of nondisclosure. The order will update the court and state records.
  • Can I appeal if my non-disclosure request is denied?  A legal doctrine called “res judicata” prevents a party from relitigating claims that have already been decided by a court. (Barr v. Resolution Trust Corp., 837 S.W.2d 627 (Tex. 1992)). In Texas, res judicata applies to a petition for an order of nondisclosure. (Ex Parte Myers, 68 S.W.3d 229 (2002); see Ramsey v. State, 249 S.W.3d 568 (Tex. App. Waco 2008); Bergin v. State, 2006 Tex. App. LEXIS 7571 (2006)). Typically, once the judge makes a decision to deny a petition for an order of nondisclosure, that decision is final (unless successfully appealed) and the case cannot be refiled at a later time. However, in some cases, if the facts have changed or new facts have occurred since the petition was denied, such as new educational or career opportunities, volunteer work, or completion of treatment programs, a petition may be refiled without being barred by res judicata. Because of the risk of being prevented from refilling and the difficulty of complying with the requirements of the law, hiring an attorney experienced in Texas law to properly file the petition is extremely important.

Benefits of Non-Disclosure

  • If I have a case with deferred adjudication, is the record available to the public?  Yes, the record will show as a deferred case and the charges will be viewable unless you apply for an order of non-disclosure. Texas Government Code § 411.081(d)
  • What is non-disclosure?  The court issues an order prohibiting criminal justice agencies from disclosing to the public any criminal history record information related to the offense giving rise to the deferred adjudication. Therefore, the records are sealed and the public can’t view them. Texas Government Code § 411.081(d)
  • Do I have to disclose the arrest or court case?  A person whose criminal history has been sealed with an Order of Nondisclosure is not required to disclose their arrest or court case in any application for employment, information, or licensing to the state that the person has been the subject of any criminal proceeding that was sealed. Therefore, the person can deny the arrest or court case. § 411.081(g-2)
  • Can my sealed Texas record still be used against me?  Since the case records are still viewable by criminal justice agencies, the records can be used in subsequent prosecution for another crime. 411.081(i)
  • What is the difference between expungement and nondisclosure?  Non-disclosure, often called record sealing in Texas, requires the Department of Public Safety to send a copy of the order to all law enforcement agencies, jails, etc. who are then ordered to seal the records, but not destroy them. So, they cannot disclose the offense, but the records are not destroyed. Also, the prior criminal record could be used against the person in a subsequent prosecution. Texas Government Code § 411.081(d) Expungement results in the destruction of all references and records of the case from public records. The Department of Public Safety also requests any federal depository to return and destroy them. The court record for expungement is destroyed 60 days – 1 year after order is issued. § 55.01(a)
    A case is only eligible for one service and what the eligible service is depends on the sentence for that case.
  • Will an order of non-disclosure relieve me of the requirement to register as a sex offender?  No. If you are required to register, then your offense is not eligible for an order of non-disclosure. 411.081(e)(1)
  • Can I get a Sentri pass?  The Border Patrol has discretion when making a decision on a Sentri Pass application. An order of non-disclosure could be the difference between having your request accepted or denied.
  • Can I vote after the non-disclosure?  Voting rights are restored to felons convicted in Texas once a person is fully discharged from the felony sentence, including any term of incarceration, parole, or supervision, or completes a period of probation ordered by any court.
  • Will an order of non-disclosure help with immigration?  Getting an analysis tailored to your specific situation is imperative because everyone’s case is different. To find out if your criminal case will impact your immigration status or if getting an order of non-disclosure will assist with your immigration case, you should discuss your situation with a qualified immigration attorney.
  • Will an order of non-disclosure restore my right to own a firearm?  Since cases where deferred adjudication is successfully completed are not considered convictions, an order of non-disclosure would not affect your firearm rights as this case would not be prohibitive. However, there is a lifetime ban under federal law (Lautenberg Amendment to the Violence Against Women Act), which prohibits firearm ownership of those convicted of misdemeanor domestic violence. Nondisclosure in Texas would not lift the federal prohibition.
  • Who may serve on a jury in Texas?  In Texas, you may serve on a jury if you: 1) are a resident of the United States and a resident of the county by which you are summoned, 2) are at least eighteen years of age, 3) are able to read and write, 4) are of sound mind.You may not serve on a jury if you: 1) have been convicted of a felony for any type of theft, unless your rights have been restored to you, 2) are currently on probation or deferred adjudication for any type of theft on a felony level, 3) are currently under indictment for a felony or are currently charged with any type of theft.

Seeking Employment After an Order of Non-Disclosure

  • Can I become a schoolteacher, nurse, or other occupation after getting my record sealed?  You are able to deny the arrest and court case after it has been sealed with an order of nondisclosure; however, certain non-criminal justice agencies can still view the record. For instance, some school districts can still view the records. Although the record may still be viewable by certain agencies, the agency will also see that a judge granted an order of nondisclosure, which displays your reform and looks better than just having the record of deferred adjudication.
  • What if I want to work in a bank?  Section 19 of the FDIA (Federal Deposit Insurance Act) allows banks and other financial institutions to bar prospective and current employees who have had “Breach of Trust” or “Dishonesty” convictions from jobs that they are otherwise qualified for even if they had the conviction expunged.If you believe you have a “breach of trust” or “dishonesty” conviction and were denied a position or were terminated from a financial institution because of that offense, there may be another way to obtain that job, which is with a waiver from the FDIC. It is important to speak with an attorney about your specific circumstances to see if you would qualify for a waiver.

Updating of Records and Background Checks After Non-Disclosure

  • Will my record still show up on my background check after I obtain an order of non-disclosure (record sealing) in Texas?  No. The law prohibits the release, maintenance, dissemination, or use of the expunged records and files to the public. § 411.081(g-2) and (g-3)
  • Are there any instances when criminal justice agencies can still disclose my criminal history records?  A criminal justice agency may disclose the records to other criminal justice agencies for criminal justice or regulatory licensing purposes or to the following non-criminal justice agencies:
  •  State Board for Educator Certification
  • School district, charter school, private school, commercial transportation company, or education shared service arrangement
  • Texas State Board of Medical Examiners
  • Texas School of the Blind and Visually Impaired
  • 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
  • Texas Private Security Board
  • Municipal of Volunteer Fire Department
  • Board of Nurse Examiners 411.081(i)
  • Safe house providing shelter to children
  • Public or Nonprofit Hospital
  • Texas Juvenile Probation Commission
  • Securities Commissioner, banking commissioner, 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
  • How do the agencies know the order was granted?  Once the judge signs the granted order of nondisclosure, the court sends the order to the Texas Department of Public Safety. The Department of Public Safety then sends the order to all the agencies with records of the arrest or case. 411.081(g)
  • How long do records take to be updated?  The court updates the court records within 48 hours and the Texas Department of Public Safety and agencies typically take 30 to 60 days to update their records.
  • Will an order of non-disclosure clean up my driving record?  No. Driving records are not affected by the order of nondisclosure. However, driving records fall off your records after a certain period of time unlike your criminal records, which are for life unless you have them cleared.

Remember, every case is different. The information provided herein is only general information, and should not be construed as specific legal advice of any kind. In addition, this information should not be construed as a substitution of legal counsel from a competent criminal defense attorney in your specific jurisdiction. Finally, while all inquiries are protected by the Attorney-Client privilege, and thus completely confidential, nothing herein constitutes the establishment of an attorney-client relationship.

Please feel free to contact us if you have specific questions or comments about a case in which you are involved.

ROSS LAW OFFICES, PC

Denton County Defense Attorney

940-230-2400

http://www.rossfirm.net/