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Clearing Your Criminal Record in Texas: Expunctions and Nondisclosures

Convictions can last a lifetime. In Texas, criminal records can sometimes follow a person even when criminal charges never resulted in a conviction, which undeniably impacts that person’s life. For example, applicants face intense competition when seeking a desirable job or an invitation to attend college or graduate school. At the same time, the people who review these applications can access a large amount of supplemental information online if they have to make a close call. Employers have found one quick way to justifiably deny a person’s application by using a broad (and sometimes unfair) question about a person’s criminal background.

Take a moment to imagine Candidate A and Candidate B, who both have identical credentials and nailed their respective interviews. But let’s say some youthful transgressions by Candidate B led to an arrest for underage drinking while wearing a ridiculous outfit.

Bunny Costume (before)

General rule: cops don’t think bunny costumes are funny

If Candidate B has not taken advantage of his rights under Texas law to clear all records of his arrest, then a potential employer might find the damning mugshot even if the case was dismissed. Want to know how easy it is to find mugshots? Search one of the mugshot websites that get paid to collect and publish pictures of arrestees for profit without regard to the final outcome of the case.

Thankfully, Texas law allows people who meet certain criteria to move on from past mistakes through expunction and orders of nondisclosure. These remedies allow people to move forward with their lives after being wrongfully arrested or after successfully completing a deferred adjudication program.

Ways to Clear Your Texas Criminal Record

The two most important avenues to clearing a criminal record are expunctions and orders of nondisclosure. Both allow you to deny that you’ve been arrested for the expunged or nondisclosed offense under most circumstances.

Generally speaking, expunctions are for charges that have been dismissed without any community supervision (aka probation) while orders of nondisclosure are for charges dismissed after deferred adjudication community supervision.

Sealing vs. Destroying a Criminal Record

One big difference between the two is that expunctions require destruction of the records, while an order of nondisclosure essentially seals the records from discovery by most private agencies. So if you qualify for an expunction, that is the best route to choose because many government and licensing agencies are still allowed to view sealed records. Therefore, it may be wise to disclose offenses subject to an order of nondisclosure on applications for government jobs, licensing agencies, or higher education.

Many questions are ambiguous or overly broad, so consult an attorney when it is unclear how much you should disclose on an application or during an interview.

Job Applications: If Arrested, Please Crumple Immediately

Note that it is always best to talk with an attorney rather than attempting to file for an expunction or order of nondisclosure yourself for several reasons. Perhaps most importantly, Texas expunction and nondisclosure law changes often and is much more complicated than the broad overview in this post. You’ll want to speak with a lawyer who handles these types of cases because you only get one opportunity in court to qualify.

The qualifications for an expunction and an order of nondisclosure are different, so let’s take a look at each separately.

Expunction: Erasing Criminal Records in Texas

Chapter 55 of the Texas Code of Criminal Procedure contains most of the provisions for expunction, but others can be found in certain sections of the Family Code or specific provisions of the Texas Penal Code. Here is a short list of potential criminal record expunctions if a person meets certain qualifications:

  • Arrests for charges that result in “Not Guilty” verdicts
  • Arrests for crimes that were never charged
  • Criminal charges that were ultimately dismissed
  • Conviction of certain alcohol offenses by minors
  • Conviction of Failure to Attend School
  • Certain qualifying juvenile misdemeanor offenses
  • Arrests, charges, or convictions on someone’s record due to identity theft
  • Convictions that are later overturned by appellate courts
  • Convictions pardoned by the Governor or U.S. President

Note that each bullet point above has different qualifications for expunction eligibility, and certain cases may be completely disqualified from expunction. For example, the most common disqualification is when a person was arrested for one charge but was convicted of a lesser included offense. A conviction arising out of the same arrest could disqualify that person from expunging the arrest records. Chapter 55 expunctions also require that the court did not order community supervision or deferred adjudication for the offense, unless the offense is a Class C misdemeanor.

Sometimes expunctions are mandatory under the law, but others are subject to a judge’s discretion. However, if the court determines that a person qualifies for expunction, then the court will order that all criminal records for the arrest be destroyed. Article 55.03(2) of the Texas Code of Criminal Procedure states that after the order of expunction is final, “the person arrested may deny the occurrence of the arrest and the existence of the expunction order.” So if you were arrested for public intoxication but got the arrest expunged, you can legally deny that you were ever arrested for public intoxication.

To enforce expunctions, the statute creates criminal penalties for intentionally disregarding an expunction order by either failing to destroy the records or by releasing or disseminating expunged records. In other words, if they hold on to those records or distribute them after expunction, they can be charged with a crime. Nice to have the roles reversed, isn’t it? Next, let’s take a look at another way to clear Texas criminal records.

Order of Nondisclosure: Sealing Criminal Records in Texas

Even if a person can’t meet the strict expunction requirements, they may still qualify for an order of nondisclosure. Nondisclosure orders place strict limits on the disclosure of criminal records by criminal justice agencies. In other words, the records are not destroyed like an expunction, but private entities (like your future boss, your girlfriend’s dad, etc.) generally will not be able to see the arrest records. Here is a simplified formula for nondisclosure:

Successful Deferred Adjudication + Waiting Period + No Disqualifying Criminal History + “Best Interest of Justice” = Nondisclosure

Section 411.081 of the Texas Government Code lists the eligibility requirements for orders of nondisclosure. To put it simply, a person must have successfully completed a deferred adjudication program on a qualifying crime. The following must occur for a person to be eligible for an order of nondisclosure:

  1. A person must plead guilty or nolo contendere to a qualifying misdemeanor or felony;
    • Certain crimes are ineligible for orders of nondisclosure even if a person completed a deferred adjudication program and had the charge dismissed. Section 411.081(e) lists certain crimes that are ineligible for orders of nondisclosure. Some examples include crimes of family violence and offenses that require registration as a sex offender.
  2. The judge must defer adjudication and sentence the person to community supervision (aka probation) without adjudicating guilt;
    • There is a distinction between “straight” probation and “deferred” probation. Straight probation is a sentence that keeps a person out of jail as long as they complete a laundry list of requirements in a plea bargain. Deferred probation does the same thing but adds the benefit of a possible order of nondisclosure.
  3. The person must successfully complete the deferred adjudication requirements; and
    • This means compliance with all requirements for a certain time period. Generally, more serious crimes carry longer sentences of probation, more requirements from the court, and stricter sentences if a person fails to complete the program.
  4. The judge must dismiss the proceedings and discharge the person from community supervision.

There may be a waiting period after discharge from community supervision depending on the type of crime:

  • Felonies: 5 years
  • For misdemeanors under certain chapters: 2 years
    • These include misdemeanors under Texas Penal Code Chapters 20 (kidnapping, unlawful restraint), 21 (sexual offenses), 22 (assaultive offenses), 25 (offenses against the family), 42 (disorderly conduct and related offenses), and 46 (weapons)
  • For all other misdemeanors: No waiting period

But sometimes other criminal history can disqualify a person from an order of nondisclosure. Here are some examples that will disqualify a person from an order of nondisclosure:

  • Convictions or deferred adjudications for another offense during the period of community supervision or during the applicable waiting period described above;
    • Note: this does not include offenses in the Transportation Code punishable by fine only, like a speeding ticket.
  • If there are any convictions or deferred adjudications for the following crimes, a person is ineligible for an order of nondisclosure:
    • Offenses that require registration as a sex offender;
    • Offenses involving family violence;
    • Offenses under any of these sections of the Texas Penal Code: 19.02 (murder) 19.03 (capital murder); 20.04 (aggravated kidnapping); 22.04 (injury to child, elderly, or disabled); 22.041 (abandoning/endangering child); 25.07 (violating certain court orders); 25.072 (repeated violations of certain court orders); or 42.072 (stalking).

Lastly, the judge must find that issuing an order of nondisclosure would be “in the best interest of justice.” This element allows a judge wide discretion to grant or deny the order, and this wide latitude can be dangerous to an otherwise qualified candidate. Therefore, even if you complete your deferred adjudication and get the charge dismissed, it is probably a bad idea to flip off the judge and probation officer on your way out of the courtroom.

Remember: If you are a criminal defendant, showing politeness and respect to all players in the criminal justice system will almost always help your case. Let your attorney do the fighting.

If the judge finds that all these elements have been proven, he or she will grant the order of nondisclosure, which commands the DPS and other agencies to seal records to everyone except criminal justice agencies and the following entities (as of September 1, 2014):

(1) the State Board for Educator Certification; (2) a school district, charter school, private school, regional education service center, commercial transportation company, or education shared service arrangement; (3) the Texas Medical Board; (4)    the Texas School for the Blind and Visually Impaired; (5) the Board of Law Examiners; (6) the State Bar of Texas; (7) a district court regarding a petition for name change under Subchapter B, Chapter 45, Family Code; (8) the Texas School for the Deaf; (9) the Department of Family and Protective Services; (10) the Texas Juvenile Justice Department; (11) the Department of Assistive and Rehabilitative Services; (12) the 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; (13) the Texas Private Security Board; (14) a municipal or volunteer fire department; (15) the Texas Board of Nursing; (16) a safe house providing shelter to children in harmful situations; (17) a public or nonprofit hospital or hospital district; (18) the securities commissioner, the banking commissioner, the savings and mortgage lending commissioner, the consumer credit commissioner, or the credit union commissioner; (19) the Texas State Board of Public Accountancy; (20) the Texas Department of Licensing and Regulation; (21) the Health and Human Services Commission; (22) the Department of Aging and Disability Services; (23) the Texas Education Agency; (24) the Judicial Branch Certification Commission; (25) a county clerk’s office in relation to a proceeding for the appointment of a guardian under Chapter XIII, Texas Probate Code; (26) the Department of Information Resources but only regarding an employee, applicant for employment, contractor, subcontractor, intern, or volunteer who provides network security services under Chapter 2059 to: (A) the Department of Information Resources; or (B) a contractor or subcontractor of the Department of Information Resources; (27) the Texas Department of Insurance; and (28) the Teacher Retirement System of Texas.

Once the order of nondisclosure is final, a person “may deny the occurrence of the arrest and prosecution to which the information relates.” However, it should again be noted that the wiser option would be to disclose an arrest on certain applications if requested because they may still be able to view the information as one of the authorized entities above. Also like expunction law in Texas, there are criminal penalties when someone knowingly violates a court’s order by disclosing protected information to unauthorized entities.

If you need a Texas expunction and nondisclosure attorney, contact attorney Bryan E. Wilson at 817-454-5965 and get the Texas Law Hawk on your side today.

Texas DWI Law and Defenses

New Trick to Beat a Texas DWI?

After Getting Pulled Over for DWI in Texas, Will Chugging Liquor Help Your Case?

When it comes to beating a DWI charge, a wide variety of untested strategies float around internet forums awaiting suggestible readers. An older example is the “stuff your mouth with pennies” trick, which would supposedly beat a breathalyzer every time. Another is masking the odor of alcohol with mustard packets, which Ludacris recommends you keep in your car at all times.

But the newest “DWI-Hack” involves chugging liquor after getting pulled over and has gained some traction recently. The scenario I’m given usually goes like this:

What would happen if a drunk person got pulled over, jumped out of the parked car with an unopened bottle of their favorite liquor, opened it in front of the officer, and chugged as much as they could before the cop stops them? If they drink enough of it quickly, then there’s no way the cops can prove that person was intoxicated while driving, right?!

Chugging Liquor During Texas DWI Stop

Chugging liquor after being stopped for a Texas DWI: an infinitely stupid idea.

I always ask them if they want the short answer or the long answer. Here’s the short answer to the “liquor chugging” question above: chugging liquor in front of cops is always a bad idea. Below is the expanded answer, which (1) discusses why the scenario above presents a number of interesting issues in criminal law; and (2) offers some ways to give yourself a stronger chance in court after a DWI arrest. Spoiler alert: they don’t involve guzzling booze in front of police.

The Burden of Proof and Elements of DWI.

Here’s why the scenario above presents (at least a theoretical) challenge to the prosecutor on proving all the elements of Driving While Intoxicated. In every criminal trial, the prosecutor must prove every single element of the charged offense beyond a reasonable doubt. Section 49.04 of the Texas Penal Code lists the elements of DWI that the prosecutor must prove beyond all reasonable doubt. The prosecutor must offer sufficient evidence to show that, on or about a certain date, a person:

  1. Was intoxicated
  2. While operating
  3. A motor vehicle
  4. In a public place.

If the prosecution fails to prove any one of the elements above, then the jury or judge must acquit the defendant of the charge.

I will briefly discuss elements 1, 3, and 4 before discussing the focus of this post, which surprisingly is element 2. First, the “intoxicated” element requires the prosecutor to prove that (1) the defendant had a blood alcohol content of .08 or greater; or (2) the defendant did not have “the normal use of mental or physical faculties” because of alcohol, drugs, or a combination of any substances. This element is very important for most cases, so I’ll save the detailed discussion of the “intoxicated” element for another post. Remember: a BAC of .08 or higher is not always necessary to be convicted of DWI. The statute allows a conviction to stand on drugs alone—even legally obtained prescription drugs. Therefore, it may not be a good idea to list off a plethora of (or any) medications you are currently taking.

Remember: you have the right to remain silent even if you’re not under arrest. Check out another one of my posts if you want to learn about your constitutional rights when interacting with police. Now let’s look at the “while operating” element in greater detail.

Chad Bradley’s DWI Life-Hack: Chug Fireball Whiskey!

For the remainder of this post, we’ll assume that the person in the liquor-guzzling hypothetical above is Chad Bradley, who was driving down West 7th Street in Fort Worth (a “public place” under § 49.04) in his 1999 Geo Metro (a “motor vehicle” under § 49.04). On the way home from Chummy’s last Friday, Chad rolled through a stop sign and a few seconds later saw those heart-stopping blue and red lights flash in his rear-view mirror. He had several drinks shortly before leaving the bar but wasn’t sure if he was intoxicated at that point. After pulling over, Chad turned off his car and looked down at the unopened bottle of Fireball Whiskey that he kept in his car for party-related emergencies.

Don't chug liquor after being stopped for DWI

Chugging liquor after being pulled over: a way to guarantee things will go badly.

Chad remembered reading a post from an online forum that discussed a secret way to beat a potential DWI conviction: after pulling over, crack open a bottle of liquor and chug it like it’s going out of style. With his bottle of Fireball staring back at him from the passenger seat, Chad was ready to become a legend. As the officer approached, Chad calmly exited his Geo, winked at the officer, and guzzled down almost half of the bottle. Feeling cocky, Chad said “Good luck proving how many margaritas I had after that, sucker!”

Let’s examine the good and bad facts, starting with the good facts. By drinking liquor after he had operated the car, Chad created, in theory, a small problem for his prosecution on proving that he was intoxicated “while operating” the motor vehicle. There’s no doubt he’ll be drunk in a few minutes, but how can a prosecutor prove that Chad was intoxicated while operating the car? 

On these limited facts, Chad might argue that the prosecutor can’t prove that he was intoxicated while operating his Geo Metro. In other words, there might be a reasonable doubt as to whether he was drunk while driving or just really drunk after he had pulled over, parked, and turned up a bottle of cinnamon whiskey. He could argue that he’s only guilty of a Public Intoxication charge after the stop but certainly not a DWI. Remember: the burden of proof always remains on the prosecutor to prove every single element of a criminal offense beyond a reasonable doubt. Chad also might argue that the arresting officer only observed indications of intoxication due to the liquor he had quickly consumed after the operation of the Geo Metro was already completed, thereby requiring dismissal of the DWI charge or an acquittal at trial. Armed with this great theoretical argument, Chad is in the clear, right?

Wrong! Let’s look at the bad facts. First of all, Chad got out of the car, winked at the officer, and then chugged liquor. Disrespecting police officers never helps a person’s case, even if the officer is being a jerk. Chad clearly has not seen Chris Rock’s video “How to Not Get Your Ass Kicked by the Police”:

 

 

In the video, Chris Rock shows many ways to not get beat up by the police, but all of them emphasize being polite to cops and using your common sense. Even if the officers aren’t offended, they will definitely not forget Chad for his stunt. Being memorable during an arrest is never a good thing on a DWI case.

The officers might have an easier time getting a blood warrant on these facts, and his BAC would be through the roof after knocking back half a bottle of Fireball. Even if they don’t get Chad’s BAC, the prosecutors could still argue that Chad was not in control of his mental or physical faculties since he did something so ridiculous under the circumstances.

More importantly, Chad’s statements can be used against him, and a prosecutor may argue that Chad admitted consuming multiple margaritas, which is damaging evidence at trial. Additionally, if Chad’s case does go to trial, a jury may be offended by his behavior, especially because they might view it as a waste of their time since no sober person (with good sense) would do something like that.

Lastly, we all know Chad can’t handle his liquor when he drinks Fireball, so all of his exponentially inebriated behaviors afterwards will be filmed, which results in more damaging evidence. In sum, Chad’s Fireball guzzling stunt would create an entertaining arrest video but probably would not help his case. If you must chug cinnamon-flavored whiskey, do it in the safety of your home where your friends can film you (instead of the police).

Nic Butts making a bottle of Fireball disappear

What To Do After You’ve Been Pulled Over Instead of Chugging Liquor

Regardless of why you’ve been stopped, pull over quickly and safely, and turn off the car. Put the keys on your dashboard, turn on your interior lights, and put your hands on the steering wheel while you wait for the officer to approach. Hidden hands alarm police officers during traffic stops. Wait for the officer to ask for your license and insurance before moving your hands from the steering wheel. If asked, “Do you know why I pulled you over?” you shouldn’t offer guesses on why the officer pulled you over.

Remember: you are being filmed and recorded in almost all interactions with police. Don’t obstruct, resist, argue, beg, or verbally abuse cops, even if you think they deserve it. A jury may see the video, and it’s much harder for them to get on the bandwagon of a jerk. Let your attorney fight for you in court. Remember: the right to remain silent is a legal right. You have to tell the officer your name, DOB, and address, but if asked any questions about drinking, you should ask if you are free to leave. If the officer says no, you should ask for an attorney before answering any more questions and remain silent after. Telling a cop what bar you came from and how many drinks you had are detrimental pieces of evidence at trial.

Officers might ask you to perform several field sobriety tests, such as the Horizontal Gaze Nystagmus test (eyes-following-the-pen test), the Walk-and-Turn test, and the One-Leg Stand test. If you’ve been drinking to intoxication and get pulled over, respectfully refuse to perform all field sobriety tests. Also, don’t give officers a breath test or consent to any blood tests. Politely request to speak with an attorney before answering any questions or performing any tests. Refusing sobriety tests will probably result in your arrest and your license getting suspended; refusals can also can be used as evidence against you. These are some of the risks you must recognize when deciding on refusal. Even so, these tests are designed to make intoxicated people fail, so attempting them while intoxicated probably won’t be beneficial to your case. Lastly, do not consent to any search—even if you have nothing to hide.

If you’ve been arrested for DWI or other intoxication crimes, you need an attorney who is ready and willing to fight for you. Call Fort Worth Attorney Bryan E. Wilson at 817-454-5965 and get the Texas Law Hawk on your side today.