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.
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.
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:
- 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.
- 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.
- 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.
- 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.