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I was falsely accused of burglary of habitation and given 5 yrs deferred adjudication. My court appointed told me this would go

Houston, TX |

my record only if I failed to complete my probation. I have since found it IS on my record and now cannot get a job or apartment. What can I do?

Attorney Answers 4


If it's been at least five years since you were released from probation, you can request that the court order your records be "nondisclosed" (sealed), which would prevent most people from being able to see them. The records would remain available for law enforcement, courts, and a list of Texas licensing and regulatory agencies, which would usually only affe t you if you have plans to go into a professional field like teaching, law, health care, law enforcement, etc. If those five years aren't up yet, though, I'm afraid there's nothing that can be done--you'll just have to wait it out. Also, nondisclosures are discretionary with the court, meaning you're going to have to go through a hearing where hopefully the judge will end up convinced you deserve to have your records sealed. If the judge isn't convinced, you don't get your nondisclosure, so I would very strongly encourage you to retain an an attorney to handle that for you. Some of the Harris County judges very definitely will turn you down and just refuse to nondisclose your case if they don't like what they hear, and an attorney can help guide you in the right direction so you're more likely to get the result you want. Good luck.

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There are two things here. First, the case does show up on your record but it is not a conviction. If this is your only charge you do not have any convictions. It merely shows that you were charged with the offense and placed on community supervision. Second, if you successfully complete your deferred and wait five years and pick up no new offense you can petition the court to have your records sealed. This will completely take it off your record.

I am not sure why you pled guilty to a case that your were falsely accused of. However, you may consult with an appellate attorney in the area to see if you can appeal your case. However, prosecutors generally do not recommend deferred prosecutions for burglary of a habitation cases. I was a former prosecutor with the Harris County District Attorney's office and I know at one time there was a policy to not offer deferred prosecutions of burglary of a habitation cases without supervisor approval. You got a really good deal. But the choice is yours.

Hope this helps.

Answering this question does not create an attorney-client relationship. Legal advice has not been given. Also, this question and answer is posted on a public forum and therefore any attorney-privilege is waived.

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Others have addressed the question of seeking an order of non-disclosure.

I would add that for many, many, years some form of misadvice about whether a deferred probation went on a defendant's record has been circulating among less well informed attorneys who handle criminal cases. We used to hear of folks who were told that if they completed deferred, the case would "go off your record". Of course, that's plain hogwash...the deferred probation stays on a defendant's record forever, even though as Ms. Foley has noted, the visibility of that record can be limited by a successful application for an order of non-disclosure.

So, can you do anything? May I suggest that you consult a lawyer in your area who handles what are called applications for writ of habeas corpus. That sort of lawyer can discuss with you whether your case can be re-opened.

Answers on Avvo are for general information purposes only and should not be relied upon as legal advice. No attorney / client relationship is created by providing this answer. For specific advice about your situation, you should consult a competent attorney of your choosing.

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A nondisclosure order will only seal your record from private inquiries. It will not seal it from anyone using government background checks. This would include schools, etc., as well as private employers depending on the situation (think about Exxon on the ship channel needing security clearances).

If a nondisclosure order is all you need then great. Otherwise you will have to petition the governor for a pardon (which won't happen) or file an application for relief through habeas corpus. The latter will require a showing of some constitutional violation. A qualified habeas lawyer can evaluate the case for you.

*** The fact that you solicited advice over a public forum waives any attorney-client privilege thus far. In addition, communications over this forum do not create any attorney-client relationship. To have a privileged conversation and/or establish an attorney-client relationship, contact me using the following information: Peyton Z. Peebles III Capitaine, Shellist, Peebles & McAlister, LLP, 713-715-4500 (office) 713-715-4500 (cell)

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