Deferred adjudication is a viable option in many criminal cases because it offers the defendant a guaranteed dismissal upon completion of court-ordered terms similar to community supervision. While successful completion of deferred adjudication ultimately dismisses the case, it leaves a long publicly available paper trail that cannot be expunged which is almost as damaging as an actual conviction. A defendant can, however, have their record sealed through what is known as an order of non-disclosure.
Under section 411.081 of the Texas Government Code, defendants who successfully complete deferred adjudication are given the ability to petition the court and ask the judge to order that all records related to the dismissed charge are sealed from public view. This effectively limits access to a defendant's arrest and prosecution records to all except for government entities.
Who Cannot have a case sealed?
While this is a great tool, not all charges are eligible for non-disclosure. The following charges are never eligible for a non-disclosure:
· Aggravated and Regular Sexual Assault
· Indecency with a Child
· Prohibited Sexual Conduct
· Aggravated Kidnapping
· Burglary of Habitation with intent to commit the above-listed offenses
· Compelling Prostitution
· Sexual Performance of a Child
· Child Pornography charges
· Unlawful Restraint, Kidnapping, or Aggravated Kidnapping of a person younger than 17 years old
· attempt, conspiracy, or solicitation to commit any of the above-listed offenses
· Capital Murder or Murder
· Injury to a Child, Elderly or Disabled person
· Abandoning or Endangering a Child
· Violation of a Protective Order
· Family Violence
A defendant who completes deferred adjudication must also stay out of trouble for a duration of time after their case was discharged. That is, if a defendant is convicted or placed on deferred adjudication for any offense other than a traffic offense in less than 2 years (if their discharged offense was a misdemeanor), or 5 years (if their discharged offense was a felony not mentioned above), they preclude themselves from having the first charge sealed off of their record. Note: the time frame mentioned above does not apply to all misdemeanors.
Duration before a non-disclosure can be filed
In the case of felonies, a petition for non-disclosure cannot be filed within five years from completion of probation; not the date the defendant plead. Similarly many misdemeanors require a two year waiting period before they are subject to an order of non-disclosure. Some misdemeanors are eligible for an order of non-disclosure immediately after the defendant is discharged from probation.
Who can still see an offense that was sealed through a non-disclosure?
A non-disclosure seals case records from the public view, but it does not seal it from government entities. This means that law enforcement agencies, licensing agencies, and similar government-related entities still have access. Among them are agencies that deal with children such as school districts .
Note: Sometimes public background check services will show records that have been expunged or non-disclosed due to shoddy recordkeeping practices and slow update cycles by reporting agencies. If you have had a criminal case expunged or non-disclosed and your information is still being made available to the public, contact an attorney to discuss what can be done civilly to remove the claims.
The Law Office of Matthew Ryan Montes petitions for non-disclosures in all major metropolitan areas in Texas, and other smaller counties by request. Feel free to contact Mr. Montes for a free consultation through his avvo.com profile