Expunction versus nondisclosure: Do you qualify?
By: Gabriel Vasquez
As a Texas attorney, I often deal with good-hearted people who, at one time or another, had a lapse in their personal judgment and were arrested and faced criminal charges. Unfortunately, these lapses in judgment can negatively affect them in the future when a background check is conducted, particularly when applying for a job or an apartment.
Even an arrest that did not result in a final conviction will still appear on a criminal background check. For many potential employers or apartment managers, the fact that someone was arrested carries a negative stigma.
Your eligibility to clear yourself from this negative stigma depends on several factors – most importantly, how the case was disposed of. Other factors include how much time has passed since the date of arrest, whether the Statute of Limitations has run, prior criminal history and whether charges are still pending.
The best option to clear your criminal record is to petition a court for an Order for Expungement. An Order of Expungement is a remedy found in Chapter 55 in the Code of Criminal Procedure, wherein the court orders that all records including records of the arrest and court documents be completely “erased.” This remedy is only available under limited circumstances, but a successful petition will entitle the person to legally deny the arrest ever occurred.
A person may only apply for an expunction if:
• The person is found not guilty after a trial
• The person is granted a pardon
• The criminal charges were ultimately dismissed
• The Statute of Limitations for charges to be filed has ended
Any case that results in any form of probation, including deferred adjudication probation or a final conviction, cannot be expunged unless a pardon is granted by the governor of Texas.
Another consideration for the eligibility of a petition for expunction is the statutory waiting period that begins from the date of arrest. The waiting periods are 180 days for a Class C Misdemeanor, one year for Class A and B Misdemeanors and three years for felonies.
Another option for clearing your criminal record would apply only to individuals who have successfully completed a deferred adjudicated probation. Deferred adjudicated probation is a form of probation that results in a dismissal of the charge upon successful completion of a probation term. Note that while there will not be a conviction, the record of the arrest will still show up on a criminal background check, thereby creating that negative stigma.
An individual who has successfully completed a deferred adjudicated probation may petition the court for an Order of Nondisclosure. An Order of Nondisclosure, found in Section 411.081 of the Texas Government Code, essentially “seals” the arrest and court documents from the general public and private entities. An Order of Nondisclosure will not seal the existence of the arrest or the deferred adjudicated sentence from law enforcement and government agencies. A few other entities as outlined in the statute will also have access to this information, including state licensing and regulatory agencies, schools and hospitals.
As with the procedure for an expunction, there may be a waiting period; however, for an Order for Nondisclosure, the waiting period begins on the date the individual was discharged from his probation rather than the date of the arrest. For most misdemeanors, there is no waiting period, so the defendant can petition for an Order of Nondisclosure immediately after his deferred adjudication is discharged and his case is dismissed. For some misdemeanors, the waiting period is two years after the date of discharge from probation.
Successfully completing deferred adjudication probation for a felony, the petitioner must wait five years after the date of discharge. Another requisite is that during the “waiting period,” the individual must not have been convicted of or placed on deferred adjudicated probation for a new crime. The statute outlines certain offenses that are not eligible for nondisclosure, so it is important to consult with an attorney.
Even though an individual has followed all of the procedures and qualifies for an Order of Nondisclosure, the judge still has discretion whether or not to grant the Order of Nondisclosure. As with the expungement, in successfully getting an Order of Nondisclosure, the individual may deny the occurrence of the arrest and the subsequent prosecution.
Do not let that negative stigma follow you for the rest of your life it does not have to. Relax and know what to expect when a criminal background check is pulled on you. You should consult with an attorney regarding your personal circumstances to determine if you qualify for expunction or an Order of Nondisclosure.
For more information, contact Gabriel Vasquez at firstname.lastname@example.org or 361-885-7950.