NONDISCLOSURE

IMPORTANCE OF A NONDISCLOSURE

 

If you pled guilty to a crime and you were placed on deferred adjudication for a felony or a misdemeanor, in most cases your record can be sealed if you completed your community supervision. Additionally, the law has recently changed to allow people with a misdemeanor conviction or straight probation for certain misdemeanors, including a conviction or straight probation for driving while intoxicated, to petition for nondisclosure. Your record will not automatically go away upon successful completion of deferred adjudication or after a certain amount of time has passed. A nondisclosure order is required in order to seal your record.

 

EFFECT OF A NONDISCLOSURE

After sealing your record you will not be required to disclose that offense on an application for employment or licensing, and you may deny the arrest and prosecution of the offense (except in certain criminal proceedings).

 

ELIGIBILITY FOR NONDISCLOSURE

Mandatory Order of Nondisclosure – Nonviolent Misdemeanor

An order of nondisclosure shall be issued if the person:

  1. Was placed on deferred-adjudication community supervision for a misdemeanor that is not an offense under the following chapters of the Texas Penal Code:

    • a. Chapter 20 [kidnapping, unlawful restraint & smuggling of persons],

    • b. Chapter 21 [sexual offenses],

    • c. Chapter 22 [assaultive offenses],

    • d. Chapter 25 [offenses against the family],

    • e. Chapter 42 [disorderly conduct & related offenses],

    • f. Chapter 43 [public indecency],

    • g. Chapter 46 [weapons],

    • h. Chapter 71 [organized crime], or

    • i. For which an affirmative finding was not entered under Texas Code Criminal Procedure art. 42A.105(f) or former art. 42.12,§ 5(k)[note: a person who is not eligible for an order of nondisclosure under Texas Government Code § 411.074 solely because an affirmative finding under these statutes was filed in the papers of the case may file a petition for an order of nondisclosure under Texas Government Code § 411.0725 if the person otherwise satisfies the requirements of that section];

  2. Has never been previously convicted of or placed on deferred-adjudication community supervision for another offense other than a traffic offense that is punishable by fine only;

  3. Has received a discharge and dismissal under Texas Code of Criminal Procedure art. 42A.111 and satisfies the requirements of Texas Government Code § 411.074; and

  4. Presents evidence of eligibility for nondisclosure and pays the required fee.

Date for Issuing Order of Nondisclosure

 

  1. When the court discharges and dismisses the proceedings against the proceedings against the person, if the discharge and dismissal occurs on or after the 180th day after the date the court placed the person on deferred-adjudication community supervision; or

  2. As soon as practicable on or after the 180th day after the date the court placed the person on deferred-adjudication community supervision, if the discharge and dismissal occurred before that date.

Petition for Order of Nondisclosure — Certain Felonies and Misdemeanors

 

An order of no disclosure shall be issued if the order is in the best interest of justice and the person:

 

  1. Is ineligible for an order of no disclosure under Govt § 411.072;

  2. Has been placed on deferred-adjudication community supervision;

  3. Receives a discharge and dismissal; and

  4. Satisfies the requirements of Govt § 411.074.

Date for Filing Petition for Nondisclosure

 

Misdemeanor: Anytime on or after discharge and dismissal. However if the individual was placed on deferred adjudication under the following chapters of the Texas Penal Code, they will have to wait to anytime on or after the second anniversary of their discharge and dismissal:

 

  • (a) Chapter 20 [kidnapping, unlawful restraint & smuggling of persons],

  • (b) Chapter 21 [sexual offenses],

  • (c) Chapter 22 [ assaultive offenses],

  • (d) Chapter 25 [offenses against the family],

  • (e) Chapter 42 [disorderly conduct and related offenses],

  • (f) Chapter 43 [public indecency], or

  • (g) Chapter 46 [weapons].

Felony: Anytime on or after the fifth anniversary of discharge and dismissal.

Petition for Order of Nondisclosure — Following Completion of Veterans Treatment Court Program

 

An order of nondisclosure shall be issued if the order is in the best interest of justice and:

 

  1. The person successfully completes a veterans treatment court program under Govt ch. 124 or former law;

  2. The person satisfies the requirements of Govt § 411.074;

  3. Th person has never been previously convicted of an offense under CCP art. 42.054(a) or a sexually violent offense under CCP art. 62.001;

  4. The person is not convicted of any felony offenses between the date the person successfully completes the program and the second anniversary of that date; and

  5. The person’s entry into the program did not arise from a conviction for an offense involving operation of a motor vehicle while intoxicated.

Date for Filing Petition for Nondisclosure Upon Completion of Veterans Treatment Court Program: on or after the second anniversary of the date the person successfully completed the program.

Petition for Order of Nondisclosure — Prostitution Resulting from Human Trafficking

 

An order of nondisclosure shall be issued if the order is in the best interest of justice and the person:

 

  1. Is placed on community supervision under CCP ch. 42A for an offense under:

    • a. H&SC § 481.120(b)(1) [delivery of marijuana],

    • b. H&SC § 481.121(b)(1) [possession of marijuana],

    • c. Texas Penal Code §43.02 [prostitution], or

    • d. Class A misdemeanor under Texas Penal Code § 43.03(a)(2)[promotion of prostitution];

  2. Has had the conviction set aside under CCP art 42A.701;

  3. Satisfies conditions for an order of nondisclosure under Govt § 411.074; and

  4. Committed the offense solely because the person was a victim of human trafficking and the person asserts in the petition for nondisclosure that the person has not previously received an order of nondisclosure under Govt § 411.0728.

Date for Filing Petition for Nondisclosure — Prostitution Resulting from Human Trafficking: after the person’s conviction has been set aside.

Petition for Order of Nondisclosure — Following Conviction for Certain Misdemeanors

 

An order of nondisclosure shall be issued if the order is in the best interest of justice and the person:

 

  1. Was placed on community supervision under CCP ch.42A, other than CCP arts. 42A.101-42A.108, 42A.110, 42A.111, regardless of the offense;

  2. Was convicted of a misdemeanor that was not an offense under:

    • a. Alcoholic Beverage Code § 106.041 [driving or operating watercraft under the influence of alcohol by a minor];

    • b. Texas Penal Code § 49.04 [DWI]

    • c. Texas Penal Code § 49.05 [flying while intoxicated],

    • d. Texas Penal Code § 49.06 [boating while intoxicated], or

    • e. Texas Penal Code § 49.065 [assembling or operating amusement ride while intoxicated], or

    • f. Texas Penal Code § 71 [organized crime]; and

  3. Whose community supervision is not revoked and who completes the period of community supervision, including any term of confinement and payment of all fines, costs, and restitution imposed;

  4. Satisfies the requirements of Govt §§ 411.073 and 411.074; and

  5. Has never been previously convicted of or placed on deferred adjudication community supervision for another offense other than a traffic offense that is punishable by fine only.

Date for Filing The Petition for Nondisclosure

 

  1. On or after the second anniversary of the date of completion of the community supervision, if the offenses for which the person was placed on community supervision was a misdemeanor under the following chapters of the Texas Penal Code:

    • a. Chapter 20 [kidnapping, unlawful restraint, and smuggling of persons],

    • b. Chapter 21 [sexual offenses],

    • c. Chapter 22 [assaultive offenses],

    • d. Chapter 25 [offenses against the family],

    • e. Chapter 42 [disorderly conduct and related offenses],

    • f. Chapter 43 [public indecency], or

    • g. Chapter 46 [weapons]; or

  2. If the misdemeanor was not listed above, on or after the completion of the community supervision.

Petition for Order of Nondisclosure — Community Supervision following Conviction for Certain DWI Convictions

 

An order of nondisclosure shall be issued if the order is in the best interest of justice and:

  1. The person was placed on community supervision under CCP ch. 42A for an offense under:

    • a. Texas Penal Code § 49.04, other than under § 49.04(d), or

    • b. A provision of CCP art. 42A, other than arts. 42A.101-42A.108, 42A.110, 42A.111, regardless of confinement for the offense;

  2. The person’s community supervision is not revoked and the person completes the period of community supervision, including any term of confinement and payment of all costs, fines and restitution imposed;

  3. The person satisfies the requirements of Govt §§ 411.0731 and 411.074;

  4. The person has never been previously convicted of or placed on deferred-adjudication community supervision for another offense other than a traffic offense that is punishable by fine only;

  5. The petition for nondisclosure includes evidence that the person is entitled to file the petition; and

  6. The attorney representing the State does not present sufficient evidence demonstrating that the offense resulted in a motor-vehicle accident involving another person, including a passenger in the vehicle operated by the person seeking the order of nondisclosure.

Date for Filing Petition for Nondisclosure

  1. On or after the second anniversary of the date of completion of community supervision, if the person successfully complied with a condition of community supervision that, for a period of not less than 6 months, restricted the person’s operation of a motor vehicle to one equipped with an ignition interlock device; or

  2. On or after the fifth anniversary of the date of completion of community supervision, if the person was not ordered to comply with a condition of community supervision described above.

Petition for Order of Nondisclosure — Following a Conviction for Certain Misdemeanors

 

An order of nondisclosure shall be issued if the order is in the best interest of justice and the person:

 

  1. Is convicted of a misdemeanor under:

    • a. Texas Alcohol and Beverage Code § 106.041 (driving or operating watercraft under the influence of alcohol by a minor],

    • b. Texas Penal Code § 49.04 [DWI],

    • c. Texas Penal Code § 49.05 [flying while intoxicated],

    • d. Texas Penal Code § 49.06 [boating while intoxicated],

    • e. Texas Penal Code § 49.065 [assembling or operating amusement ride while intoxicated], or

    • f. Texas Penal Code Chapter 71 [organized crime];

  2. Is not eligible for an order of nondisclosure of criminal-history-record information under Govt § 411.073;

  3. Completes the person’s sentence, including any term of confinement and payment of all costs, fees, and restitution imposed;

  4. Satisfies the requirements of §§ 411.0735 and 411.074; and

  5. Has never been previously convicted of or placed on deferred-adjudication community supervision for another offense other than a traffic offense that is punishable by fine only.

Date for Filing Petition for Nondisclosure

 

  1. On or after the date the person’s sentence is completed, if the offense was a misdemeanor punishable by fine only; or

  2. On or after the second anniversary of the date of completion of the person’s sentence, if the offense was a misdemeanor other than one punishable by fine only.

Petition for Order of Nondisclosure – Following Conviction for Certain DWI Offenses

 

An order of nondisclosure shall be issued if the order is in the best interest of justice and:

 

  1. The person is convicted of an offense under Texas Penal Code § 49.04 [Driving While Intoxicated] other than an offense punishable under § 49.04(d) [Alcohol Concentration of 0.15 or more making it a Class A misdemeanor];

  2. The person is not eligible for an order of nondisclosure under Govt § 411.0731 [Community Supervision following Conviction for Certain DWI Convictions];

  3. The person has completed the person’s sentence, including any term of confinement and payment of all fines, costs, and restitution imposed;

  4. The person satisfies the requirements of this section and 411.074 [Required Conditions for Receiving an Order of Nondisclosure];

  5. The person has never been previously convicted of or placed on deferred adjudication community supervision for another offense other than a traffic offense that is punishable by fine only;

  6. The petition for nondisclosure includes evidence that the person is entitled to file the petition; and

  7. The attorney representing the State does not present sufficient evidence demonstrating that the offense resulted in a motor-vehicle accident involving another person, including a passenger in the vehicle operated by the person seeking the order of nondisclosure.

Date for Filing Petition for Nondisclosure

  1. On or after the third anniversary of the date of completion of the person’s sentence, if the person successfully complied with a condition of the sentence that, for a period of not less than six months, restricted the person’s operation of a motor vehicle to one equipped with an ignition interlock device; or

  2. If the above does not apply, on or after the fifth anniversary of the date of completion of the person’s sentence.

A person is not eligible for nondisclosure of criminal-history-record information if the person [Tex. Gov’t Code 411.074]:

 

  1. Is convicted of or placed on community supervision, including deferred-adjudication community supervision, for any offense other than a traffic offense, that is punishable by fine only, during
     

    • a. the period after the court pronounced the sentence or placed the person on community supervision, including deferred-adjudication community supervision, for the offense for which the order of nondisclosure is requested; and

    • b. the applicable waiting period after completion of the sentence or community supervision, including deferred-adjudication community supervision; or
       

  2. Requests the order of nondisclosure for, or has been previously convicted of or placed on deferred adjudication community supervision for:
     

    • a. An offense requiring sex offender registration,

    • b. Aggravated Kidnapping, regardless of whether the offense is a reportable conviction or adjudication under chapter 62 of the Texas Code of Criminal Procedure [Sex Offender Registration Program];

    • c. Murder,

    • d. Capital murder,

    • e. Trafficking of persons,

    • f. Continuous trafficking of persons,

    • g. Injury to a child, elderly person, or disabled person,

    • h. Abandoning or endangering child,

    • i. Violation of court orders or conditions of bond in family-violence, child-abuse or neglect, sexual-assault or abuse, stalking, or trafficking cases,

    • j. Stalking,

    • k. Any other offense involving family violence as defined by Texas Family Code § 71.004, or

    • l. The court makes an affirmative finding that the offense for which the order of nondisclosure is requested involved family violence as defined by Texas Family Code § 71.004.

Who still has access to records that have been sealed by a nondisclosure order?

A criminal justice agency may disclose criminal-history-record information that is the subject of an order of nondisclosure to the following noncriminal-justice agencies or entities [Tex. Gov’t Code § 411.9765]:

 

  1. The State Board of 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 Rehabilitation Services

  12. The Department of State Health Services, a local mental health service, a local intellectual and developmental disability authority, or a community center providing services to persons with mental illness or intellectual or developmental disabilities

  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, or a facility as defined by Section 2501.001 Health and Safety Code

  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 appointment of a guardian;

  26. The Department of Information Resources (but only for those who provide network security)

  27. The Texas Department of Insurance

  28. The Texas Retirement System of Texas

  29. The Texas State Board of Pharmacy

  30. The Texas Civil Commitment Office

  31. A bank, savings bank, savings-and-loan association, credit union, or mortgage banker, a subsidiary or affiliate of those entities, or other financial institution regulated by the securities commissioner, the banking commissioner, the savings-and-mortgage-lending commissioner, the consumer-credit commissioner, or the credit-union commissioner, or by a corresponding federal regulatory entity, but only regarding an employee, contractor, subcontractor, intern, or volunteer of or an applicant for employment by that bank, savings bank, savings-and-loan association, credit union, mortgage banker, subsidiary or affiliate, or financial institution

  32. An employer that has a facility that handles or has the capability of handling, transporting, storing processing, manufacturing, or controlling hazardous, explosive, combustible, or flammable materials, if (1) the facility is critical infrastructure, as defined by 42 U.S.C. Section 5195(c)(e), or the employer is required to submit to a risk-management plan under the Federal Clean Air Act Section112(r)(42 U.S.C. Section 7412) for the facility, and (b) the information concerns an employee, applicant for employment, contractor, or subcontractor whose duties involve or will involve the handling, transporting, storing, processing, manufacturing, or controlling of hazardous, explosive, combustible, or flammable materials and whose background is required to be screened under a federal provision described by paragraph (a)
     

 

NONDISCLOSURE PROCESS
 

First, Mrs. Lacayo will prepare a petition for nondisclosure. In some circumstances, a nondisclosure order can be granted without a hearing. However, many judges still require a court appearance. If a hearing is scheduled, Mrs. Lacayo will help you gather character letters and relevant information to personalize you and to help convince the judge that granting the nondisclosure is in the “best interest of justice.” She will prepare you for the hearing and will be there advocating on your behalf. If the Judge grants the petition for nondisclosure the court’s order will be sent to the Department of Public Safety within 15 business days. The Texas Department of Public Safety then has 10 business days to seal any criminal history record information maintained by the Department that is the subject of the order. The department will also send all relevant criminal history record information contained in the order to all law enforcement agencies, jails, or other detention facilities, magistrates, courts, prosecuting attorneys, correctional facilities, central state depositories of records, central federal depositories of criminal records that there is reason to believe have criminal history record information that is the subject of the order, and private entities that purchase criminal history record information from the department or that are likely to have criminal history record information that is subject to the order.
 

 

COST OF SEALING A RECORD

The cost of a nondisclosure typically includes attorney’s fees, plus the filing fee. This cost will vary depending on the county where the petition needs to be filed. If you call Mrs. Lacayo at 713-504-0506 she can tell you the exact amount it will cost to petition for the nondisclosure of your record.
 

 

NONDISCLOSURE V. EXPUNCTION

 

Nondisclosure is not as beneficial as an expunction. An expunction basically erases a criminal record, while a nondisclosure seals your record. Once your record is sealed only certain designated entities can view your record.
 

LACAYO
LAW FIRM, PLLC

The information contained on this site is for general informational purposes only. The information you obtain at this website is not, nor is it intended to be, legal advice. We invite you to contact the Lacayo Law Firm, PLLC at 713-504-0506 to schedule a free initial consultation and case evaluation. Use of this website or submission of an online form, does not create an attorney-client relationship.
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212 Stratford St. | Houston, TX 77006 | 713.504.0506

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