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Houston, TX Nondisclosure Defense Attorney

Clearing Your Criminal Record in Houston, TX

Being convicted of a crime in Texas has its consequences that go beyond the sentence imposed by the court. There are collateral consequences that impact your day-to-day life long after you have paid your debt to society. These include things like difficulty getting a job, custody problems, and being ineligible for mortgage loans.

If you have been convicted of a crime, there are little means to prevent these kinds of collateral consequences but for expunction and/or nondisclosure. In Texas, a law was recently passed to expand the list of criminal records that are eligible for nondisclosure. The recent changes are particular to DWI convictions. So, if you have had a DWI conviction, you may now be eligible to have your record sealed. Getting your record sealed is important if you want to try to return to life as usual.

But you will have to follow the correct procedures in order to be successful. We provide below what you need to know. And if you have further questions, you should always contact an experienced criminal defense attorney. Doug Murphy and his legal team have been helping clients for three decades, using his skill and legal know-how to successfully defend and free clients of the collateral baggage that accompanies a conviction.

What Does it Mean to Seal a Record in Texas?

Sealing a record in Texas is known as nondisclosure. Sealing a record means that the criminal record is held private from the view of the general public, meaning the courts, clerks of the court, law enforcement agencies, and any prosecutor's office cannot disclose your sealed record to any other entity. The record, however, is not deleted or destroyed as it would have been if it was eligible for expunction.

An order of nondisclosure means you do not have to disclose the sealed records or related information about your criminal history on job applications, mortgage loan applications, school applications, or the like.

An order of nondisclosure only applies to specific criminal offenses; an order of nondisclosure does not cover your entire criminal record if you have been convicted of more than one crime. Each conviction must qualify, and you must petition for nondisclosure for each qualifying conviction.

Also, an order of nondisclosure is not an automatic service provided to qualifying individuals and their criminal records. You must file a petition for nondisclosure, and this process can be overwhelming for some.

Who Qualifies for Nondisclosure in Texas?

You qualify for nondisclosure if the crime is eligible for nondisclosure. In Texas, the laws relevant to nondisclosure were amended and expanded in 2017 to include certain driving while intoxicated convictions. With the addition of the latter, the laws that address nondisclosure eligibility can be arranged according to eight different categories or sections of the Texas Government Code. Each section provides the circumstances for eligibility.

You may qualify for nondisclosure according to Texas Government Code, Chapter 411:

  • § 411.072, if you successfully completed deferred adjudication community service for certain non-violent or non-prohibited misdemeanors.
  • § 411.0725, if you successfully completed deferred adjudication community service for certain felonies and misdemeanors and you obtained a discharge or dismissal.
  • § 411.0727, if you successfully completed a Veterans Treatment Court Program.
  • § 411.0728, if you are a victim of trafficking of persons and your conviction of prostitution or related offense was set aside (judicial clemency).
  • § 411.073, if you successfully completed community service or probation following conviction of certain non-prohibited misdemeanors, and you have never been previously convicted of or placed on deferred adjudication community supervision for any other offense.
  • § 411.0731, if you successfully completed community service following conviction of certain driving while intoxicated crimes.
  • § 411.0735, if you were convicted and confined for certain misdemeanors.
  • § 411.0735, if you were convicted and confined for certain driving while intoxicated crimes.

It should be made clear that just because you qualify or are eligible for an order of nondisclosure, that eligibility does not mean you will be granted an order of nondisclosure.

What Criminal Records Do Not Qualify for Orders of Nondisclosure in Texas?

Understanding your eligibility also means understanding what disqualifies you for nondisclosure. Disqualification can be due to the offense you committed, an affirmative finding of the court on family violence, or a second conviction.

According to Texas Government Code § 411.074, if you committed any of the following offenses at any time, whether or not it is a current conviction or a prior conviction, you cannot be eligible for nondisclosure for any other offense—even if unrelated. All that matters for disqualification is that you have been convicted of or were placed on deferred adjudication for any of the following offenses:

You also lose eligibility if the court made an affirmative finding that family violence was associated with the offense for which you seek an order of nondisclosure.

Finally, you lose eligibility if you are convicted, placed on probation, or placed on deferred adjudication for an offense—other than a traffic ticket—during the same time you are either completing probation or awaiting the waiting period to expire so you can petition the court for nondisclosure of another offense.

If the offense or the circumstances do not fall under any of these disqualifying factors, then you may be able to proceed with petitioning the court for nondisclosure. But there are additional disqualifying factors specific to each of the eight categories listed above. An attorney will be able to review your specific circumstances and confirm one way or another if you qualify or not. These rules are complex and intersecting, and it can be easy to miss something.

What Is the Process to Request Nondisclosure in Texas?

For most eligible criminal records, you must file a petition with the court to request nondisclosure. The exception is a request for nondisclosure of an offense that qualifies under § 411.072. This section is often referred to as "automatic" nondisclosure because it requires you to provide evidence that you are eligible for nondisclosure at the time you request the same without having to complete a formal petition and explain why it is in the best interest of justice to grant you an order of nondisclosure.

On the other hand, any and all other requests for nondisclosure must be officially made via a Petition for an Order of Nondisclosure. This petition must be completed according to the law and applicable instructions. Any errors could lead to denial of the request. But a properly completed form is not all that is required. You must be able to convince the court that it is in the best interest of justice that the court grants your Petition for an Order of Nondisclosure.

After you file the petition, the court will set a hearing date and send a Notice of Hearing to all relevant parties. If you hired an attorney, the Notice will be sent to him or her, and he or she will communicate the hearing date to you. At the hearing, any relevant agencies can contest the request and argue why it is not in the best interests of justice to grant nondisclosure.

Documents that you may need, if applicable:

  • A copy of the judgment in your specific case
  • A signed order that the judge in your case reduced the period of your deferred adjudication, probation, or incarceration
  • A signed order that the judge in your case granted an early termination
  • A signed order indicating you completed deferred adjudication, probation, or incarceration
  • A signed order indicating you paid all fines, costs, and restitution
  • A discharge order
  • A discharge and dismissal order.

To note, if you hire an attorney, your attorney will be able to collect any of these or other documents that are relevant according to your specific circumstances.

Some things to keep in mind:

  • Evidence in accordance with § 411.072 or petitions for an order of nondisclosure must be filed with the court that heard the original offense.
  • The court has more discretion to determine if your petition will be granted or not than a judge has when determining if an expunction should be granted or not. Here, justice must be on the side of granting the petition in order for the judge to grant it.
  • Sometimes, if you do not qualify for nondisclosure according to one of the above eight categories, then you may qualify under another category. For instance, many who do not qualify to petition for nondisclosure under § 411.072 may still qualify under § 411.0725.
  • Reminder: If you fail to file under the appropriate section, then your petition can be denied. Thus, if you qualify for nondisclosure under § 411.072 but apply for it under § 411.0725, then the petition could be denied.
  • If the court grants an order of nondisclosure, then it should be no later than 15 business days after the order is issued when the clerk sends a copy of the same order to the Department of Public Safety (DPS). DPS then has 10 business days to (1) seal the criminal history record information in accordance with the order, and (2) forward the order to all state and federal agencies as listed under § 411.075(b).
  • Reminder: An order granting nondisclosure is only specific to the offense subject to the order; it does not apply to your entire criminal record.

Is a Waiting Period Required Before Petitioning the Court for Nondisclosure?

Waiting periods are required before you can file a petition with the court for an order of nondisclosure. Waiting periods correlate with the specific nondisclosure category. The below chart outlines what the waiting periods are.

Section

Category

Waiting Period

§ 411.072

Automatic - Deferred adjudication
for non-violent misdemeanors

180 days from the date of the beginning of community supervision

§ 411.0725

Deferred adjudication for certain
non-prohibited felonies and misdemeanors after dismissal or discharge
  • After discharge and dismissal for most misdemeanors
  • 2 years for non-prohibited misdemeanors under Tex. Pen. Code, Chapters 20, 21, 22, 25, 42, 43, or 46
  • 5 years for felonies

§ 411.0727

Veterans Treatment Court Program

2 years after the date of successful completion of the veterans program

§ 411.0728

Victims of sex trafficking and
convictions set aside

No waiting period after conviction set aside

§ 411.073

Community service or probation
and non-prohibited misdemeanor with a prior conviction
  • No waiting period for most misdemeanors after probation completed
  • 2 years for non-prohibited misdemeanors under Tex. Pen. Code, Chapters 20, 21, 22, 25, 42, 43, or 46

§ 411.0731

DWI probation
  • 2 years from date of probation discharge if an interlock ignition device was required for 6 months or more
  • 5 years from date of probation discharge if an interlock ignition device was not required

§ 411.0735

Conviction and confinement
  • No waiting period after release from confinement if an offense is punishable by fine only
  • 2 years after the release of confinement

§ 411.0736

DWI jail sentence
  • 3 years from date of probation discharge if an interlock ignition device was required for 6 months or more
  • 5 years from date of probation discharge if an interlock ignition device was not required

Who Can Still See Your Criminal Record in Texas After it Has Been Sealed?

As stated already, nondisclosure is not the same as expunction: your records are not destroyed, but disclosure is not permitted under most circumstances.

Your records may be disclosed by a criminal justice agency to any of the following:

  • Criminal justice agencies for the purpose of criminal justice or regulatory licensing;
  • Any of the 32 agencies and entities listed in § 411.0765; or
  • You—as the subject of the order of nondisclosure.

Your criminal history record that is subject to an order of nondisclosure could also be disclosed if federal law requires it for any purpose, like when the federal government is determining allotment of federal highway funds.

What Does the Expansion of Nondisclosures Mean for Some DWI Convictions?

The 2017 bill that amended and expanded the nondisclosure laws is also referred to as the Second Chance Bill because it was this bill that paved the way for persons with certain DWI convictions to have their records sealed. And that matters.

It matters because DWI convictions, even for first-time offenders, can have a serious impact on a person's life, especially that person's professional and academic aspirations. Plus, this bill is also retroactive. So anyone with a DWI conviction before this bill was signed into law in September 2017 may now qualify to have his or her criminal record sealed.

But not all DWI convictions are eligible for nondisclosure. Certain qualifiers must be met, and these include:

  • Your blood alcohol content (BAC) or breath must have been less than 0.15.
  • You must not have caused an accident with another person at the time of your DWI incident.
  • You must have successfully completed probation.
  • You must have paid in full all fines and costs associated with your DWI.
  • You must not have a criminal history apart from traffic offenses.

When your DWI is sealed, it cannot—minus the exceptions noted above—be shared with anyone else, including a potential employer. So, if you are applying for a job that requires a security clearance, even minimum security clearance, you can state on the employment application that you have never been convicted of a crime. A background check will not produce results with the DWI charge. This is important because a DWI can mean the denial of security clearance in many cases. The same holds true for loan applications, school applications, and any other event that may require you to disclose a criminal history.

Contact Our Harris County Nondisclosure Attorney

Because the stakes are high—to be granted an order of nondisclosure—it is all the more important to retain legal representation by an attorney who is experienced and Board Certified in either DWI defense or criminal law. Board Certification confirms understanding and knowledge of the law and an ability to successfully take matters to court. There are only two attorneys in all of Texas with this dual Board Certification distinction, and Doug Murphy is one of them.

Doug Murphy and his team can help make sure that

  • You qualify for nondisclosure;
  • Your petition is filed according to the proper category; and
  • The court understands that it is indeed in the best interests of justice to grant you an order of nondisclosure.

We know that no person is perfect and that mistakes happen. We know that a criminal record can make life difficult. We also know that obtaining an order of nondisclosure for your criminal record, whether it is a DWI conviction or other criminal offense conviction, can help improve the quality of your life in many ways. Contact the Murphy & McKinney Law Firm, P.C. today at 713-229-8333 and get ready for your second chance.

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