Cleaning Up Your Record - JL Carpenter Law

Have you been arrested and now you want to clean up your record? Not every arrest can be removed from someone’s criminal history. There are two tools available to remove a criminal record from someone’s history; expunctions and non-disclosures.

EXPUNCTIONS

If someone is found “Not Guilty” or acquitted at trial, then they are entitled to have the arrest removed from their criminal record through the expunction process.

Expunctions are also available for cases that have been dismissed under SOME circumstances; not all circumstances.

Everything you would ever want to know about expunctions in the State of Texas may be found right here:

https://statutes.capitol.texas.gov/Docs/CR/htm/CR.55.htm

If your case was dismissed because you took a conviction in another case, then you are NOT entitled to an expunction under the current law.

When petitioning for expunction, it is literally filing a civil lawsuit requesting the Court to order all records related to the arrest to be destroyed by the agencies that have those records, especially the agency that reports to the State and National databanks. The filing fee alone is more than $300, plus the cost of serving the various parties. This does not include attorney’s fees.

Once the petition is filed, all parties are served a copy of the petition. Then the parties are given an opportunity to respond or answer the lawsuit. If everyone agrees to the expunction, then the hearing before the Court may be passed and an agreed order of expunction is circulated. After each party signs the Agreed Order, it is submitted for the judge to sign the final order.

It is important to retain a certified copy of the final order because even the expunction case will no longer be available.

Private companies may “buy” criminal databanks before an arrest is expunged. Sometimes folks who have had their case expunged may go to a job interview and the old arrest may come up on a background check. It is legal for the job applicant to deny that arrest if it was legally expunged.

On the other hand, during immigration processes, the Government will request the applicant to reveal any arrests that have been expunged.

Finally, any news media or social media links that refer to the arrest are not subject to the Judge’s Order of Expunction. This is because of the freedom of speech. These entities are allowed to report as they wish. We have been successful in sending the final order of expunction with a professional letter to these entities kindly requesting removal of these stories, but these parties are not under any obligation to do so.

NON-DISCLOSURES

What if you successfully completed a deferred adjudication probation?

If you were placed on a deferred adjudication probation and successfully completed it, then you might be eligible for a “Non-Disclosure.” This tool was created by the Texas Legislature in 2015. The filing fee for a petition of non-disclosure is approximately $300 without attorney’s fees.

A few things to know:

Not every offense is eligible for non-disclosure;
Some offenses that are eligible require a waiting period; and
While this tool removes the arrest from PRIVATE entities like private employers from seeing the arrest record or probation, the Government or any Government agency will always know about it and be able to see it. Here’s an example: real estate agent – the state licensing board would know about the arrest and probation, but a private company like RE/MAX would not be able to see it or know about.

Everything you want to know about Non-Disclosures in Texas can be found here:

SUBCHAPTER E-1. ORDER OF NONDISCLOSURE OF CRIMINAL HISTORY RECORD INFORMATION

Sec. 411.071. DEFINITIONS. In this subchapter, “criminal history record information,” “criminal justice agency,” and “criminal justice purpose” have the meanings assigned by Section 411.082.

Added by Acts 2015, 84th Leg., R.S., Ch. 1279 (S.B. 1902), Sec. 1, eff. September 1, 2015.

Sec. 411.0715. DEFINITION OF DEFERRED ADJUDICATION COMMUNITY SUPERVISION FOR PURPOSE OF RECEIVING ORDER OF NONDISCLOSURE.

For purposes of an order of nondisclosure of criminal history record information under this subchapter, a person is considered to have been placed on deferred adjudication community supervision if, regardless of the statutory authorization:

(1) the person entered a plea of guilty or nolo contendere;

(2) the judge deferred further proceedings without entering an adjudication of guilt and placed the person under the supervision of the court or an officer under the supervision of the court; and

(3) at the end of the period of supervision the judge dismissed the proceedings and discharged the person.

Transferred, redesignated and amended from Government Code, Section 411.081(f) by Acts 2015, 84th Leg., R.S., Ch. 1279 (S.B. 1902), Sec. 2, eff. September 1, 2015.

Sec. 411.0716. APPLICABILITY OF SUBCHAPTER. (a) Except as provided by Subsection (b), this subchapter applies to the issuance of an order of nondisclosure of criminal history record information for an offense committed before, on, or after September 1, 2017.

(b) Section 411.072 applies only to a person described by Subsection (a) of that section who receives a discharge and dismissal under Article 42A.111, Code of Criminal Procedure, on or after September 1, 2017.

Added by Acts 2017, 85th Leg., R.S., Ch. 877 (H.B. 3016), Sec. 1, eff. September 1, 2017.

Sec. 411.072. PROCEDURE FOR DEFERRED ADJUDICATION COMMUNITY SUPERVISION; CERTAIN NONVIOLENT MISDEMEANORS.

(a) This section applies only to a person who:

(1) was placed on deferred adjudication community supervision under Subchapter C, Chapter 42A, Code of Criminal Procedure, for a misdemeanor other than a misdemeanor:

(A) under:

(i) Section 49.04 or 49.06, Penal Code; or

(ii) Chapter 20, 21, 22, 25, 42, 43, 46, or 71, Penal Code; or

(B) with respect to which an affirmative finding under Article 42A.105(f), Code of Criminal Procedure, or former Section 5(k), Article 42.12, Code of Criminal Procedure, was filed in the papers of the case; and

(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.

(b) Notwithstanding any other provision of this subchapter or Subchapter F, if a person described by Subsection (a) receives a discharge and dismissal under Article 42A.111, Code of Criminal Procedure, and satisfies the requirements of Section 411.074, the court that placed the person on deferred adjudication community supervision shall issue an order of nondisclosure of criminal history record information under this subchapter prohibiting criminal justice agencies from disclosing to the public criminal history record information related to the offense giving rise to the deferred adjudication community supervision. The court shall determine whether the person satisfies the requirements of Section 411.074, and if the court makes a finding that the requirements of that section are satisfied, the court shall issue the order of nondisclosure of criminal history record information:

(1) at the time the court discharges and dismisses 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.

(c) The person shall present to the court any evidence necessary to establish that the person is eligible to receive an order of nondisclosure of criminal history record information under this section. The person must pay a $28 fee to the clerk of the court before the court issues the order.

(d) A person who is not eligible to receive an order of nondisclosure of criminal history record information under this section solely because an affirmative finding under Article 42A.105(f), Code of Criminal Procedure, or former Section 5(k), Article 42.12, Code of Criminal Procedure, was filed in the papers of the case may file a petition for an order of nondisclosure of criminal history record information under Section 411.0725 if the person otherwise satisfies the requirements of that section.

Added by Acts 2015, 84th Leg., R.S., Ch. 1279 (S.B. 1902), Sec. 3, eff. September 1, 2015.

Amended by:

Acts 2017, 85th Leg., R.S., Ch. 324 (S.B. 1488), Sec. 23.003, eff. September 1, 2017.

Acts 2017, 85th Leg., R.S., Ch. 877 (H.B. 3016), Sec. 2, eff. September 1, 2017.

Acts 2019, 86th Leg., R.S., Ch. 1298 (H.B. 3582), Sec. 4, eff. September 1, 2019.

Sec. 411.0725. PROCEDURE FOR DEFERRED ADJUDICATION COMMUNITY SUPERVISION; FELONIES AND CERTAIN MISDEMEANORS. (a) This section applies only to a person placed on deferred adjudication community supervision under Subchapter C, Chapter 42A, Code of Criminal Procedure, who:

(1) is not eligible to receive an order of nondisclosure of criminal history record information under Section 411.072; and

(2) was placed on deferred adjudication community supervision for an offense other than an offense under Section 49.04 or 49.06, Penal Code.

(c) Except as provided by Section 411.074, a person may petition the court for an order of nondisclosure under this section regardless of whether the person has been previously convicted of or placed on deferred adjudication community supervision for another offense.

(d) After notice to the state, an opportunity for a hearing, and a determination that the person is entitled to file the petition and issuance of the order is in the best interest of justice, the court shall issue an order prohibiting criminal justice agencies from disclosing to the public criminal history record information related to the offense giving rise to the deferred adjudication community supervision.

(e) A person may petition the court that placed the person on deferred adjudication community supervision for an order of nondisclosure of criminal history record information under this section only on or after:

(1) the discharge and dismissal, if the offense for which the person was placed on deferred adjudication was a misdemeanor other than a misdemeanor described by Subdivision (2);

(2) the second anniversary of the discharge and dismissal, if the offense for which the person was placed on deferred adjudication was a misdemeanor under Chapter 20, 21, 22, 25, 42, 43, or 46, Penal Code; or

(3) the fifth anniversary of the discharge and dismissal, if the offense for which the person was placed on deferred adjudication was a felony.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 770 (H.B. 2299), Sec. 2.40, eff. January 1, 2017.

Acts 2015, 84th Leg., R.S., Ch. 1236 (S.B. 1296), Sec. 9.001, eff. September 1, 2015.

Transferred, redesignated and amended from Government Code, Section 411.081(d) by Acts 2015, 84th Leg., R.S., Ch. 1279 (S.B. 1902), Sec. 4, eff. September 1, 2015.

Amended by:

Acts 2017, 85th Leg., R.S., Ch. 324 (S.B. 1488), Sec. 23.004, eff. September 1, 2017.

Acts 2019, 86th Leg., R.S., Ch. 1298 (H.B. 3582), Sec. 5, eff. September 1, 2019.

Can a DWI probation be Non-Disclosed?

Yes, in some instances a DWI probation may be removed from someone’s PUBLIC record. Some of the terms to be eligible include that the DWI was a Class B offense and there was not an accident at the time of the offense THAT CAUSED PERSONAL INJURY. There is a waiting period for this tool, as well.

Learn more about Non-Disclosures for DWI offenses here:

Sec. 411.0726. PROCEDURE FOR DEFERRED ADJUDICATION COMMUNITY SUPERVISION; CERTAIN DRIVING WHILE INTOXICATED AND BOATING WHILE INTOXICATED MISDEMEANORS. (a) This section applies only to a person who was placed on deferred adjudication community supervision under Subchapter C, Chapter 42A, Code of Criminal Procedure, for a misdemeanor:

(1) under Section 49.04 or 49.06, Penal Code; and

(2) with respect to which no affirmative finding under Article 42A.105(f), Code of Criminal Procedure, was filed in the papers of the case.

(b) Notwithstanding any other provision of this subchapter or Subchapter F, a person may petition the court that placed the person on deferred adjudication community supervision for an order of nondisclosure if the person:

(1) receives a discharge and dismissal under Article 42A.111, Code of Criminal Procedure;

(2) satisfies the requirements of Section 411.074; and

(3) 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.

(c) A petition for an order of nondisclosure of criminal history record information filed under this section must include evidence that the person is entitled to file the petition.

(d) Except as provided by Subsection (e), after notice to the state, an opportunity for a hearing, and a determination that the person is entitled to file the petition and issuance of an order of nondisclosure of criminal history record information is in the best interest of justice, the court shall issue an order prohibiting criminal justice agencies from disclosing to the public criminal history record information related to the offense giving rise to the deferred adjudication community supervision.

(e) A court may not issue an order of nondisclosure of criminal history record information under this section if the attorney representing the state presents evidence sufficient to the court demonstrating that the commission of the offense for which the order is sought resulted in a motor vehicle accident involving another person, including a passenger in a motor vehicle operated by the person seeking the order of nondisclosure.

(f) A person may petition the court that placed the person on deferred adjudication community supervision for an order of nondisclosure of criminal history record information under this section only on or after the second anniversary of the date of completion of the deferred adjudication community supervision and the discharge and dismissal of the case.

Added by Acts 2019, 86th Leg., R.S., Ch. 1298 (H.B. 3582), Sec. 6, eff. September 1, 2019.

Two important takeaways:

It is important to hire a CRIMINAL lawyer for your underlying case. Someone who knows the law and can set you up to have the matter removed from your record later; and
Before spending the money to file for either an expunction or a non-disclosure, make sure the attorney you hire understands this area of the law and knows all the exceptions. Nothing is worse than to learn that a client paid for an expunction or non-disclosure just to find out that they were never eligible for it in the first place.

If you want to clean up your criminal record, call us so we may see if you are eligible using one of these two tools.

If you go to jail, Call J.L.!

713.201.6767