Monday, September 15, 2008

Deferred Adjudication and Non-Disclosure Unraveled

Many people have heard of deferred adjudication. Deferred adjudication typically occurs by way of a plea bargain when the accused person pleads guilty to an offense, but the judge "defers" a finding of guilt while the person is on probation. Assuming the person complies with the terms of their probation and completes deferred, the original guilty plea does not result in a conviction and the charge is "dismissed."

The average client believed when they completed deferred adjudication successfully, their "criminal record" would be wiped clean. In other words, after being discharged from deferred, the average client (and even some lawyers) thought the charge was set aside with a finding of not guilty and, therefore, the arrest and charging records would not not be available to the public. Some people even believed a person who successfully completed deferred was eligible for an expunction of their records.

Regretfully, this misunderstanding often came home to roost when folks found out these records were available to the general public in any courthouse. The records were also available through the Texas Department of Public Safety. Making matters even more difficult for clients was the plethora of Internet providers who purchase criminal history data from the state's and make the records available on the Internet.

However, the Texas legislature finally realized that persons who received deferred adjudication and completed probation successfully needed relief from the stigma attached to having pled guilty to a criminal offense. Consequently, it passed a law allowing for an "Order of Nondisclosure" in certain cases when deferred had been completed. The law stated: "After notice to the state and a hearing on whether 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 relating to the offense giving rise to the deferred adjudication." Tex. Gov't Code sec. 411.081

A person who received deferred adjudication for a misdemeanor can often petition the court for an Order of Nondisclosure immediately upon the successful discharge from probation. However, there is a two-year waiting period following the completion of probation for persons on deferred for indecent exposure, public lewdness, disorderly conduct, obstructing a highway, false report, interference with an emergency telephone call, harassment, cruelty to animals, unlawfully carrying a weapon, or making a firearm accessible to a child. All persons who received deferred adjudication for a felony charge must wait five years before becoming eligible for a nondisclosure order.

During the waiting period, the person must not have been convicted of, or placed on deferred adjudication for, any offense "other than" an offense that resulted "only" in a fine under the Texas Transportation Code. A person shall not be granted an Order of Nondisclosure if that person has been previously convicted or placed on deferred adjudication for any of the following: (1) An offense requiring registration as a sex offender; (2) Murder, capital murder, injury to a child, elderly or disabled, endangering a child, violation of a protective order, stalking, or aggravated kidnapping; or (3) Any other offense involving family violence.

If an Order for Nondisclosure has been issued, information is not available by a public records request. A person who has obtained a nondisclosure order may deny the occurrence of both the arrest and prosecution to which the information relates "unless it is being used against that person in a subsequent criminal proceeding." All private entities that collect and compile criminal histories must comply with nondisclosure orders or face penalties and/or prosecution for releasing information in violation of the order.

If you believe you might be eligible for an Order of Nondisclosure, don't hesitate to contact the Bryan|College Station Expunction Attorney to discuss your options.

16 comments:

midland, tx said...

Mr. Gustitis, my son was 17 when he was arrested for POD in May 2009. In Oct. 2009, he was arrested for furnishing alchol to a minor and POM. Our atty had the lesser charges "plead to" under the POD charge. My son got deferred adjudication,1 year probation, community service. His case was dismissed 1 year later. My question is: on a petition for nondisclosure can you petition for all 3 cases on the same petition? I'm in Midland, Texas. Thank you,

Stephen Gustitis said...

Dear Midland:
I don't understand what your attorney did to resolve the lesser charges. I'd need to see the plea paperwork and judgements to understand fully. My recommendation is to contact a defense attorney experienced in non-disclosure work in the county where these cases were resolved. Walk through the facts with the attorney and get their opinion. I'm sorry I cannot help you anymore than this.

Anonymous said...

Hi, i have a defense lawyer who, ive only meet with twice & spoke with twice. However ive never been to court, i didnt know how it worked till after. Tho before court my lawyer tells me all im getting is a 500 fine, & 1yr prob. I wanted trial for class a misd,theft. He speaks of no pleas, until i ask about deferred, i couldnt remember the last part (prosecution). He quickly stated adjudication. I asked the meaning,he said after you finish prob its dismissed, & you can later seal it. I asked expunge, he replied yes. Minutes later he came back saying he had the papers ready to go infront of the judge. After they read the terms 1yr prob,1000$fine. They said deferred adjudication. & signed. Later leaving court i asked if he could help expunge, he said of course. I read the papers as im headed to the po. & it says no contest. I was shocked, i first thought i was doing the deferred prosecution, thinking they just called it adjudication. I could have saved 2,500$ on him if i wanted to plea no contest. I called him, about my misunderstanding & miscommunication. He said he'd try talking the prosecutor into that tho he never stated yes or no. I asked if i could change it he said hed see what he can do. Can you please tell me & help me on what can happen or what may not. Or if its even possible to fix this? I wish my lawyer explained everything correctly, for i would rather have gone to trial. I dont want to be stuck wth a record forever. (1stoffense)no tickets,no nothing.clean record before now. Young adult & an euntreprenuer. Im hoping & praying to be eligible for expungement. Hoping its not to late.

Anonymous said...

Mr.Gustitis, I have been convicted of 2 dWI's 2006 and 2007 in tx both are class B misdemeanors, I have not been in any trouble since that time what so ever. I am going to be graduating from college in about a year and go into the teaching profession. My question is this, I would like to not have the dwi's on my record as i apply to school districts. Is there any way I can expunge my record or possibly get a pardon so that I can teach? And if there is a solution what would be my best plan of action and what avenues should I pursue in order to remove these nasty blemishes from my record. Any and all help is absolutely welcome.

Stephen Gustitis said...

These DWI convictions are not expungement eligible. You can certainly apply for a pardon. However, since the law allows prosecutors to use prior DWI convictions to enhance current allegations, the governor has little interest in granting a pardon. That would be a bad policy that prosecutors all over the state would oppose. That being said, go ahead and apply anyway. The worst thing they can tell you is "No." Good luck.

M E Perez said...

Mr. Gustitis, my husband has completed his deferred adjudication, and his charges were dismissed. Does he have to wait the five years stated on his release order to file for nondisclosure to request an expungement?

Stephen Gustitis said...

Ms. Perez: Your husband's eligibility for a non-discolsure depends on several factors that are not revealed in your question. I recommend speaking with a qualified criminal defense lawyer in the county where this occurred for a better answer. Thanks for stopping by.

Anonymous said...

Mr. Gustits,

Almost 20 years ago, I received public lewdness misdemeanour with deferred adjudication from when I was working in a topless bar.

This happen when I was very young and making very poor decision after high school. Long story short, I was making the choices as a result of running away from family issues and abuse as a child.

I have long ago since left that lifestyle from which I was only involved with for a very short amount of time. That arrest scared the life out of me and soon afterwards I started on a new healthy path for my life.

It's been almost 20 years since all that mess and come to find out during a job search through a staffing company, this is still showing up on my record. I was not sure if that was still on my record since I was under the impression that my probation had been served and I've have never had any other arrests since then.

This has never caused me any problem with employment opportunities until recent years and I'm not exactly sure what I can do about it. A very immature dumb choice in a small segment of my young adulthood has come back to haunt me almost two decades later. Is there anything I can do about this?

I must add that I have been offered jobs with companies where I thought backgrounds had been checked and I never had a problem. I currently have a job and looking to make a transition in my career.

My only concern now, is will this affect my chances a potential new employer. Hope you can help!

Anonymous said...

Mr. Gustits,

Almost 20 years ago, I received public lewdness misdemeanour with deferred adjudication from when I was working in a topless bar.

This happen when I was very young and making very poor decision after high school. Long story short, I was making the choices as a result of running away from family issues and abuse as a child.

I have long ago since left that lifestyle from which I was only involved with for a very short amount of time. That arrest scared the life out of me and soon afterwards I started on a new healthy path for my life.

It's been almost 20 years since all that mess and come to find out during a job search through a staffing company, this is still showing up on my record. I was not sure if that was still on my record since I was under the impression that my probation had been served and I've have never had any other arrests since then.

This has never caused me any problem with employment opportunities until recent years and I'm not exactly sure what I can do about it. A very immature dumb choice in a small segment of my young adulthood has come back to haunt me almost two decades later. Is there anything I can do about this?

I must add that I have been offered jobs with companies where I thought backgrounds had been checked and I never had a problem. I currently have a job and looking to make a transition in my career.

My only concern now, is will this affect my chances a potential new employer. Hope you can help!

Stephen Gustitis said...

Please contact my office at 979-823-9111 to discuss this matter. Thanks for your comment.

J. Hirst said...

Mr. Gustitis,
I was reading the information you provided about nondisclosure and I was confused about one thing. I am on differed adjudication for injury to a child/Criminal negligence, will I not be eligible for the non disclosure? I have completed everything for probation and I am wanting to finish my degree but with this on my record I will have to change my degree. I am only 26 and I have no prior criminal history. Thank you so much for your time.

J.H.

Stephen Gustitis said...

Dear J.H.
Offenses prosecuted under Chapter 22 of the penal code are specially excluded from non-disclosure eligibility. Injury to a child is in Section 22.04. Consequently, you cannot become eligible for a non-disclosure.

J. Hirst said...

Mr. Gustitis,

I was reading through the information you have provided on your webpage and I was confused with the part where it states felony differed adjudications must wait 5 years. And then later it says Injury to a child cannot have a nondisclosure filed, is that only if you get a new charge within the 5 year waiting period or is that just flat out they cannot be a part of the non disclosure?

Stephen Gustitis said...

You cannot get a non-disclosure for completing deferred adjudication for an offense under Chapter 22 of the Penal Code. You were prosecuted under Chapter 22 of the Penal Code. Consequently, you cannot get a non-disclosure.

Anonymous said...

I worked for TDCJ for over 6 years I left being young and dumb I received a possession of marijuana charge and received 1yr deferred adjudication. Fast forward 10 years I was wondering if I tried to get a non disclosure would that affect me returning to TDCJ? It's been 10 years I don't want to waste the time and money if it won't help me make the return to state service.

Stephen Gustitis said...

I have no idea whether a successful non-disclosure would affect your employment prospects with the State. However, why not get the non-disclosure anyway? What possible downside is there to sealing your criminal record on this matter? Don't think about the money, think about the long-term affect on future job prospects of any kind. You are limiting your thinking too much. Good luck.