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.