What Constitutes An Order Of Nondisclosure, Expunction, And Pre-Trial Diversions In Houston, Texas?
Understanding legal definitions of terms used when discussing nondisclosure orders, expunctions, and diversion programs allows you to have a better grasp on the intricacies of the terms introduced.
Order of Nondisclosure
Court order that prohibits any public entity, for example, courts or police departments, from disclosing specific criminal offense or offenses, however, the public entity still has the right to hold on to your records. The order only applies to those offenses that are requested, it does not apply to all criminal offenses ever committed.
Expunction
This is much like an order of nondisclosure except instead of the public entity retaining the records and not disclosing them, the public entity is required to destroy the records. It is as if the conviction never occurred. Obtaining an expunction is more rigorous than an order of nondisclosure and requires a civil suit to be brought against the prosecuting office, typically the District Attorney.
Pre-Trial Diversions
How Can I Obtain An Order Of Nondisclosure?
Receiving an order of nondisclosure requires that the applicant meet six criteria successfully before being considered for an order of nondisclosure.
The first step is being placed on “deferred ajudication”. Deferred ajudication is a type of supervised probation that the applicant is placed on for a certain period of time.
The applicant typically pleads guilty to the charge, asking for deferred ajudication at their hearing. Deferred ajudication is not considered a conviction under Texas law. Your criminal defense attorney will make sure a copy of your deferred ajudication order is attached to your application.
The second step (not suprisingly) is to successfully complete your supervised deferred ajudication, and obtain an order of dismissal and discharge. Just because it appears as if your case has been dismissed, your record will still reflect the charges, so it is important to follow through on the nondisclosure application with your criminal defense attorney for a successful outcome. This too should be attached to your application.
The third criteria that must be met is making sure the offense qualifies under the nondisclosure eligible offenses. The following offenses are not eligible for nondisclosure orders:
-
Any
of the following crimes:
- Injury to child, elderly, or disabled
- Murder and Capital Murder
- Kidnapping
- Stalking
- Abandoning/Endangering a Child
- Any violations to a court order or bond involving family violence, child abuse or neglect, sexual assault or abuse, stalking, or trafficking
- Any offenses that require registering as a sex offender
- Any offenses that involve family violence
If the crime you are trying to apply for fits into any one of those categories then you are not eligible for a nondisclosure order.
The fourth step requires an analysis of your current criminal record. If an applicant has a criminal record with any of the following offenses, then the applicant is not eligible for a nondisclosure order.
- Injury to a child, elderly, or disabled
- Murder and Capital Murder
- Kidnapping
- Stalking
- Abandoning/Endangering a Child
- Any violations to a court order or bond involving family violence, child abuse or neglect, sexual assault or abuse, stalking, or trafficking
- Any offenses that require registering as a sex offender
- Any offenses that involve family violence
These offenses are the same as the offenses included in step three.
During the fifth step, the applicant must wait a certain amount of time before applying for their nondisclosure order. Your criminal defense attorney will be able to give you an exact date as it applies to your offense. Generally, felonies and misdemeanors all have different waiting periods.
For felonies, the applicant must wait five years from the date that is located on the dismissal and discharge, which is granted after the successful completion of the deferred ajudication.
The following misdemeanors included in the specified chapters require a waiting period of two years from the date on the dismissal and discharge order:
- Texas Penal Code Chapter 20 Kidnapping and Unlawful Restraint
- Texas Penal Code Chapter 21 Sexual Offenses
- Texas Penal Code Chapter 22 Assaultive Offenses
- Texas Penal Code Chapter 25 Offenses Against the Family
- Texas Penal Code Chapter 42 Disorderly Conduct and Related Offenses
- Texas Penal Code Chapter 46 Weapons
For any other misdemeanors, the applicant and their criminal defense attorney do not have to wait to file a petition seeking an order of nondisclosure. Your criminal defense attorney can file the petition as soon as the applicant is granted the dismissal and discharge order.
Finally, the last criteria required to apply for an order of nondisclosure is refraining from committing any offenses during a “special time period”. The special time period begins on the day the deferred ajudication is ordered and ends on the day the dismissal and discharge is ordered plus the waiting period. Traffic tickets and any “fine-only” offenses under the Texas Transportation Code do not count as committing an offense.
Once all the conditions are met, your criminal defense attorney will help you complete a petition and walk you through the steps of the process. The procedure can be arduous and confusing, having a criminal defense attorney on your side is essential for a successful outcome.
How Do I Obtain An Expunction?
For many individuals, an expunction is preferable to a nondisclosure order while expunctions are harder to have granted. Therefore, a nondisclosure order is a great alternative to an expunction if the applicant doesn’t qualify.
An expunction destroys all information pertaining to an arrest, charge, or conviction from any permanent record. The criminal record is eligible if the following apply:
- An arrest for a crime that was never charged
- A charge that was dismissed
- Specific juvenile offenses
- Minor convicted under alcohol offenses
- Failure to attend school conviction
- Any arrest, charge, or conviction for identity theft if another person was actually convicted for the identity theft
- A conviction acquitted by a jury or a court of appeals
- A conviction that was pardoned by the Governor of Texas or the U.S. President
There are certain criteria that automatically deny the applicant the possibility of receiving a expunction. These include:
- Individuals that have received deferred ajudication
- Applying before the five-year waiting period if the application is for a felony
- If there are charges pending for a different crime that occurred during the same time as the crime the applicant is trying to expunge
- If the applicant was convicted of a crime that occurred during the same time as the crime the applicant is trying to expunge
- If the statute of limitations for a felony crime that is subject to expunction has not expired yet
Juvenile convictions typically can be expunged. If the offense is a misdemeanor, punishable by paying a fine, and occurred before the age of seventeen, generally that record can be easily expunged. Additionally, offenses under Alcoholic Beverage Code and Failure to Attend School statutes are typically expunged without issue.
When a juvenile is convicted of an offense, the judge usually provides information about expunction to the defendant and the defendant’s parents. If an applicant is an adult seeking a juvenile record expungement, the adult must wait until they are a certain age before applying.
The expunction process is extremely complex and requires an experienced criminal defense attorney to help guide litigants through the process. To ensure your application is accepted and your record is destroyed, make sure you have a criminal defense advocate on your side.
What Is A Pre-Trial Diversion?
Programs that allow an individual an alternative path to a conviction are very important to the Texas criminal courts. The U.S. Probation and Pretrial Services supervise these programs in an effort to avoid traditional criminal justice processes. These programs are entirely voluntary and occur before the trial stage of a case.
One of the purposes of the program is to give first time offenders a second chance for a one time mistake. The program also helps to prevent future criminal acts by using less traditional community supervision and available community services. Diversion programs also decrease expenses related to prosecuting defendants.
Expenses are also decreased for the probation department since individuals under these programs are not required to be supervised by probation for usually more than eighteen months, when typically, probation times are between three to five years.
The U.S. Attorney has wide discretion to choose any defendant to divert if there is a current criminal case against them. The following makes an individual ineligible automatically:
- An offense that falls under certain Parole Department guidelines, and is found to be more appropriate to have the case prosecuted by the state
- If the individual has two or more felony convictions
- Any public official or formal public official that is accused of an offense related to violation of public trust
- Any individual accused of an offense related to national security or foreign affairs.
Contact A Skilled And Experienced Houston Attorney That Can Help With Nondisclosure Of Your Criminal Record Or Assist With A Diversion Program
Consulting with an attorney as soon as possible in the event you have been arrested, charged, or convicted of a crime that you wish to have removed or not appear on your permanent record is very important. Your criminal defense attorney can help you preserve your rights, understand the law, complete necessary programs or applications, and make sure you stay on task throughout the whole process.
Hiring a knowledgeable and experienced criminal defense attorney, specializing in various ways that help to protect your criminal record, will ensure the process is expertly conducted and your interests are well represented.
Contact an experienced Houston Criminal Defense Attorney when you need to go through the Texas nondisclosure, expunction, or diversion process, or please call us directly at (713) 229-9992 to set up your initial consultation.
