Nondisclosure: Seal Your Record with a Second Chance
What is nondisclosure under Texas law and how can it help me?
Most everyone deserves a second chance. Texas law may provide you with one by way of nondisclosure. When a nondisclosure is granted, criminal records related to the underlying case are sealed, and may only be used for very limited purposes. After an order for nondisclosure, you’re not required to disclose you’ve been the subject of a criminal proceeding in any application for employment or licensing. You may deny the occurrence of an arrest unless the information is being used against you in a subsequent criminal proceeding.
How can the government use my records after an order for nondisclosure?
Generally, the government can still share your criminal records with law enforcement agencies carrying out law enforcement business. Your original conviction can still be used against you in a subsequent prosecution. Your records can also still be shared with certain licensing agencies under Section 411.0765 and Section 411.081(i) of the Texas Government Code. Records subject to nondisclosure are not erased forever and always, but nondisclosure is still a powerful tool.
Is nondisclosure the same thing as an expunction?
No. It is important to note that nondisclosure is not the same thing as an expunction. The two legal tools have the same objective – to clear someone’s criminal history, but they are different in design and scope. Read more about expunctions here.
Nondisclosures are concerned with your overall criminal history rather than just the disposition of one instant case. Also, nondisclosures have a “best interest of justice” requirement that generally allows a judge to deny a nondisclosure even if all other requirements are met.
What is a “waiting period” for nondisclosures?
Different types of nondisclosures carry with them different waiting periods. A waiting period is how long you have to wait in order to clear your record.
Can I get a nondisclosure under Texas law?
It is important to consider that nondisclosure is a very complex area of law, in that there are multiple categories, rules, and exceptions that may apply to your case. The information contained on this page is by no means an exhaustive review of nondisclosure law, as there are certain rare types and exceptions not discussed. What is provided here is a summary, and a starting point.
When determining if you’re eligible for non-disclosure, there are two baseline requirements you need to meet. Note: these two baseline requirements do not apply to veterans under the Veteran’s Reemployment Program. Read more about that program below.
First, §411.074(b)(1) of the Government Code contains a list of offenses you can’t have been convicted for, or placed on deferred adjudication for, at anytime in your past. These offenses include any offense requiring sex offender registration; offenses involving family violence; aggravated kidnapping; murder or capital murder; injury to a child, elderly, or disabled person; abandoning or endangering a child; violation of a protective order; repeated violation of bond conditions in a family violence case, or stalking.
Second, you can’t have been convicted or placed on deferred adjudication for any offense, other than a fine-only traffic offense, from the time of sentencing until any relevant waiting period has passed.
If the above two factors don’t disqualify you, then you may be eligible for nondisclosure.
What is the Veteran’s Reemployment Program and how does it relate to nondisclosure?
Our veterans serve bravely to keep the people of Texas safe, but they sometimes face mental health challenges or residual trauma when returning to regular society. In 2019, the Texas Legislature created a new Veteran’s Reemployment Program designed to offer training and education to veterans placed on community supervision for misdemeanor offenses. A veteran who successfully completes the program may receive an order of nondisclosure. Unlike other forms of nondisclosure, the veteran
does not have to meet the two baseline requirements discussed above. Thus, a veteran may be able to get a family violence case nondisclosed through this program. There is also no waiting period for this type of nondisclosure.
Does completing Veteran’s Court affect right to nondisclosure?
Yes. A veteran is often entitled to a nondisclosure if he successfully completes a veteran’s court program under the Texas Government Code §411.0727. There are exceptions to this rule, and thus consulting an attorney regarding every specific situation is important. However, most of the time a veteran is entitled upon completion of the program, regardless of whether the veteran was convicted of an offense or placed on deferred adjudication, or if the case was dismissed. If the case was dismissed, the veteran may be eligible for an expunction.
What is an “automatic nondisclosure” under Texas law?
This special kind of nondisclosure applies to certain low-level, first-time misdemeanor offenders. The authority for this kind of nondisclosure is found in §411.072 of the Texas Government Code. The automatic nondisclosure only applies to a person who receives deferred adjudication for an offense not found in Chapters 20, 21, 22, 25, 42, 43, 46, and 71. In other words, if your offense is under any of those chapters, you’re disqualified from the automatic nondisclosure. Also, you won’t be able to receive an automatic nondisclosure if you’ve ever been convicted or placed on deferred adjudication before for any offense other than a fine-only traffic offense. To receive an automatic nondisclosure if you meet the above criteria, you must have been successfully discharged and dismissed from community supervision. It must also be at least 180 days from the time you were placed on supervision. An important point about these automatic non-disclosures is that there is no “interest of justice” condition that allows the government free reign to object to them. If you do not qualify for an automatic nondisclosures, you may still be eligible under another category.
Can I get a Driving While Intoxicated nondisclosure under Texas law?
Nondisclosures for DWIs haven’t always existed in Texas, but our legislature created a few paths to nondisclosure during the 2017
and 2019 sessions. There are three different categories authorizing nondisclosure, depending on whether you received probation, a straight conviction, or deferred adjudication.
For those who successfully completed a DWI probation, there is a pathway to nondisclosure under §411.0731 of the Government Code intended for first-time offenders only, meaning you must not have been previously convicted or put on deferred for any offense except a traffic violation. Also, if your blood alcohol concentration was tested greater than .15, you’ll be ineligible for nondisclosure. The government also has the chance to stop this kind of nondisclosure if they prove your DWI resulted in a motor vehicle accident involving another person, including a passenger inside your own car.
The waiting period for a DWI probation nondisclosure is tied to whether you had an ignition interlock device installed as a condition of your probation. If you had an interlock device installed for more than 180 days, then the waiting period is two years. Without an interlock, the waiting period is five years.
In the case of a DWI conviction, §411.0736 of the Texas Government Code controls access to nondisclosure. This law follows very closely the probation law above, in that you can’t get a nondisclosure if your BAC was above a .15. Also, the government can prove your DWI resulted in a motor vehicle accident involving another person to block the nondisclosure.
The waiting period for DWI conviction nondisclosures is also tied to the interlock device. If you had an interlock device as a condition of your sentence for more than 180 days, then the waiting period is three years. Without an interlock, the waiting period is five years.
In 2019, the Texas legislature created deferred adjudication for Driving While Intoxicated and other similar intoxication offenses, and thus they also created a pathway to nondisclosure for certain offenders placed on deferred adjudication. This new law is found under §411.0726 of the Government Code. You are potentially eligible for nondisclosure if you received deferred adjudication for any offense under Penal Code §49.04 (Driving While Intoxicated), or §49.06 (Boating While Intoxicated), provided that you must successfully complete your deferred adjudication, including paying all costs and fines. You must not have any prior convictions or deferred adjudications for any offense other than a fine-only traffic offense, and you must show that issuance of the nondisclosure order is in the best interest of justice. A judge also has the potential to block this type of nondisclosure with an affirmative finding under 42A.105(f) of the Code of Criminal Procedure. The waiting period is two years from discharge of your deferred adjudication.