Frequently Asked Questions
- Are deferred adjudication records public?
- Can deferred adjudication records be made non-public?
- Who is ineligible to seek an order of non-disclosure?
- What might disqualify me from seeking an order of non-disclosure?
- What are the waiting periods before you are allowed to file for Non Disclosure?
- How do I file the petition?
- When will the petition be heard?
- What information is reviewed at the hearing?
- If I meet the statutory requirements for eligibility will I be granted the Order?
- After my Order for Non Disclosure is granted, can I deny it ever happened?
- What happens to make sure that this "criminal record" information is "sealed"?
- What keeps internet based "Public Database" search firms from continuing to distribute my information?
- What if I have legal questions before I start using TexasFreshStart.com?
- Does the cost of using TexasFreshStart.com cover court filing fees?
A. Yes, although there is a common misconception that deferred adjudication records are removed from a defendant's criminal history upon successful conclusion of the community supervision probation period. This in not true. Records of a prosecution resulting in a deferred adjudication are publicly available in many municipal, County and State and National Databases. As information technology has advanced, the benefit of a deferred adjudication dismissal has vanished. Many defendants responded by seeking expunctions or pardons. They were told that a deferred adjudication is not subject to expunction because it involves community supervision probation, and that a pardon is unavailable when there is no conviction. As a result of SB 1477, certain defendants may now obtain an order to Seal court and law enforcement records after successfully completing deferred adjudication probation. The relief should be welcome news to the hundreds of thousands of felony defendants and to millions of misdemeanor defendants who resolved and will resolve their cases by deferred adjudication.
Q2 Can deferred adjudication records be made non-public?
A.
Yes, in some instances. There are two ways that deferred adjudication community supervision records can be made non-public:
(1) Class C deferred adjudications -- By filing an expunction under Article 45.051(e), Code of Criminal Procedure (if
the Class C deferred adjudication was imposed in justice court or municipal court); or by filing an expunction under Article
55.01(a)(2), Code of Criminal Procedure (if the Class C deferred adjudication was imposed in county or district court). Expunction
is not available for deferred adjudication sentences for Class B, Class A, or felony offenses.
(2) Petition for nondisclosure
Under Section 411.081(d), Government Code, a court can prohibit criminal justice agencies from disclosing to the public criminal
history record information related to certain offenses for which the offender was placed on deferred adjudication. There are
many offenses, however, for which this procedure is unavailable. Moreover, a defendant may be disqualified if he commits an
offense after the deferred adjudication has been completed and before filing the petition.
Q3 Who is ineligible to seek an order of non-disclosure?
A.
Under Section 411.081(e)(1)-(4), Government Code, anyone who has ever committed any of the following offenses (including
the offense for which the defendant got deferred adjudication) is not entitled to seek an order of nondisclosure.
- Indecency with a child
- Sexual assault
- Aggravated sexual assault
- Prohibited sexual conduct (incest)
- Aggravated kidnapping
- Burglary of a habitation with intent to commit any of the above offenses
- Compelling prostitution
- Sexual performance by a child
- Possession or promotion of child pornography
- Unlawful restraint, kidnapping, or aggravated kidnapping of a person younger than 17 years of age
- Attempt, conspiracy, or solicitation to commit any of the above offenses
- Capital Murder
- Murder
- Injury to a child, elderly individual, or disabled
- individual Abandoning or endangering a child
- Violation of protective order or magistrate's order
- Stalking
- Any other offense involving family violence
Q4 What might disqualify me from seeking an order of non-disclosure?
A.
Any defendant who, after the date of discharge and dismissal, has been convicted or placed on deferred adjudication for any
offense other than a traffic offense punishable by fine only. See Section 411.081(e), Government Code.
Q5 What are the waiting periods before you are allowed to file for Non Disclosure?
A. Under Section 411.081(d), the defendant has to wait a certain period of time after the date of discharge and dismissal before filing a petition for an order of nondisclosure. The operative date is not the date that the defendant entered his plea: it is the date that the deferred adjudication was concluded.
All Felonies: You must wait 10 years from the date of discharge and dismissal before filing
Misdemeanors on the following list: 5 years from date of discharge and dismissal:
- Unlawful restraint
- Dog fighting
- Indecent exposure
- Assault
- Deadly conduct
- Terroristic threat
- Aiding suicide
- Harassment
- Bigamy
- False alarm or report
- Discharge of firearm
- Public lewdness
- Disorderly conduct
- Riot
- Cruelty to animals
- Abuse of corpse
- Hoax bombs
- Disrupting meeting or procession
- Silent or abusive calls to 9-1-1 service
- Interference with emergency telephone call
- Destruction of flag caused by bias or prejudice
- Leaving a child in a vehicle
- Violation of protective order preventing offense
- Advertising for placement of child
- Harboring runaway child
- Unlawful carrying weapons
- Unlawful carrying of handgun by license holder
- Unlawful possession of firearm
- Possession, manufacture, transport, repair or
sale of switchblade knife or knuckles - Unlawful transfer of certain weapons
- Obstructing highway or other passageway
- Making a firearm accessible to a child
Other misdemeanors: may file immediately upon discharge and dismissal.
Q6 How do I file the petition?
A. The individual
seeking to have criminal history record information sealed must petition the court of original jurisdiction for an Order of
Non Disclosure. In all of these petitions, you will need the following information at a minimum:
- The original court and cause number in which the deferred adjudication was imposed.
- The date of the original plea of guilty or no contest.
- The offense for which the defendant was placed on deferred adjudication.
- The date upon which the court dismissed the proceedings and discharged the defendant from deferred adjudication community supervision.
The completed petition should be submitted to the District Clerk's criminal public service section
along with the proper filing fee.
CAUTION: The information listed above is the MINIMUM
....to be prepared
for a successful hearing we strongly suggest that you file supplemental information. TexasFreshStart.Com's filing instructions outline the specific needs and the proper documents.
Q7 When will the petition be heard?
A. Generally,
the petition will be docketed for a hearing in the original court fourteen days after the date of filing. Do not miss the
hearing date, or the petition may be dismissed for want of prosecution.
Q8 What information is reviewed at the hearing?
A.
A defendant needs to be prepared to provide evidence of the following elements:
- The defendant entered a plea of no contest or guilty to the offense
- The Court placed the defendant on deferred adjudication with community supervision probation.
- The Court dismissed the proceedings in this case and discharged the defendant from deferred adjudication community supervision
- The defendant is not disqualified from filing a petition under Section 411.081(e)
- The petition was timely filed under Section 411.081(d).
- Issuance of the order is in the best interest of justice
The Court will either sign an order granting the petition or denying the petition
Q9 If I meet the statutory requirements for eligibility will I be granted the Order?
A. The State could still oppose the petition as not in the best interest of justice. Statutory eligibility
should satisfy the best interest of justice requirement because the purposes of the legislation are to restore to defendants
the benefit of deferred adjudication and to serve judicial economy by fostering settlements. Some prosecutors and judges,
however, are not particularly fond of the new laws and we have reports that some oppose each petition as a matter of principle.
The best plan is to include an affidavit and other information with the petition to show that society will benefit, as intended
by the legislature, should the petition be granted. Some cases will most certainly be opposed by the State where it claims
the best interest of justice would not be served. These cases might include DWI reductions and the old deferred adjudication
DWI cases
Q10 After my Order for Non Disclosure is granted, how should I handle questions about the offense?
A. Once the order is issued, the defendant may deny the occurrence of the arrest and prosecution
to which the information relates unless the information is being used against the person in a subsequent criminal proceeding.
The order and the right to deny the arrest and prosecution does not prevent a criminal justice agency from disclosing criminal
history record information to the defendant himself; to another criminal justice agency; or to a non-criminal justice agency
authorized by state or federal law to receive criminal history record information.
Q11 What happens to make sure that this "criminal record" information is "sealed"?
A. The court's order will be sent to the Department of Public Safety (DPS). The DPS then sends
the order to all law enforcement agencies, jails or other detention facilities, magistrates, courts, prosecuting attorneys,
correctional facilities, central state depositories of criminal records, and other officials or agencies or other entities
of this state or of any political subdivision of this state, and to all central federal depositories of criminal records that
there is reason to believe have criminal history record information that is the subject of the order. Those entities are obliged
not to disclose the deferred adjudication record information to anyone other than an individual or agency described by Section
411.083(b)(1), (2), or (3), Government Code.
Q12 What keeps internet based Public Data search firms from continuing to distribute my information?
A. Once you are granted an Order of Non Disclosure you can lawfully deny arrest and prosecution
when asked, but contradictory evidence may still be available on certain private databases via the Internet. To address this
problem, the law provides a civil penalty of $500 for each such disclosure. A private entity; that compiles or discloses criminal
history data for compensation; is subject to the order of nondisclosure...but the defendant must comply with the following
statutory requirements after the original order of nondisclosure is issued. The defendant must:
Take the evidence of
a violation to the district court (even if the case was a misdemeanor)
The district court will issue a warning to the
private entity. Presumably a conscientious corporate citizen will be concerned about its public image and would discontinue
the disclosure.
After receiving a warning for the first violation, the private entity is liable to the state for a civil
penalty not to exceed $500 for each subsequent violation.
The penalty is enforceable by the attorney general or by an
appropriate prosecuting attorney, but the threat of being in noncompliance with a court order may be enough to prompt compliance
by corporate information brokers.
Q13 What if I have legal questions before I start using TexasFreshStart.com?
A. TexasFreshStart.com support cannot answer specific legal questions. This is illegal in Texas. We can definitely help educate
you on some general issues and give you research links and tips to help you answer any question you may have. Email your question!
Most legal questions are addressed through the process of answering the questions and reading explanations and law as necessary.
Q14 Does the cost of using TexasFreshStart.com cover court filing fees?
A.
No. Court filing fees are in addition to the cost of using TexasFreshStart.com. You pay filing fees directly to the court.
