Texas Fresh Start

Deferred Adjudication / Order of Non-Disclosure

Thanks to the state legislature, the law concerning deferred adjudication records changed effective September 1, 2003. Prior to this, a record of deferred adjudication probation remained accessible to the public forever.

As of September 1, 2003, a person who has successfully completed a deferred adjudication probation for a misdemeanor or a felony, may (depending on the offense committed) be able to ask the judge of the court of original jurisdiction that put him/her on deferred to sign an "order of nondisclosure" barring governmental agencies from disclosing the existence of the charge or the deferred adjudication sentence.

For most misdemeanors, the defendant can petition for the order of nondisclosure immediately after the deferred adjudication is discharged and the case is dismissed. For others misdemeanors a defendant must wait two years after the deferred adjudication is discharged and the case is dismissed to file for an order of nondisclosure. These misdemeanors are violations under certain chapters of the Texas Code of Criminal Procedure.

For felonies, the wait is five years after the deferred adjudication is discharged and the case is dismissed. Some offenses cannot be sealed with an order of nondisclosure. There is a mandatory state $28 filing fee for an order of nondisclosure plus the normal cost of filing a civil suit, in most counties the charge is about $225 to file. After a judge has ordered nondisclosure, the defendant may deny the occurrence of the arrest and prosecution unless the information is being used against him/her in a subsequent criminal proceeding.

Many Attorneys expect to charge between $500 and $1,500 for each motion for non-disclosure, and an initial consultation fee of $100.

If you received deferred adjudication and your probation is revoked, you cannot appeal the revocation. If you receive straight probation, you are convicted of the crime with which you are charged and can not qualify for non-disclosure. If you receive deferred adjudication probation, you are not convicted (for purposes of Texas criminal law) unless you violate your probation.

Deferred adjudication is not permitted for DWI. The judge cannot give straight probation for so-called 3g (aggravated) offenses (but the jury can, if the sentence is 10 years or less).

In addition, for purposes of federal law, a deferred adjudication is the same as a conviction. So punishment for a subsequent federal crime can be enhanced by virtue of the deferred. A person who is not a citizen can be deported for taking a deferred.

Even state law treats a deferred as a conviction for purposes of determining who is eligible to receive or renew some types of licenses. A person who received a deferred may find himself in a nasty spot when he goes to renew a license issued by the state.

Expunction