Part I of this post discussed the new automatic nondisclosure of certain misdemeanors. Another significant change in Texas nondisclosure law is eligibility for nondisclosure of probation in some instances.
Nondisclosure of Probation in Texas
In the past, only successfully completed terms of deferred adjudication were eligible for nondisclosure. Under the new law, probation (which is a final conviction) is eligible for nondisclosure under certain circumstances. Nondisclosure of probation is governed by Chapter 411.074 of the Texas Government Code.
What are the Requirements for Nondisclosure of Probation?
In order for a defendant to receive a nondisclosure of a probation, the following must occur:
- the defendant successfully completes the probation;
- the defendant properly files a petition for nondisclosure; and
- the courts finds, after notice to the State and opportunity for a hearing, that a nondisclosure is “in the best interest of justice.”
Unlike automatic nondisclosure, the defendant must provide notice of the petition for nondisclosure to the state. The state has the opportunity to contest the petition in a hearing if it does not believe that nondisclosure is appropriate in a particular case.
Who is Eligible for Nondisclosure of Probation?
A defendant is eligible for nondisclosure for certain misdemeanor probations where:
- The defendant was not on probation for a the offenses of:
- driving while intoxicated
- minor driving or operating watercraft under the influence of alcohol
- flying while intoxicated
- boating while intoxicated
- assembling or operating an amusement ride while intoxicated; or
- organized crime
- The defendant has never been previously convicted or placed on deferred adjudication for another offense besides a traffic offense punishable by fine only; and
- during the time that the defendant is on probation and during any applicable waiting period (discussed below), the defendant is not convicted or placed on deferred adjudication for any offense other than a traffic offense punishable by a fine only
- The defendant was not put on probation for and has never previously been convicted (including probation) or put on deferred adjudication for the following offenses:
- a family violence offense
- an offense for which the court made an affirmative finding of family violence
- an offense that requires sex offender registration
- aggravated kidnapping
- murder or capital murder
- trafficking in persons or continuous trafficking in persons
- injury to a child or elderly or disabled person
- violations of bond conditions in family violence, sex assault, stalking, or human trafficking cases; or
Timing of Nondisclosure of Probation
For many misdemeanor probations, there is no waiting period before a defendant can file a petition for nondisclosure. However, for the following offenses, a defendant must wait for two (2) years after the end of the probation in order to be eligible for nondisclosure:
- Family violence
- Crimes involving kidnapping
- Unlawful restraint
- Sex offenses
- Disorderly conduct and similar offenses
- Public indecency
- Weapons charges