Changes in Texas Nondisclosure Law (Part IV of IV)

Part I of this post discussed the new automatic nondisclosure of certain misdemeanors.  Part II of this post discussed petitions for nondisclosure of misdemeanor probation.  Part III of this post discussed petitions for nondisclosure of misdemeanor convictions with jail sentences.  In addition to these forms of nondisclosure, Texas law still permits courts to grant nondisclosure of certain felony and misdemeanor deferred adjudications that are not automatic nondisclosures.

Nondisclosure of Deferred Adjudication in Texas

Under the nondisclosure law effective September 15, 2015, many successfully completed misdemeanor and felony deferred adjudications are eligible for nondisclosure.  Nondisclosure of felonies and misdemeanors (where nondisclosure is not automatic) is governed by Chapter 411.0725 of the Texas Government Code.

What are the Requirements for Nondisclosure?

In order for a defendant to receive a nondisclosure of a felony or misdemeanor (where nondisclosure is not automatic), the following must occur:

• the defendant successfully completes the term of deferred adjudication;
• 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.”

Who is Eligible for Nondisclosure?

A defendant is eligible for non-disclosure of felonies and misdemeanors (where nondisclosure is not automatic) if:

• during the 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 convicted of and has never previously been convicted (including probation) or put on deferred adjudication for the following offenses:
  1. a family violence offense
  2. an offense for which the court made an affirmative finding of family violence
  3. an offense that requires sex offender registration
  4. aggravated kidnapping
  5. murder or capital murder
  6. trafficking in persons or continuous trafficking in persons
  7. injury to a child or elderly or disabled person
  8. violations of bond conditions in family violence, sex assault, stalking, or human trafficking cases
  9. stalking

Note: For nondisclosure under Chapter 411.0725, whether the defendant has been previously convicted or placed on deferred adjudication for another offense besides a traffic offense punishable by fine only is not a consideration for eligibility.

Timing of Nondisclosure of Felonies and Certain Misdemeanors

A defendant seeking nondisclosure of a felony offense for which successfully competed deferred adjudication must wait for five (5) years after the completion of the term of deferred adjudication.

A defendant seeking nondisclosure of most misdemeanor (where nondisclosure is not automatic) offenses can file a petition for nondisclosure immediately after completion of deferred adjudication.  However, for the following offenses, a defendant must wait for two (2) years after the end of the deferred adjudication in order to be eligible for nondisclosure:

• Family violence
• Assault
• Crimes involving kidnapping
• Unlawful restraint
• Sex offenses
• Disorderly conduct and similar offenses
• Public indecency
• Weapons charges