We live in the information age, in which a person can find information about virtually any thing (or person) in just a few key strokes or mouse clicks. This access to information enables employers, schools, apartments, mortgage companies, etc. to easily conduct background checks. These entities will likely make judgments and reach conclusions about you without your input or involvement. You may miss out on a job opportunity without being given the opportunity to explain the blemish on your criminal history. Don’t leave anything to chance.
Many people are under the misconception that criminal convictions can later be removed/sealed on their criminal histories. Likewise, many people believe that accepting some form of deferred adjudication probation will prevent the offense from showing on a criminal background check. With the job market as competitive as it is today, you cannot afford to make this mistake.
An expunction and a non-disclosure are not synonymous and yet many people believe (albeit mistakenly) that they are one in the same.
Expunctions
An expunction is a process in which all of the information related to a criminal charge is permanently destroyed – arrest records, book-in photos, police reports, district attorney files, court records, computer records, etc. Every conceivable entity is ordered to destroy those records in its possession. The great thing about an expunction is that there are teeth behind it. Any person found to be in possession of expunged materials may be criminally prosecuted.
- An expunction is available in the following situations:
- When the criminal case has been dismissed
- When the accused was acquitted — found not guilty by a judge or jury
- When the accused is arrested but the case was not indicted or filed against them
- When a person has been convicted and later received a pardon by the governor; or
- When the person receives deferred adjudication probation for a class C misdemeanor (the same level crime as a traffic ticket).
The process of obtaining an expunction is relatively painless for the client, but there is certainly work involved for the attorney. Once hired, we will file a petition for expunction which initiates a lawsuit on behalf of the client, and request that the court conduct a hearing to determine whether the client is legally entitled to an expunction. Every conceivable entity that may possess information about the arrest will be served with a copy of the petition and will receive notice of the hearing. If any entity chooses, it may appear at the hearing and contest the expunction. In most cases, there are no objections to the expunction and the court grants the expunction without the need for a hearing. Occasionally, there will be the need for a hearing and the client will testify. In those cases, we will spend time with the client to prepare for his/her testimony. Once the expunction is granted, it will take some time for the records to be destroyed. We usually advise 60 to 90 days. The legal effect of an expunction is that the client may truthfully and legally state that he/she has never been arrested, charged, or convicted of a crime.
The laws regarding expunctions changed in September 2011. Most notably, our Governor signed a bill into law that allows for those children who were under the age of 17 at the time of the offense and who were convicted for “sexting” under Texas Penal Code 43.261 to petition for an expunction once they reach the age of 17.
Non-Disclosures
A non-disclosure is reserved for those individuals who have received deferred adjudication and have successfully completed the probation. Unlike an expunction, the non-disclosure does not result in destruction of the criminal records. Rather, the non-disclosure seals the records so that the general public cannot access them. Law enforcement and some governmental entities will always be able to access the records. The private sector will not.
There is a major misunderstanding about what deferred adjudication probation means. In my experience, most people who receive deferred adjudication probation truly believe that the case will not show up on their criminal record. These people are wrong. Deferred adjudication probation is not a conviction, so a conviction will not show up on a criminal history. However, the arrest, charge, and probation will be there. In other words, the arrest, disposition, and case information are still available for the public view until they are sealed from the general public (i.e. the non-disclosure).
A non-disclosure does not happen automatically. An individual must hire a lawyer, who will petition the court to order that the records are sealed. The court will set the matter for a hearing to determine whether a non-disclosure is appropriate. It is more common to have a hearing for non-disclosures than for expunctions.
Not all cases that result in deferred adjudication may be sealed. The legislature has determined that certain offenses cannot be sealed. Those criminal offenses include the following:
offenses involving sex offender registration; aggravated kidnapping; murder; capital murder; injury to a child, elderly, or disabled; abandoning or endangering a child; violation of certain court orders or conditions of bond in family violence cases; stalking; or any offense involving family violence.
Moreover, a person who has been who has been previously convicted or placed on deferred adjudication probation for any of the above-listed offenses is not eligible to petition the court for non-disclosure in a subsequent case. Additionally, to be eligible for an order of non-disclosure, the person cannot be convicted of or placed on deferred adjudication probation during the period of the deferred probation sought to be sealed or during any applicable waiting period. (This preclusion does not include violation of the Texas Transportation Code – traffic violations.)
For certain types of cases there are waiting periods that must elapse before a person can petition for a non-disclosure. Any felony offense for which a person receives deferred adjudication probation has a five year waiting period. There is a two year waiting period for the following misdemeanor offenses:
Unlawful restraint; public lewdness; indecent exposure; assault (not involving family violence);deadly conduct; terroristic threat; leaving a child in a vehicle; bigamy; harboring a runaway child; advertising for placement of a child; disorderly conduct; riot; obstructing a highway or passageway; disruption of a meeting or procession; funeral service disruptions; false alarm or report; silent or abusive calls to 911; interference with emergency telephone call; harassment; abuse of a corpse; cruelty to livestock animals; attack on assistance animal; cruelty to non-livestock animals; dog fighting; cockfighting; destruction of flag; discharge of firearm in certain municipalities; use of laser pointers; illumination of aircraft by intense light; unlawful carrying weapons; places weapons prohibited; unlawful carrying of handgun by license holder; unlawful possession of a firearm; prohibited weapons; unlawful transfer of certain weapons; hoax bombs; making a firearm available to a child.
In today’s information age, it is imperative that people do everything in their power to keep their records clean. Don’t lose the opportunity for that great job you’ve been working so hard for. Take charge of your future and don’t let your past catch up with you. Stop worrying or feeling stressed that an employer may do a background check on you.