Criminal Defense Lawyer

Fort Bend County, Texas

 
     
 
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Seal Criminal Records

 

 

Has your Criminal History Come Back to Haunt You?

 

Now, more than ever, information contained in your criminal history can have far reaching and long lasting effects.  Background searches are now common place in connection with employment, loan applications, rental agreements and even social networking.  The internet has made it easy for even the novice user to obtain criminal history information.  Moreover, even if your case was dismissed or you were found not guilty, records of the arrest and charge remain a matter of public record. 

 

In some circumstances, the law may allow you to seal these records from public access (non-disclosure) or perhaps even DESTROY the records all together (expunction).  Think of the freedom and peace of mind you would enjoy if you could legally deny the fact of arrest and related court proceedings.  Continue reading to find out if you are eligible for an order of non-disclosure or expunction.

 

 

Non-Disclosure

 

Persons placed on deferred adjudication community supervision for a felony or misdemeanor may petition the court for non-disclosure of his/her criminal record, if each of the following conditions are met:

  • the person has entered a plea of guilty or nolo contendre;
  • the judge has deferred further proceedings and placed the person on community supervision without adjudicating guilt; and
  • the person has successfully been discharged, and the proceedings against him dismissed.

Notwithstanding the foregoing, the following persons are exempt from eligibility by statute:

  • persons convicted of or placed on deferred adjudication after discharge, for any offense other than an offense under the Transportation Code punishable by fine only;
  • persons required to register as a sex offender under Penal Code Chapter 62;
  • persons convicted of murder, capital murder, injuring a child, elderly or disabled individual or abandoning/endangering children; and
  • persons found to have committed family violence as defined by Family Code § 71.004.

 

Depending on the specific offense, there may be a waiting period between the time of discharge from community supervision and when the person may apply for non-disclosure.  All felony offenses require a five year waiting period.  Most misdemeanor offenses may be non-disclosed immediately upon dismissal of the deferred adjudication community supervision.  Misdemeanors under the following penal code provisions carry a two year waiting period:

  • Chapter 20 - Kidnapping & Unlawful Restraint
  • Chapter 21 - Sexual Offenses
  • Chapter 22 - Assaultive Offenses
  • Chapter 25 - Offenses Against the Family
  • Chapter 42 - Disorderly Conduct and Related Offenses
  • Chapter 46 - Weapon Offenses

When the trial court issues an Order of Non-Disclosure, an order will be sent to the Department of Public Safety requiring it to send a copy of the order of non-disclosure to all law enforcement agencies, jail or other detention facilities, magistrates, courts, prosecuting attorneys, correctional facilities, central state depositories of criminal records, and other officials or agencies or other entities, and to all central federal depositories of criminal records that there is reason to believe have criminal history record information which is the subject of the order.

 

A person granted an order of non-disclosure may legally deny the fact of the arrest, prosecution and subsequent proceedings, unless it is being used against him in a subsequent criminal prosecution.  Additionally, all records relating to the offense will be sealed from public access.

 

 

Expunction

 

Expunction is a process by which all records relating to an arrest and prosecution are destroyed pursuant to court order.  A person placed under custodial or non-custodial arrest for a felony or misdemeanor is entitled to have all files and records related to the arrest expunged (destroyed) under one of the following scenarios.

  • Acquittal or Pardon - a person found Not Guilty after a trial is entitled to have all records relating to the arrest and court proceedings expunged;
  • Pardon - person is convicted of offense but later receives a full pardon from the governor;
  • Misdemeanors - (1) person released; (2) charge no longer pending; (3) no resulting final conviction or community supervision under article 42.12 CCP, other than for a class C misdemeanor; and (4) no felony conviction for the five years prior to arrest.
  • Felonies - a person charged with a felony is eligible for expunction as follows: (1) same requirements as for misdemeanors and indictment or information not presented or (2) Indictment quashed or dismissed and statute of limitations has expired and presentment of indictment made because of mistake, false information, or other reason indicating lack of probable cause at time of dismissal to believe the person committed offense or because indictment was void.

When expunction is granted, the release, maintenance, dissemination of use of expunged records for any person is prohibited.  The person may deny occurrence of arrest and expunction order.  If questioned under oath, the person may state only that the matter has been expunged.  The knowing release, dissemination of expunged records or knowing failure to return or disseminate expunged records is a Class B misdemeanor.  

 

 

 

 

 

 
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