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Orders of Nondisclosure

An Order of Nondisclosure is a judicial order that seals from the public all records related to a Texas criminal arrest and prosecution. Getting your record nondisclosed won’t make the records go away entirely, as law enforcement and certain public and quasi-public agencies will still have access to the records. But obtaining an Order of Nondisclosure may help you get jobs, qualify for apartments and live more happily.

The law concerning Orders of Nondisclosure was updated recently, and now there are special categories of eligibility for Nondisclosure orders for offenses occurring after September 1, 2015. Also, some offenses now are “automatically” nondisclosed, but don’t let that mislead you – you still have to request the order of nondisclosure and provide evidence that you are eligible for automatic disclosure, which is almost the same as petitioning the court for an order of nondisclosure. Records related to other offenses, even if you were convicted, are now eligible to be nondisclosed if you meet certain conditions.

Do you need to obtain an Order of Nondisclosure to seal your record? Call criminal lawyer Paul Saputo at (888) 239-9305.

If you have been arrested but you want to clear your record, you first have to determine what kind of relief you may be eligible to obtain. Learn more detailed information about eligibility for Orders of Nondisclosure below, but you may also want to consider whether you are eligible for an Order of Expunction or Judicial Clemency.

Learn more about all forms of Clearing your Criminal Record

Am I eligible for an Order of Nondisclosure?

The eligibility rules for Nondisclosures are somewhat complex. To begin with, the law distinguishes between offenses occurring before September 1, 2015, and offenses occurring on or after that date.1 If an offense is alleged to have occurred prior to that date, the only circumstance in which you can get it nondisclosed is that you received deferred adjudication probation. However, not all offenses qualify for nondisclosure under the old law, and there are exceptions even when the offense does qualify. Learn more about this below.

For offenses occurring after September 1, 2015, you may be able to get an offense nondisclosed if you received straight probation or even after a sentence of confinement. Skip to the eligibility options for offenses occurring after September 1,2015

Remember, just because you are eligible does not mean you are guaranteed an Order of Nondisclosure. Most of the eligibility categories still require a judge to find that granting the Order of Nondisclosure is in the best interest of justice

Eligibility for Orders of Nondisclosure for Offenses occurring prior to September 1, 2015

The nondisclosure law applicable to offenses occurring prior to September 1, 2015, was found in Tex. Gov’t Code § 411.081.1 This law is still active, but it is no longer found in the current version of the Chapter 411 of the Government Code. The old law made it crystal clear that you would only be eligible for an order of nondisclosure if you had received deferred adjudication probation.2 Additionally, you would not be eligible to petition the court for nondisclosure if you had been convicted of or placed on deferred probation for any of the following:3

  • (1) an offense requiring registration as a sex offender under Chapter 62, Code of Criminal Procedure;
  • (2) an offense under Section 20.04, Penal Code, regardless of whether the offense is a reportable
    conviction or adjudication for purposes of Chapter 62, Code of Criminal Procedure;
  • (3) an offense under Section 19.02, 19.03, 22.04, 22.041, 25.07, 25.072, or 42.072, Penal Code; or
  • (4) any other offense involving family violence, as defined by Section 71.004, Family Code.

You also need to have completed the deferred probation successfully, obtained a discharge and dismissal and waited for the required amount of time after you completed the probation.4 Finally, the old law prohibited you from obtaining an Order of Nondisclosure if, while you were on deferred probation, you had been convicted of or placed on deferred adjudication community supervision for any offense other than an offense under the Transportation Code punishable by fine only.5

Eligibility for Orders of Nondisclosure for Offenses occurring after September 1, 2015

The nondisclosure law applicable to offenses occurring after September 1, 2015, is found in Tex. Gov’t Code §§ 411.071 – 411.0775. There are five different categories of eligibility circumstances under this new law. The categories are as follows:

The Section 411.074 Limitation

All of these categories are subject to the limitations provided in Section 411.074, which says that you are not eligible for a nondisclosure if you were convicted of or placed on deferred probation for any offense while you were on probation, after the court pronounced sentence or during any applicable waiting period. That section also says that you are not eligible for an order of nondisclosure if:

(1) [you were] convicted or placed on deferred adjudication community supervision for or [have] been previously convicted or placed on any other deferred adjudication community supervision for:

(A) an offense requiring registration as a sex offender under Chapter 62, Code of Criminal Procedure;

(B) an offense under Section 20.04, Penal Code, regardless of whether the offense is a reportable conviction or adjudication for purposes of Chapter 62, Code of Criminal Procedure;

(C) an offense under Section 19.02, 19.03, 20A.02, 20A.03, 22.04, 22.041, 25.07, 25.072, or 42.072, Penal Code; or

(D) any other offense involving family violence, as defined by Section 71.004, Family Code; or

(2) the court makes an affirmative finding that the offense for which the order of nondisclosure of criminal history record information is requested involved family violence, as defined by Section 71.004, Family Code.

“Automatic” Nondisclosure for Certain Misdemeanor Deferred Dismissals

First of all, the “automatic” nondisclosure doesn’t automatically happen. It is important to note that the law says that you must present “any evidence necessary to establish” that you are eligible for an automatic nondisclosure.6

The requirements for this category of nondisclosure eligibility are that you (1) received deferred adjudication probation for a misdemeanor, (2) the misdemeanor was not a prohibited misdemeanor (a misdemeanor under Penal Code chapters 20, 21, 22, 25, 42, 43, 46, or 71, or a misdemeanor in which there was an affirmative finding under Section 5(k), Article 42.12, Code of Criminal Procedure)7 and (3) you have never been previously convicted of or placed on deferred adjudication community supervision for another offense other than an offense under the Transportation Code that is punishable by fine only.8

In addition, you have to meet the requirements of Section 411.0749 (see above for an explanation of that code).

Standard Nondisclosure for Deferred Dismissals

The requirements for this category of nondisclosure eligibility are that you (1) received deferred adjudication probation (for either a misdemeanor or a felony),10 (2) you are not eligible for a nondisclosure under 411.072 (as described above),11 (3) you have obtained a discharge and dismissal12 and (3) you meet the requirements of Section 411.07413 (see above).

Sex Trafficking Victim Nondisclosures after Judicial Clemency

The requirements for this category of nondisclosure eligibility are that you (1) were convicted of Prostitution, (2) were placed on probation and (3) the conviction was set aside through judicial clemency.14 In addition to meeting the 411.074 requirement, the law says that the petition must be “on the grounds that the person committed the offense solely as a victim of trafficking of persons.”15

Nondisclosure after Straight Probation for Certain Misdemeanors

The requirements for this category of nondisclosure eligibility are that (1) you were convicted and placed on probation for a misdemeanor, (2) the misdemeanor was not a prohibited misdemeanor (a misdemeanor under Section 106.041, Alcoholic Beverage Code, Section 49.04, 49.05, 49.06, or 49.065, Penal Code, or Chapter 71, Penal Code), (3) you completed the period of community supervision and it was not revoked, (4) you have never been previously convicted of or placed on deferred adjudication community supervision for another offense other than an offense under the Transportation Code that is punishable by fine only, and (5) you meet the requirements of Section 411.074.16

Nondisclosure after Confinement for Certain Misdemeanors

The requirements for this category of nondisclosure eligibility are that (1) you were convicted, sentenced to confinement for a misdemeanor and released from confinement, (2) the misdemeanor was not a prohibited misdemeanor (a misdemeanor under Section 106.041, Alcoholic Beverage Code, Section 49.04, 49.05, 49.06, or 49.065, Penal Code, or Chapter 71, Penal Code), (3) you are not eligible under 411.073 above, (4) you have never been previously convicted of or placed on deferred adjudication community supervision for another offense other than an offense under the Transportation Code that is punishable by fine only, and (5) you meet the requirements of Section 411.074.17

How do I get an Order of Nondisclosure

Under most circumstances, you have to file a Petition for and Order of Nondisclosure and pay a fee. However, for 411.072 nondisclosures, you only have to provide evidence and make a request for a nondisclosure. Do not try to do the petition for a nondisclosure on your own. Certain forms found on the internet or provided by courts have language that may not cover your particular situation, and in many cases there are important pieces missing that might leave portions of your record unsealed.

Also under most circumstances, you have to provide notice to the state, set a hearing date, convince the judge that you are entitled to file the petition and that issuance of the order is in the best interest of justice. Not all judges make this easy. If you are unable to do this, the clerk may not refund your filing fee, and you may be unable to petition the court again for some time.

Who can still see my record?

The court may disclose information contained in the court records that is the subject of an order of nondisclosure of criminal history record information only to: (1) criminal justice agencies for criminal justice or regulatory licensing purposes; (2) an agency or entity listed in Section 411.0765; or (3) the person who is the subject of the order.18 Under Section 411.0765, law enforcement entities may disclose criminal history record information that is the subject of an order of nondisclosure to other criminal justice agencies and the noncriminal justice agencies listed in subsection (b) of Section 411.0765.

Can a judge deny my petition for Nondisclosure?

Except for the “Automatic” nondisclosures under 411.072, you have to convince the court that it is in the best interest of justice to grant your Petition for and Order of Nondisclosure. Each category of nondisclosure requires the court to find that issuance of the order is in the best interest of justice. So yes, a judge may deny your petition if the court finds that issuance of the order is not in the best interest of justice.

In addition, if you have not provided the correct information or you have relied on the wrong category of eligibility or you have drafted the petition and order incorrectly, a court may not grant your petition. Of course, the court may also not grant your petition if you are not eligible. Learn more about the categories of eligibility

Is there a waiting period to petition the court for Nondisclosure?

There are waiting periods required before filing a petition for an order of nondisclosure under many circumstances. The applicable waiting period depends on the particular category of eligibility in addition to the type of offense.

For offenses occurring prior to September 1, 2015: there is a five-year waiting period (after discharge and dismissal) for felonies, and (2) there is a two-year waiting period for misdemeanors under Chapter 20, 21, 22, 25, 42, or 46, Penal Code; there are no waiting periods on other misdemeanors.19

For “automatic” nondisclosures under Section 411.072: there is a 180-day waiting period from the date of the beginning of community supervision.20

For standard nondisclosures under Section 411.0725 (offense date on or after September 1, 2015): there is a five-year waiting period (after discharge and dismissal) for felonies, and (2) there is a two-year waiting period for misdemeanors under Chapter 20, 21, 22, 25, 42, 43 or 46, Penal Code; there are no waiting periods on other misdemeanors.21 Note that Chapter 43 is included here, but not in the two-year waiting period under the old law.

For sex trafficking victim nondisclosures under Section 411.0728: there is no waiting period, but the conviction must have already been set aside.22

For nondisclosures after straight probation under Section 411.073: there is a two-year waiting period for misdemeanors under Chapter 20, 21, 22, 25, 42, 43 or 46, Penal Code; there are no waiting periods on other misdemeanors.23

For nondisclosures after confinement under Section 411.0735: there is a two-year waiting period after release from confinement.24

How much does it cost to petition the court for an Order of Nondisclosure?

County clerks are required to charge $28 “in addition to any other fee that generally applies to the filing of a civil petition” under most circumstances.25 However, the “automatic” nondisclosures under Section 411.072 do not allow the clerks to charge the additional fee.

Lawyers will also usually charge a fee to draft the documents. Do not try to do the petition for a nondisclosure on your own. Learn why here

What changed in the new law?

The new law added several additional categories of eligibility for orders of nondisclosure in addition to redesignating the existing code. The new categories of eligibility are only applicable to offenses occurring on or after September 1, 2015.26 Learn more about the additional categories added by the new nondisclosure law

The new law also excluded any offense where the court made an affirmative finding that the offense involved family violence.27 Additionally, the new law added two new types of employers to the list of noncriminal justice agencies who are eligible to receive records that are otherwise sealed by an order of nondisclosure: certain banks (designated at Section 411.0765(b)(30)) and certain businesses dealing with hazardous, explosive, combustible, or flammable materials (designated at Section 411.0765(b)(31)).


Legal References:

1 Acts 2015, 84th Leg., ch. 1279 (S.B. 1902), §32, eff. Sept. 1, 2015.

2 Texas Government Code Section 411.081(d)(West 2013)

3 Texas Government Code Section 411.081(e)(West 2013)

4 Texas Government Code Section 411.081(d)(West 2013)(requiring discharge & dismissal); Texas Government Code Section 411.081(d)(1) – (3)(West 2013)(requiring the statutory waiting time, see the waiting period section above)

5 Texas Government Code Section 411.081(e)(West 2013)

6 Texas Government Code Section 411.072(c)

7 Texas Government Code Section 411.072(a)(1)(A)&(B)

8 Texas Government Code Section 411.072(a)(1)&(2)

9 Texas Government Code Section 411.072(b)

10 Texas Government Code Section 411.0725(a)

11 Texas Government Code Section 411.0725(a)

12 Texas Government Code Section 411.0725(b)

13 Texas Government Code Section 411.0725(b)

14 Texas Government Code Section 411.0728(a)&(d)

15 Texas Government Code Section 411.0728(b)

16 Texas Government Code Section 411.073(a)&(b)

17 Texas Government Code Section 411.0735(a)&(b)

18 Texas Government Code Section 411.076

19 Texas Government Code Section 411.081(d)(1) – (3)(West 2013)

20 Texas Government Code Section 411.072(b)(1) – (2)

21 Texas Government Code Section 411.0725(b)(1) – (3)

22 Texas Government Code Section 411.0728(d)

23 Texas Government Code Section 411.073(d)(1) – (2)

24 Texas Government Code Section 411.0735(d)

25 Texas Government Code Section 411.0745(b); also Texas Government Code Section 411.081(f-1)(West 2013)

26 Acts 2015, 84th Leg., ch. 1279 (S.B. 1902), §32, eff. Sept. 1, 2015.

27 Acts 2015, 84th Leg., ch. 1279 (S.B. 1902), §1, Section 411.074(b)(2), eff. Sept. 1, 2015