FAQs
– Deferred Adjudication Nondisclosure Procedures
Caveat These answers are provided as
a public service and represent the District Attorney's good faith understanding
of the
Q. Are
deferred adjudication records public?
A. Yes. Although there is a common misconception that
deferred adjudication records are removed from a defendant's criminal history upon
successful conclusion of the community supervision (probation) period, the law
does not provide for automatic expunction of deferred adjudication records.
Accordingly, unless there is a court order directing
otherwise, records of a prosecution resulting in a deferred adjudication are
publicly available in the District Clerk's records and the Justice Information
Management System (JIMS) database maintained by Harris County, Texas.
Q. Can
deferred adjudication records be made non-public by request?
A. Yes,
in some instances. There are two ways
that deferred adjudication community supervision records can be made
non-public:
(1) Class
C deferred adjudications -- By filing an expunction under Article
45.051(e), Code of Criminal Procedure (if the Class C deferred adjudication was
imposed in justice court or municipal court); or by filing an expunction under
Article 55.01(a)(2), Code of Criminal Procedure (if the Class C deferred
adjudication was imposed in county or district court). Expunction is not available for
deferred adjudication sentences for Class B, Class A, or felony offenses.
(2) Petition
for nondisclosure – Under Section 411.081(d), Government Code, a
court can prohibit criminal justice agencies from disclosing to the public
criminal history record information related to certain offenses for which the
offender was placed on deferred adjudication.
There are many offenses, however, for which this procedure is
unavailable. Moreover, a defendant may
be disqualified if he commits an offense after the deferred adjudication has
been completed and before filing the petition.
Click here
for a link to Section 411.081(d) and here
for the link to the 2005 legislation amending the statute.
Q. Which
defendants are ineligible to seek an order of nondisclosure?
A. Under
Section 411.081(e)(1)-(4), Government Code, anyone who
has ever committed any of the following offenses (including as the
offense for which the defendant got deferred adjudication) is not entitled to
seek an order of nondisclosure.
Ø Indecency with a child
Ø Sexual assault
Ø Aggravated sexual assault
Ø Prohibited sexual conduct (incest)
Ø Aggravated kidnapping
Ø Burglary of a habitation with intent to commit any of
the above offenses
Ø Compelling prostitution
Ø Sexual performance by a child
Ø Possession or promotion of child pornography
Ø Unlawful restraint, kidnapping, or aggravated
kidnapping of a person younger than 17 years of age
Ø Attempt, conspiracy, or solicitation to commit any of
the above offenses
Ø Capital murder
Ø Murder
Ø Injury to a child, elderly individual, or disabled
individual
Ø Abandoning or endangering a child
Ø Violation of protective order or magistrate's order
Ø Stalking
Ø Any other offense involving family violence (click here for
the definition of "family violence")
Q. Which
defendants are disqualified from seeking an order of nondisclosure?
A. Any
defendant who, after the date of discharge and dismissal, has been convicted or
placed on deferred adjudication for any offense other than a traffic offense
punishable by fine only. See
Section 411.081(e), Government Code.
Q. When
is an otherwise eligible defendant allowed to seek an order of nondisclosure?
A. Under
Section 411.081(d), the defendant has to wait a certain period of time after
the date of discharge and dismissal before filing a petition for an order of
nondisclosure. The operative date is not
the date that the defendant entered his plea:
it is the date that the deferred adjudication was concluded.
Kind
of offense Waiting
Period
All
felonies 5 years
from date of discharge and dismissal.
The following
misdemeanors: 2 years
from date of discharge and dismissal.
Ø
Abuse of corpse
Ø
Advertising for
placement of child
Ø
Aiding suicide
Ø
Assault
Ø
Bigamy
Ø
Cruelty to
animals
Ø
Deadly conduct
Ø
Destruction of
flag
Ø
Discharge of
firearm
Ø
Disorderly
conduct
Ø
Disrupting
meeting or procession
Ø
Dog fighting
Ø
False alarm or
report
Ø
Harassment
Ø
Harboring runaway
child
Ø
Hoax bombs
Ø
Indecent exposure
Ø
Interference with
emergency telephone call
Ø
Leaving a child
in a vehicle
Ø
Making a firearm
accessible to a child.
Ø
Obstructing
highway or other passageway
Ø
Possession,
manufacture, transport, repair or
sale of switchblade knife or knuckles
Ø
Public lewdness
Ø
Riot
Ø
Silent or abusive
calls to 9-1-1 service
Ø
Terroristic threat
Ø
Unlawful carrying
of handgun by license holder
Ø
Unlawful carrying
weapons
Ø
Unlawful
possession of firearm
Ø
Unlawful
restraint
Ø
Unlawful transfer
of certain weapons
Ø
Violation of protective
order preventing offense
caused by bias or prejudice
All other
misdemeanors: May file immediately upon discharge
and dismissal.
Q. How
does one file the petition?
A. There
are three form petitions for nondisclosure of criminal history record
information available on this site:
·
Click here
for a petition for nondisclosure of felony deferred adjudication
records.
·
Click here
for a petition for nondisclosure of misdemeanor deferred
adjudication records in which the defendant must wait two years after
discharge and dismissal before filing.
·
Click here
for a petition for nondisclosure of misdemeanor deferred
adjudication records in which the defendant is immediately eligible to file
after discharge and dismissal.
In all of these petitions, you will need the following
information:
* The
original court and cause number in which the deferred adjudication was imposed.
* The
date of the original plea of guilty or no contest.
* The offense
for which the defendant was placed on deferred adjudication.
* The
date upon which the court dismissed the proceedings and discharged the
defendant from deferred adjudication community supervision.
This information is generally available from the District
Clerk's public service section on the third floor of the Criminal Justice
Center, 1201
Harris County District Clerk's Office
1201
Q. When
will the petition be heard?
A. Generally,
the petition will be docketed for a hearing in the original court fourteen
days after the date of filing. Do
not miss the hearing date, or the petition may be dismissed for want of
prosecution.
NOTE If filing a non-disclosure for a felony case, you need to obtain a hearing date from the court coordinator where your initial case was originally heard. Then, you will need to file your petition with the District Clerk's office.
Q. What
needs to be proven at the hearing?
A. A
defendant needs to be prepared to provide evidence of the following elements:
·
The defendant
entered a plea of no contest or guilty to the offense
·
The Court placed
the defendant on deferred adjudication community supervision.
·
The Court dismissed
the proceedings in this case and discharged the defendant from deferred
adjudication community supervision.
·
The defendant is
not disqualified from filing a petition under Section 411.081(e).
·
The petition was
timely filed under Section 411.081(d).
·
Issuance of the
order is in the best interest of justice.
The Court will either sign an order granting the
petition (click here for
the form order granting the petition) or denying the petition (click here
for the form order denying the petition). Please bring these forms with you to court
and fill in the pertinent identifiers and information regarding your deferred
adjudication.
Q. What is
the effect of the order of nondisclosure?
A. The
court's order will be sent to the Department of Public Safety. The Department of Public Safety will then
sends the order to all law enforcement agencies, jails or other detention
facilities, magistrates, courts, prosecuting attorneys, correctional
facilities, central state depositories of criminal records, and other officials
or agencies or other entities of this state or of any political subdivision of
this state, and to all central federal depositories of criminal records that
there is reason to believe have criminal history record information that is the
subject of the order. Those entities are
obliged not to disclose the deferred adjudication record information to anyone
other than
·
Other criminal
justice agencies
·
For criminal
justice or regulatory licensing purposes
·
An agency or
entity listed in Section 411.081(i) (click here for those agencies or entities;
scroll down to Section 3, creating subsection (i))
·
The person who is
the subject of the order.