Motions For Non-Disclosure

Petition For Non-Disclosure of Criminal History Record Information

By: Robert M. Moore
Copyright 9/5/09

Texas Government Code Section 411.081 sets out the details which must be met in order to be eligible to obtain an Order "prohibiting all Criminal Justice agencies from disclosing to the public criminal record information related to the offense for which Petitioner successfully completed Deferred Adjudication Community Supervision".

Under this statute the Petitioner must show that it is in the best interest of justice that such an order be entered by the Court.

The requirements to effectively obtain such an Order For Non-Disclosure are complex, detailed, and vary according to the type of offense involved for which such an order is being sought. There are different standards for Felonies and Misdemeanors and various requirements for being ELIGIBLE. There are some felonies and some Class "A" and Class "B" Misdemeanors for which this relief is not available. Those will be discussed with a potential client and they are set out specifically in the Statute.

Assuming one is ELIGIBLE under the statute, the Petitioner must wait five (5) years after a successful discharge and Dismissal of the charge following an ORDER allowing a Deferred Adjudication in a FELONY case before filing a Petition for Non-Disclosure. This Petition must be filed in the same court that granted the Deferred Adjudication, and then subsequently entered an ORDER OF Dismissal.

Assuming one is ELIGIBLE under the statute, the Petitioner must wait two (2) years in some Class "A" or Class "B" Misdemeanors after a successful discharge and dismissal following an Order granting a Deferred Adjudication. This Petition For Non-Disclosure must be filed in the same court that granted the Deferred Adjudication and/or a Dismissal.

For all non-restricted Class "A" or "B" Misdemeanors, there is no waiting period required to file a PETITION FOR NON-DISCLOSURE.

Some Distinctions Between Expungements and Orders For Non-Disclosure

The two statutes and procedures outlined above are as different as "night and day" and "apples and oranges". Lay people and lawyers alike are usually confused concerning the net result that will be achieved in the two procedures, and confused as to which procedure is available or appropriate for a client.

Some of the distinctions between these two (2) Procedures are as follows:

1. An Expungement has the net effect of requiring all records and all written documents of any kind to be shredded and totally destroyed by all police, governmental and private agencies once they are served with an Order For Expungement. This is not true for an Order For Non-Disclosure, where the records remain unchanged.

2. When a Criminal Justice agency receives an ORDER FOR NON-DISCLOSURE of Criminal Information - they are legally prohibited by Court Order from turning that information over either in written form or verbally to credit reporting agencies, private investigators, and other public record searchers where potential employers may be checking the status of a potential employee's Criminal History. The Criminal Justice Governmental agencies do not have to destroy their records. But they cannot communicate their information in any form to non-governmental agencies-to the public.

3. Cases where a defendant received Deferred Adjudication/Community Supervision and then a Dismissal of the charge, cannot be expunged, except in CLASS "C" MISDEMEANOR cases. A PETITION FOR NON-DISCLOSURE is the only available action, absent a pardon for the Governor.

4. After an Order of Expungement is obtained, the applicant answering any questions either on a formal application and/or verbally may honestly and legally answer NO to the

question of whether or not he has ever been "arrested" of the crime, but only if the records of that crime have been legally expunged by a court order. The statute gives this right and the person is not subject himself or herself to discipline or sanctions of any kind, nor perjury, even though such an arrest may have been a real event in his or her life. An exception to this right is when that person is questioned under oath in a criminal proceeding about an arrest for which the records have been expunged, may state only that the matter in question has been expunged.

This is not true and cannot be done where a person merely obtains an Order For Non-Disclosure.

Conclusion

Many people have made mistakes during their lives, recover from their mistakes, and go on to live crime free lives that make them more eligible for employment, or may help them become qualified for certain professional licenses, or promotions.

Vetting processes and procedures where a potential employer or agency is interested in either hiring or promoting an individual are always certain to make inquiries on applications and/or in personal interviews about a person?s Criminal History.

Depending on the severity of any crime, the criminal history of an individual becomes an important factor in determining his or her eligibility for becoming hired and/or promoted, depending on the job involved and who the employer may be, whether private, or institutional, such as schools and hospitals, or local, state, or federal governmental agencies.

Keep in mind that reporting agencies such as Credit Bureaus may already have had your record on file before an Expungement or Non-Disclosure Order has been effected and they will have to be named and specifically included in both the PETITIONS and ORDER OF EXPUNGEMENT or ORDER FOR NON-DISCLOSURE, and specifically served in both instances.

The above is presented as only a simple and preliminary "overview" presentation of these two most important PRACTICE PROCEDURES which I continue to practice to help people who deserve to advance in their lives, and not be unfairly restricted in their efforts to advance their lives and potential careers.

See resource link: Texas Government Code Section 411.081