Like expunctions, orders of non-disclosure can prevent the disclosure, from the general public, of the existence of a criminal record. Many entities, however, may still be able to access these records. There are two main differences between an expunction and an order of non-disclosure:
1. Like many things involving court proceedings, the granting or denial of a request for non-disclosure is within the judge’s discretion. This means that even if a person is eligible for a non-disclosure, the court may choose to deny the request. While this may happen, it doesn’t happen often if the issues which may lead to a denial are sufficiently addressed in advance.
2. While the order granting non-disclosure keeps the general public from seeing the record, many entities can still have access to those records. These entities include law enforcement, the district attorney’s office, schools, hospitals, and many state licensing agencies, including, but not limited to, the Texas Education Agency, Texas Board of Nursing, and the Texas Department of Licensing and Regulation.
Under most circumstances, a person is eligible for non-disclosure only after successfully completing a period of deferred adjudication community supervision and the expiration of the appropriate waiting period (up to five years in some cases). However, some exceptions exist. A person is not eligible for a non-disclosure if he or she has ever been convicted or placed on deferred adjudication for an offense of kidnapping, murder, injury to a child, elderly, or disabled person, was a violation of a protective order, an offense involving family violence, or if the offense required registration as a sex offender.
Requesting a Non-disclosure
The process of requesting a non-disclosure is fairly simple. The first step is filing a petition in the same court with which the criminal charge was filed. This includes a filing fee of around $250-300, which may vary from county to county. Once the petition has been filed and the district attorney’s office has notice of the petition, you can set the matter for hearing. Generally, this hearing will take place within a few weeks of the petition being filed. At the hearing, you would need to show to the court that you are eligible for a non-disclosure, and that a non-disclosure of your records would be “in the best interest of justice.”
Some factors that may influence the judge’s decision are (1) whether the person successfully complied with all of the conditions of community supervision (which may include the payment of all fees, and completion of community service hours or any court-ordered classes), (2) the amount of time that has elapsed since community supervision ended, (3) the overall criminal history, (4) the facts in the underlying case, and (5) any effect that not sealing the records might have on the person in the future. Having an attorney argue your case on your behalf can be a big advantage at this hearing.
If the judge finds that you are eligible and that a non-disclosure would be in the best interest of justice, the judge will sign the order of non-disclosure. From the date the order is signed, it may take 3-5 weeks for the records to actually be sealed from the general public.