Understanding Expunction vs. Non Disclosure
We all make mistakes, but for some of us, those mistakes can have long-term consequences.
If you’ve made bad decisions and been convicted of a crime, you can find that error in judgment haunting you every time you apply for a job, look for housing, or get pulled over for a minor traffic violation. The state of Texas offers many criminal defendants a second chance, an opportunity to get out from under the burden of a criminal record. There are two ways to do that—expunction and nondisclosure. The eligibility for each is different, as are the effects. Let’s examine them both.
The Fundamental Difference between Expunction and Nondisclosure
When you successfully have a criminal record expunged, it essentially goes away. It is no longer accessible or available for viewing by the public, including prosecutors and judges. Any record of the arrest, charges filed, criminal proceedings, convictions and penalties are deleted from criminal justice databases.
A nondisclosure order, on the other hand, simply seals your criminal record, so that it is no longer a matter of public record (and won’t show up on a background check). When your criminal record is sealed, the arrest, charges, criminal proceedings, conviction and punishment will still be available to certain government and public agencies and may be accessible to professional licensing board.
When Can You Have a Criminal Record Expunged?
Expunction is available in limited situations, including:
- Where your case did not result in a final conviction and is not actively being prosecuted in any court
- Where the court ordered a dismissal of the charges for any reason, including lack of evidence or probable cause, the completion of a diversionary program, or other reason
If the court orders probation for the offense or if you are on deferred adjudication for the charge, you cannot seek expunction. Furthermore, if an indictment has been filed, a criminal record may generally not be cleared, unless the prosecutor recommends expunction to the court.
With expunctions, there is typically a waiting period before the request can be filed. Misdemeanors may require anywhere from 180 days to one year, and felonies typically can only be expunged after three years.
When Can a Criminal Record Be Sealed?
Nondisclosure is only available if your case has been dismissed—you cannot have a conviction sealed. Certain crimes may not be eligible for nondisclosure, including many sex offenses, homicide, domestic and family violence, and kidnapping.
For most misdemeanors, a person can file for nondisclosure immediately upon the dismissal of charges. A few serious misdemeanors have a waiting period—typically two years—and felony charges may only be sealed after five years.
How Do You File For Expunction or Nondisclosure?
To initiate the process, you must file an Application for Expunction in the county where you were arrested. A valid fingerprint card must accompany the application. You will then receive a notice of a court hearing, which will be held at least 30 days after the date you filed the application.
To secure a nondisclosure order, you must file a Petition for Nondisclosure with the court. The prosecutor must request a hearing within 45 days of the filing. If that doesn’t happen, and you meet the criteria, the court may grant your request.
Contact the Aggressive Criminal Defense Lawyers at Bailey & Galyen
At the law office of Bailey & Galyen, we offer a free initial consultation to every client. For an appointment with a proven and results-oriented criminal defense attorney, contact us by e-mail [Link to Contact Page] or call our offices at one of the convenient locations listed below. We will take your call 24 hours a day, seven days a week.
