Law Office of Paul B. Kennedy, Attorney at Law, PLLC
1415 North Loop West, Suite 102, Houston, Texas 77008
Tel: (713) 864-9727  Fax: (866) 587-2584
DWI Defense, Criminal Defense, Traffic Tickets, Family Law
What is the difference between an Expunction and
an Order for Nondisclosure?
Having a criminal record expunged is the equivalent of having it
erased with one exception. When a judge signs an
Order of
Nondisclosure
he is telling the arresting law enforcement agency that
they may not disclose any records regarding a particular arrest
except
to other law enforcement agencies, state licensing agencies and other
agencies designated by statute.

A person who was arrested for an alleged criminal offense is eligible
for to have all records and files related to that arrest
expunged if he or
she is acquitted at trial or if the case is no-billed or dismissed and the
statute of limitations for the offense charged has expired.

The Texas Department of Public Safety will oppose any request for an
expunction based upon a dismissal if the statute of limitations for that
offense has not yet expired. This holds true for Class C special
expense fees, too.

A person who has had a criminal record expunged may deny ever
having been arrested for the offense under oath -- except if asked
under oath in a criminal proceeding (to which the person need only
testify that the matter was expunged).

A Petition for Expunction must be served on every law enforcement
agency that participated in the investigation, detention, arrest and/or
trial of the applicant. This also includes the district or county clerk's
office. The Petition should also be served on the Texas Department of
Public Safety and the Federal Bureau of Investigation as they will have
entered tracking information in their computerized databases that
would still be available unless they are order to delete the material.

A person is eligible for an
Order of Nondisclosure if he or she
completed successfully the terms of a deferred adjudication probation
and the person was not charged with an offense specified in Section
411.081(e) of the Texas Government Code.

A Petition for Nondisclosure must be served on the local criminal
district attorney's office (or county attorney in some instances).

In Texas, if a person was convicted of a criminal offense, either at trial
or through a plea of no contest or guilty, it is not possible to remove
that conviction from one's record (with the exception of some Class C
misdemeanor offenses).

Even with an expunction or an Order of Nondisclosure, material
related to one's arrest may still be available through an on-line data
base maintained by a private company. This can happen because the
on-line companies purchase their database information from state
and federal agencies and there may be a lag between the signing of
an order and the updating of the on-line database. Once the on-line
database has received actual notice of the order, however, they are
required to remove the material from their databases.
When is a Nondisclosure not a Nondisclosure?
Even though a judge signs an Order of
Nondisclosure preventing the arresting law
enforcement agency from releasing any information
about your arrest to anyone outside of law
enforcement, Section 411.081(i) of the Texas
Government Code allows law enforcement to release
otherwise "nondisclosed" criminal information to the
following agencies:


  1. The State Board for Education Certification;
  2. A school district, charter school, private
    school, regional education service center,
    commercial transportation company or
    education shared service arrangement;
  3. The Texas Medical Board;
  4. The Texas School for the Blind & Visually
    Impaired;
  5. The Board of Law Examiners;
  6. The State Bar of Texas;
  7. A district court regarding a petition for name
    change;
  8. The Texas School for the Deaf;
  9. The Department of Family & Protective
    Services;
  10. The Texas Youth Commission;
  11. The Department of Assistive & Rehabilitative
    Services;
  12. The Department of State Health Services, a
    local mental health service, a local mental
    retardation authority or a community center
    providing services to persons with mental
    illness/retardation;
  13. The Texas Private Security Board;
  14. A municipal or volunteer fire department;
  15. The Texas Board of Nursing;
  16. A safe house providing shelter for children in
    harmful situations;
  17. A public or nonprofit hospital or hospital
    district;
  18. The Texas Juvenile Probation Commission;
  19. The securities commissioner, the banking
    commissioner, the savings and mortgage
    lending commissioner or the credit union
    commissioner;
  20. The Texas State Board of Public Accountancy;
  21. The Texas Department of Licensing &
    Regulation;
  22. The Health & Human Services Commission;
  23. The Department of Aging & Disability Services;
    and
  24. The Texas Education Agency.
Who's Eligible for an Expunction?
Who's Eligible for an Order of Nondisclosure?
MISDEMEANORS

The applicant has been released and:
  1. The charge, if any, has not resulted in a final
    conviction and is no longer pending;
  2. There was no court-ordered supervision
    under Art. 42.12 of the Code of Criminal
    Procedure; and
  3. The applicant has not been convicted of a
    felony within the five years preceding the date
    of arrest.

FELONIES

1. No indictment or information charging the
applicant with the commission of a crime was
presented; or
2. The applicant was no-billed or the charge was
dismissed and (a) the statute of limitations for the
offense has expired or (b) the charge was dismissed
as a result of lack of probable cause, mistake or
false information.

The applicant must have been released and the
charge must not have resulted in a final conviction
and cannot be pending. There must not have been
any court-ordered supervision under CCP 42.12 and
the applicant must not have been convicted of a
felony in the five years preceding the arrest.

ACQUITTALS AND PARDONS

1. The applicant was acquitted at trial;
2. The applicant was convicted and pardoned; or
3. The applicant was convicted and then acquitted
on appeal to the Texas Court of Criminal Appeals
An applicant who completed a deferred adjudication
probation for a misdemeanor offense is eligible for an
Order of Nondisclosure anytime on or after the date of
discharge, EXCEPT:

An applicant is NOT eligible for an Order of Nondisclosure
until the second anniversary of the date of discharge for the
following misdemeanor offenses under the Texas Penal
Code:

  1. Chapter 20 (kidnapping and unlawful restraint);
  2. Chapter 21 (sexual offenses);
  3. Chapter 22 (assaultive offenses);
  4. Chapter 25 (offenses against the family);
  5. Chapter 42 (disorderly conduct and related
    offenses); or
  6. Chapter 46 (weapons offenses).

An applicant who completed a deferred adjudication
probation for a felony offense is eligible for an Order of
Nondisclosure anytime on or after the fifth anniversary of
the date of discharge, EXCEPT:

An applicant is NOT eligible for an Order of Nondisclosure
if convicted and placed on deferred adjudication probation
for the following felony offenses under the Texas Penal
Code:

  1. An offense requiring registration as a sex offender
    under Chapter 62 of the Code of Criminal
    Procedure;
  2. Aggravated kidnapping;
  3. Murder;
  4. Capital Murder;
  5. Abandoning or endangering a child;
  6. Violation of a protective order or a magistrate's
    order;
  7. Stalking; or
  8. Any offense involving family violence as defined by
    Section 71.004 of the Texas Family Code.