Expunction vs. Nondisclosure of Criminal Records

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The two main differences between an expunction and a nondisclosure concern the eligibility requirements and the result of the court’s order for each.

An expunction is the preferred method of shielding the public from seeing you were arrested or charged with a crime because the criminal episode is erased from the books in its entirety.  An expunction results in the destruction of all references and records of the case from public records, and the DPS also requests any federal depository to return and destroy them.  The court’s record of the expunction is destroyed 60 days to one year after order is issued.  There are five main reasons you may qualify to have your case expunged:

1. A jury or a judge found you not guilty of the crime.  You are immediately eligible to have all records from your case expunged if you are found not guilty of the crime, and there are no other charges still pending that arose from the same criminal episode.

2. Your case was dismissed, and the statute of limitations period expired.  This often occurs when you exercise your right to a trial, and the state then decides to dismiss the case rather than proceeding to trial.

3. Your case was dismissed after completing a pretrial intervention program.  Many counties offer programs to first-time offenders where the charges will be dismissed after the offender completes an awareness class, completes some community service and/or passes a few drug tests.  The offender never goes in front of a judge to enter a plea, and the offender is not on any sort of court-ordered probation.  You are immediately eligible to have your record expunged after completing a pretrial intervention program.

4. You completed deferred adjudication community supervision under Texas Code of Criminal Procedure, Article 42.12, Section 5 for a class c misdemeanor.  There are two scenarios:  

  • If you were originally charged with a class c misdemeanor you are immediately eligible for an expunction of the records upon completion of the deferred adjudication probation.  A common example of a class c deferred adjudication involves paying a small fine for an offense such as public intoxication and then promising the court you will not get in any further trouble for a period of a few months.
  • If, as part of a plea bargain, the state agreed to reduce the charge to a class c misdemeanor, you must successfully complete the deferred adjudication probation and then wait for the statute of limitations period of two years to expire before becoming eligible for an expunction of the criminal records.

5. You were arrested but never formally charged by information or indictment, and the statute of limitations period expired. 

  • Regarding misdemeanor charges, this scenario often occurs when you are arrested, but you never receive a court date. 
  • Regarding felony charges, this scenario occurs when the grand jury determines there is not enough evidence to sustain the charge and returns a no bill finding.

A nondisclosure is similar to an expunction, but the record is sealed rather than destroyed.  For most types of offenses, if you have successfully completed deferred adjudication community supervision under Texas Code of Criminal Procedure, Article 42.12, Section 5 for a felony or a misdemeanor class a or b, you may be eligible to have your records sealed by petitioning the court for non-disclosure of your criminal records.  Once sealed, you will be able to honestly say that you do not have a criminal conviction.  The State will only be allowed to disclose information about the case to other criminal justice agencies for criminal justice or regulatory licensing purposes or any agency or entity listed in Texas Government Code, Section 411.081.

To receive an order of nondisclosure you must first successfully complete the deferred adjudication community supervision.  Then you must not be found guilty of any other criminal offenses during the waiting period.  Unlike an expunction, eligibility requires that you stay out of trouble during a statutorily-designated waiting period.  Waiting periods vary depending on the type of offense.  The chart below shows how long you must wait to get your record sealed after completing deferred adjudication community supervision for the most common types of offenses:

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