NOTICE: These answers are provided as a public service and represent the District Attorney's good faith understanding of the Texas non-disclosure statute. They are not intended to substitute for independent legal analysis by an attorney in private practice, however. The District Attorney strongly urges anyone pursuing a petitions for non-disclosure to consult with an attorney of his or her own choice.
There is a common misconception that deferred adjudication records are removed from a defendant’s criminal history upon successful conclusion of the community supervision (probation) period. In fact, the law does not provide for automatic expunction of deferred adjudication records. The records do become part of the defendant’s “permanent record” and the arrest, court process and probation record will appear on a criminal background check.
Accordingly, unless there is a court order directing otherwise, records of a prosecution resulting in a deferred adjudication are publicly available in the District Clerk’s (Felony) and County Clerk’s (Misdemeanor) records, the Texas Crime Information Center database maintained by the Texas Department of Public Safety, and the National Crime Information Center maintained by the Department of Justice. In addition, the records of the arrest, investigation and jailing are on file with the investigating agency, with the agency that jailed or processed the Defendant upon arrest, and with the magistrate who set bond and conducted the initial appearance.
Under Certain Circumstance Deferred Adjudication Records Can Be Made NON-PUBLIC
There are two ways that deferred adjudication community supervision records can be made non-public:
Anyone who has ever committed any of the following offenses (including the offense for which the defendant got deferred adjudication) is not entitled to seek an order of nondisclosure:
Under Section 411.081(d), the defendant has to wait a certain period of time after the date of discharge and dismissal before filing a petition for an order of nondisclosure. The operative date is not the date that the defendant entered his plea: it is the date that the deferred adjudication was concluded.
Kind of offense | Waiting Period
All felonies – 5 years from date of discharge and dismissal.
The following misdemeanors: 2 years from date of discharge and dismissal
All other misdemeanors: May file immediately upon discharge and dismissal.
The Petition for Non-Disclosure must be filed in the Court that heard the original criminal case and should be filed under the same CRIMINAL case number.
The following information should be included in the Petition for Non-Disclosure:
o The original court and cause number in which the deferred adjudication was imposed.
o The date of the original plea of guilty or no contest.
o The offense for which the defendant was placed on deferred adjudication.
o The date upon which the court dismissed the proceedings and discharged the defendant from deferred adjudication community supervision.
Generally, the petition will be docketed for a hearing in the original court fourteen days after the date of filing. Do not miss the hearing date, or the petition may be dismissed for want of prosecution.
A defendant needs to be prepared to provide evidence of the following elements:
o The defendant entered a plea of no contest or guilty to the offense
o The Court placed the defendant on deferred adjudication community supervision.
o The Court dismissed the proceedings in this case and discharged the defendant from deferred adjudication community supervision.
o The defendant is not disqualified from filing a petition under Section 411.081(e).
o The petition was timely filed under Section 411.081(d).
o Issuance of the order is in the best interest of justice.
The Court will either sign an order granting the petition or denying the petition.
The court’s order will be sent to the Department of Public Safety. The Department of Public Safety will then send the order to all law enforcement agencies, jails or other detention facilities, magistrates, courts, prosecuting attorneys, correctional facilities, central state depositories of criminal records, and other officials or agencies or other entities of this state or of any political subdivision of this state, and to all central federal depositories of criminal records that there is reason to believe have criminal history record information that is the subject of the order. Those entities are obliged not to disclose the deferred adjudication record information to anyone other than: