The Eight Categories of Nondisclosure

After two revisions to the Nondisclosure statutes in 2015 and 2017, there are now eight separate categories of Nondisclosures. Each requiring some unique qualifications, usually dealing with a criminal history and how the charge to be Nondisclosed was resolved by the court. Regardless of the category, ALL Nondisclosures have two common qualifications: 1) No convictions or deferred adjudications for anything other than traffic violations from the time of sentencing of the crime to completion of the sentence, plus any applicable waiting period, and 2) No convictions or deferred adjudication for certain enumerated offenses. The list of enumerated criminal charges that are excluded from the Nondisclosure process includes, generally, kidnapping, murder, human trafficking, violations of protective orders, injuries to children, elderly or disabled, stalking and family violence. These two “Common Qualifications,” as we refer to them, are required for ANY Nondisclosure. The additional specific qualifications for each of the eight different categories of Nondisclosure are discussed below.

Category 1 – Automatic Nondisclosures

This first Category of Nondisclosures is designed for the first time and/or low-level criminal offenses. In addition to the Common Qualifications referenced above, a long list of criminal charges is excluded from consideration in this Category, including kidnapping and unlawful restraint, indecent exposure and unlawful photography, assault, deadly conduct, terroristic threat, bigamy, enticing a child, criminal nonsupport, violation of protective order, disorderly conduct, harassment, animal cruelty, prostitution, sexting, unlawful carrying of a weapon, prohibited weapons, and engaging in organized criminal activity. The second major qualification is that the petitioner can not have been previously convicted of or received deferred adjudication for ANY offense, other a fine-only traffic ticket. The third qualification is the successful completion of deferred adjudication and an order of discharge and dismissal. There is also a 180 day waiting period from the date deferred adjudication was ordered.

If the Common Qualifications and the 3 additional qualifications referenced above are met, the records can be Nondisclosed. Importantly, with this Category only, the Judge does NOT have to make a discretionary decision that a Nondisclosure “is in the best interest of justice.” If the qualifications are met, the Nondisclosure must be ordered.

Finally, one more unique feature of this particular Category is that the portion of the 2017 revisions making Nondisclosures “retroactive” does not apply. So, this Category applies when the Order of discharge and dismissal was signed on or after September 1, 2017, regardless of the offense date.

Category 2 – Nondisclosures after Deferred Adjudication

If the petitioner does not qualify for Category 1, we look next at Category 2. The requirements for Category 2, in addition to the Common Qualifications, are: 1) Successful completion of deferred adjudication with an order of discharge and dismissal; 2) Completion of a waiting period; 3) During the period of Deferred and the waiting period, no convictions or deferred adjudications for any offense other than fine-only traffic tickets; and 4) a finding by the judge that a Nondisclosure Order is in the best interest of justice.

The waiting periods are 5 years for any felony, and immediately for all misdemeanors, other than the following misdemeanors, which is 2 years, for misdemeanors in Texas Penal Code Chapters 20 (kidnapping and unlawful restraint), Chapter 21 (indecent exposure and unlawful photography), Chapter 22 (assault, deadly conduct, and terroristic threat), Chapter 25 ( bigamy, enticing a child, criminal nonsupport, and violation of protective order), Chapter 42 (disorderly conduct, harassment, and animal cruelty), Chapter 43 ( prostitution and sexting), and Chapter 46 (unlawful carrying of a weapon and prohibited weapons). The waiting periods start and are triggered by the order of discharge and dismissal, not completion of the deferral period.

Category 3 – Nondisclosures after Misdemeanor Community Supervision

Category 3 applies only to misdemeanors. No felony charges can be Nondisclosed with this Category. However, community supervision, or probation, does not have to be deferred. In other words, a conviction punished by probation can qualify in this category.

As with some of the other categories, there is a list of misdemeanors that are excluded from this Category, including offenses under Chapter 106 of the Texas Alcoholic Beverage Code (possession or consumption of or selling alcohol to minors), Texas Penal Code sections 49.04 (driving while intoxicated), 49.05 (flying while intoxicated), 49.06 (boating while intoxicated), 49.065 (operating an amusement park ride while intoxicated), and Texas Penal Code Chapter 71 (engaging in organized criminal activity).

In addition to the Common Qualifications, the other qualifications required by this category include 1) successful completion of community supervision (even if jail time was a condition) with an order of discharge and dismissal; and 2) completion of the waiting periods for misdemeanors as set forth in Category 2 above; 3) proof of no conviction or deferred adjudication for any offense other than a fine-only traffic offense, and 4) a finding by the judge that a Nondisclosure Order is in the best interest of justice.

Category 4 – Nondisclosures after Other Misdemeanor Convictions

Category 4 operates the same as Category 3, except that it applies to all types of misdemeanor convictions, not just the ones involving community supervision. So, this Category includes misdemeanor convictions where the punishment was jail time or fine only. Excluded from consideration of Nondisclosure in this Category are the same excluded misdemeanors listed in Category 3 with the addition of any offense that is “violent or sexual in nature.”

In addition to the Common Qualifications, the other qualifications required by this category include 1) proof of no conviction or deferred adjudication for any offense other than a fine-only traffic offense; 2) a finding by the judge that a Nondisclosure Order is in the best interest of justice and 3) completion of the waiting periods. The waiting periods are i) immediately upon completion of the sentence if the punishment was fine only; or ii) for all other offenses, 2 years from completion of the sentence.

Category 5 – Nondisclosures after DWI Community Supervision

This Category applies ONLY to Driving While Intoxicated convictions that were punished by community supervision. Excluded from this Category are DWI convictions where the Blood Alcohol Content exceeded .15 %. Also excluded, but only if the prosecutor raises the issue as an affirmative defense, is any offense resulting in a motor vehicle accident involving another person.

In addition to the Common Qualifications, the other qualifications required by this category include 1) successful completion of community supervision (even if jail time was a condition); 2) proof of no conviction or deferred adjudication for any offense other than a fine-only traffic offense; 3) a finding by the judge that a Nondisclosure Order is in the best interest of justice and 4) completion of the waiting periods. The waiting periods are i) 2 years if the petitioner had an ignition interlock device as a term of his community supervision for at least 6 months, or ii) 5 years if an ignition interlock device was not a condition of community supervision.

Category 6 – Nondisclosures after DWI Convictions Without Community Supervision

This Category applies ONLY to Driving While Intoxicated convictions that were punished by a jail sentence. Like Category 5, excluded from this Category are DWI convictions where the Blood Alcohol Content exceeded .15 %. Also excluded, but only if the prosecutor raises the issue as an affirmative defense, is any offense resulting in a motor vehicle accident involving another person.

In addition to the Common Qualifications, the other qualifications required by this Category include: 1) proof of no conviction or deferred adjudication for any offense other than a fine-only traffic offense 2) a finding by the judge that a Nondisclosure Order is in the best interest of justice; 3) payment of all fines, court costs and restitution; and 4) completion of the waiting periods. The waiting periods are i) 3 years if the petitioner had an ignition interlock device as a term of his community supervision for at least 6 months; or ii) 5 years if an ignition interlock device was not a condition of community supervision.

Category 7 – Nondisclosures after Completing Veteran’s Court

This Category of Nondisclosure applies to those who have completed a Veterans Court Program. This Category applies regardless of whether the charge resulted in a conviction or successful deferred adjudication. Excluded from this Category are DWI’s and any “sexually violent offense.

In addition to the Common Qualifications, the other qualifications required by this category include 1) a finding by the judge that a Nondisclosure Order is in the best interest of justice; and 2) completion of the waiting period, which is 2 years from completion of the Veterans Court Program.

Category 8 – Nondisclosures for Human Trafficking Victims

This category applies only to people sentenced to straight probation for convictions of Class B or Class C theft, prostitution, promotion of prostitution, or Class B possession or delivery of marijuana. The probation must have been successfully completed and then set aside under the Code of Criminal Procedure, Article 42A.701.

In addition to the Common Qualifications, the other qualifications required by this category include 1) proof of no other Nondisclosures; 2) a finding by the judge that a Nondisclosure Order is in the best interest of justice; and 3) a finding by the judge that the offense was committed solely as a victim of human trafficking.