I posted this to my website under Expunctions/Nondisclosures earlier today. I want to re-post it here, for a couple of reasons. First, it’s a great reminder that the law is organic—it moves forward, backwards, etc. all the time. Secondly, it’s a good reminder to all lawyers (especially newer lawyers) that you risk being ineffective if you don’t keep up to speed on changes to the law, and making sure your website is up to date as well. And finally, perhaps someone who reads this, and previously was not eligible to have their record sealed, now CAN have their record sealed. So here it as, as posted:
Sealing of Criminal Records
Be forewarned: this is confusing. Call (940) 323-9308 to discuss your case specifically, to determine if you are eligible to have your record sealed.
Standard Deferred
Where a person has successfully (1) completed deferred adjudication probation for an offense, (2) the charge has been dismissed and the person has been discharged from probation, and (3) the applicable waiting period has been observed, a person is eligible to petition the court to have his record sealed. The waiting period for all felonies is five years from the date of discharge and dismissal or the charge; and two years from the date of dismissal and discharge for misdemeanor offenses. Offenses such as assault, assault family violence, and unlawful carrying of a weapon that are excluded from automatic sealing, are eligible under Standard Deferred.
A person can have prior convictions or prior deferred probation to petition the court for sealing under Standard Deferred. The petitioner (person asking the court to seal his record) is required to show that sealing his record is in the best interests of justice.
The following new additions to the law concerning the sealing of records apply only (1) where a person has never been previously convicted or placed on deferred adjudication for another offense greater than a traffic citation punishable by a fine only; and (2) only to specific offenses.
Effective September 1, 2017, there are multiple situations wherein a person’s record can be sealed. The new changes apply to offenses committed on, before, or after September 1, 2017 (i.e. the application is retroactive in this respect.) Additionally, standard deferred exists for excluded offenses.
Automatic Sealing (Non-DWI) (no prior conviction or deferred)
Completion of deferred adjudication probation is grounds for automatic sealing for certain low-level offenses when the charge is dismissed following the end of the supervisory period, and the person has never been previously convicted or placed on deferred adjudication for another offense greater than a traffic citation punishable by a fine only.
There is no longer a waiting period where a person has successfully completed deferred probation under the automatic sealing changes. Section 2, 411.072 (b)(1)(2). Some offenses, such as assault family violence, unlawful carrying of a weapon, assault, unlawful restraint, and others, are excluded from eligibility under this section. However, such offenses remain eligible under Standard Deferred (see above). Offenses such as possession of marijuana, theft, and other misdemeanors are now eligible for automatic sealing under this section.
Once a person has been discharged from deferred under this section, and the charges have been dismissed the court shall automatically issue an order of nondisclosure.
DWI (Class B) Sealing (no prior conviction or deferred)
Following completion of probation for a Class B DWI, a person can petition the Court to have the person’s record sealed provided (1) the person has successfully completed probation, and (2) has never been previously convicted or placed on deferred adjudication for another offense greater than a traffic citation punishable by a fine only. Section 4, 411.0731.
What differs here is the applicable waiting period. If the person had ignition interlock on the person’s vehicle for at least six months as a condition of probation, the waiting period to petition for nondisclosure is two years from the date probation was completed. If the person completed probation, but did not have ignition interlock on the person’s vehicle as a condition of probation, the waiting period is five years from the date probation was completed. Section 4, 411.0731(f)(1)(2).
Time-Served Sealing (Non-DWI) (no prior conviction or deferred)
Now, sealing records is an option for some offenses where a person has done jail time, instead of probation. Section 5, 411.0735. Provided the person has (1) never been previously convicted or placed on deferred adjudication for another offense greater than a traffic citation punishable by a fine only; and (2) two years have passed since the person was released from jail, a person may now petition the court to have his record sealed. Section 5, 411.075(b)(2), (d)(2).
Time-Served Sealing (DWI) (no prior conviction or deferred)
There is a minor difference from the above where the offense the person received jail time for is a Class B DWI. However, the person might now still be able to have his record sealed. Section 6, 411.0736.
As with the previous section, the person must have never been previously convicted or placed on deferred adjudication for another offense greater than a traffic citation punishable by a fine only, and must wait the applicable time period. The waiting period where a person has agreed, as a condition of sentence, to have ignition interlock on the person’s vehicle for at least six months is three years following the completion of the sentence. If the person did not have ignition interlock as a condition of sentence, the applicable waiting period is five years from completion of the sentence.