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Wednesday, July 23, 2008 |
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Yes. Although 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, the law does not provide for automatic expunction of deferred adjudication records.
Yes, in some instances. There are two ways that deferred adjudication community supervision records can be made non-public:.
(1) Class C deferred adjudications -- By filing an expunction under Article 45.051(e), Code of Criminal Procedure (if the Class C deferred adjudication was imposed in justice court or municipal court); or by filing an expunction under Article 55.01(a)(2), Code of Criminal Procedure (if the Class C deferred adjudication was imposed in county or district court). Expunction is not available for deferred adjudication sentences for Class B, Class A, or felony offenses.
(2) Petition for nondisclosure – Under Section 411.081(d), Government Code, a court can prohibit criminal justice agencies from disclosing to the public criminal history record information related to certain offenses for which the offender was placed on deferred adjudication. There are many offenses, however, for which this procedure is unavailable. Moreover, a defendant may be disqualified if he commits an offense after the deferred adjudication has been completed and before filing the petition. Click here for a link to Section 411.081(d) and here for the link to the 2005 legislation amending the statute.
Under Section 411.081(e)(1)-(4), Government Code, anyone who has ever committed any of the following offenses (including as the offense for which the defendant got deferred adjudication) is not entitled to seek an order of nondisclosure.
- Indecency with a child
- Sexual assault
- Aggravated sexual assault
- Prohibited sexual conduct (incest)
- Aggravated kidnapping
- Burglary of a habitation with intent to commit any of the above offenses
- Compelling prostitution
- Sexual performance by a child
- Possession or promotion of child pornography
- Unlawful restraint, kidnapping, or aggravated kidnapping of a person younger than 17 years of age
- Attempt, conspiracy, or solicitation to commit any of the above offenses
- Capital murder
1) An act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself
2) Physical injury by a member of a family or household toward a child of the family or household that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm
3) Sexual conduct by a member of a family or household toward a child of the family or household harmful to a child's mental, emotional, or physical welfare, including conduct that constitutes the offense of indecency with a child under Section 21.11, Penal Code, sexual assault under Section 22.011, Penal Code, or aggravated sexual assault under Section 22.021, Penal Code
4) Conduct by a by a member of a family or household toward a child of the family or household compelling or encouraging the child to engage in sexual conduct as defined by Section 43.01, Penal Code; or
5) Dating violence, e.g. an act by an individual that is against another individual with whom that person has or has had a dating relationship and that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the individual in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.
- Murder
- Injury to a child, elderly individual, or disabled individual
- Abandoning or endangering a child
- Violation of protective order or magistrate's order
- Stalking
- Any other offense involving family violence (click here for the definition of "family violence").
Any defendant who, after the date of discharge and dismissal, has been convicted or placed on deferred adjudication for any offense other than a traffic offense punishable by fine only. See Section 411.081(e), Government Code.
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.
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All felonies -- 5 years from date of discharge and dismissal.
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The following misdemeanors -- 2 years from date of discharge and dismissal.
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- Abuse of corpse
- Advertising for placement of child
- Aiding suicide
- Assault
- Bigamy
- Cruelty to animals
- Deadly conduct
- Destruction of flag
- Discharge of firearm
- Disorderly conduct
- Disrupting meeting or procession
- Dog fighting
- False alarm or report
- Harassment
- Harboring runaway child
- Hoax bombs
- Indecent exposure
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- Interference with emergency telephone call
- Leaving a child in a vehicle
- Making a firearm accessible to a child.
- Obstructing highway or other passageway
- Possession, manufacture, transport, repair or sale of switchblade knife or knuckles
- Public lewdness
- Riot
- Silent or abusive calls to 9-1-1 service
- Terroristic threat
- Unlawful carrying of handgun by license holder
- Unlawful carrying weapons
- Unlawful possession of firearm
- Unlawful restraint
- Unlawful transfer of certain weapons
- Violation of protective order preventing offense caused by bias or prejudice
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All other misdemeanors -- May file immediately upon discharge and dismissal.
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Click here for a petition for nondisclosure of felony deferred adjudication records.
Click here for a petition for nondisclosure of misdemeanor deferred adjudication records in which the defendant must wait two years after discharge and dismissal before filing.
Click here for a petition for nondisclosure of misdemeanor deferred adjudication records in which the defendant is immediately eligible to file after discharge and dismissal).
In all of these petitions, you will need the following information:
- The original court and cause number in which the deferred adjudication was imposed.
- The date of the original plea of guilty or no contest.
- The offense for which the defendant was placed on deferred adjudication.
- The date upon which the court dismissed the proceedings and discharged the defendant from deferred adjudication community supervision.
This information is generally available from the District Clerk's public service section on the third floor of the Criminal Justice Center, 1201 Franklin (713-755-5734). Fill in the blanks or retype the petition with this information and submit it to the District Clerk's criminal public service section with a $240.00 filing fee. If mailing in your petition, please include a cashier's check or money order for $240.00 and mail to:
Harris County District Clerk's Office
1201 Franklin, 3rd Floor
Houston, Texas 77002
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
- The defendant entered a plea of no contest or guilty to the offense.
- The Court placed the defendant on deferred adjudication community supervision.
- The Court dismissed the proceedings in this case and discharged the defendant from deferred adjudication community supervision.
- The defendant is not disqualified from filing a petition under Section 411.081(e).
- The petition was timely filed under Section 411.081(d).
- Issuance of the order is in the best interest of justice.
The Court will either sign an order granting the petition (click here for the form order granting the petition) or denying the petition (click here for the form order denying the petition). Please bring these forms with you to court and fill in the pertinent identifiers and information regarding your deferred adjudication.
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:
- Other criminal justice agencies.
- For criminal justice or regulatory licensing purposes.
- An agency or entity listed in Section 411.081(i) (click here for those agencies or entities; scroll down to Section 3, creating subsection (i)).
- The defendant is not disqualified from filing a petition under Section 411.081(e).
- The person who is the subject of the order.
The trial court cause number is the number assigned by the District Clerk's Office to a particular case filed against a particular defendant. With this number, the prosecutor assigned to the case will be able to easily locate the case in the system.
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