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THE DIFFERENCE BETWEEN EXPUNCTION AND NONDISCLOSURE ORDERS

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In the practice of law, I am asked questions on Expunctions and Non Disclosures on an almost daily basis. Many people are confused by the two. An Expunction Order and an Order of Non Disclosure are two very different legal remedies, with different eligibility requirements.

Though this article cannot be a comprehensive legal guide, I want to explain the basic differences between Expunctions and Non Disclsoure.

EXPUNCTION ORDERS

The right to an Expunction Order is regulated by Chapter 55 of the Texas Code of Criminal Procedure. As a general matter, there are three ways one may become eligible to expunge one’s criminal history record. First, one is formally charged by information and indictment, a trial is conducted and the person is acquitted (found not guilty). Second, the charge is either filed and dismissed or never filed, and the statute of limitations runs out. Third, a person is placed on deferred adjudication for a Class C offense.

In most instances, if you fall into one of the above categories, you will be eligible to expunge the record. An expunction order is a Court order signed by a District Judge and sent to any “entity” that has information about the criminal record you seek to expunge. The Order directs each entity to either destroy the record or return it to the District Clerk.

When a person has their record expunged they are lawfully entitled to deny the arrest and the existence of the expunged record.

ORDERS OF NON DISCLOSURE

A person’s eligibility to obtain an Order of Non Disclosure is regulated by the Texas Government Code section 411.081.  In order to obtain a Non Disclosure Order the following must be true.  The person was placed on Deferred Adjudication and successfully completed the supervision period.   Not all offenses are eligible for Orders of Non Disclosure and even some misdemeanors that are eligible offenses have waiting periods.  

All felony Non Disclosures have a five year waiting period following discharge from supervision before one is eligible to seek a Non Disclosure Order. 

When a person obtains a Non Disclosure order, the Court order is sent to the public entities are they are prohibited from further disclosing the criminal record that is the subject of the non disclosure order.  Unlike an Expunction Order, the entities are not ordered to either return or destroy the record, but rather they are prohibited from further disclosing the fact of the record’s existence it to third parties.

An Order of Non Disclosure should generally prevent the general public from accessing one’s criminal history record that has been Non Disclosed, but it will not be destroyed by law enforcement and will be accessible by law enforcement in the future.  In addition, certain agencies that regulate the licensure of occupations in Texas will be able to access the Non Disclosed criminal record.