November-December 2015

Now what? A guide to the new nondisclosure law

Andrea L. Westerfeld

Assistant Criminal­ ­District Attorney in Collin County

An attempt to summarize the changes made to Government Code §411.081(d) and help prosecutors through potential new pitfalls.

It was confusing, but it was ours. The nondisclosure statute of Government Code §411.081(d) was certainly not a model of clarity, but after more than a decade of using it, we had generally figured out what was required and how to respond to petitions for nondisclosure. Then in the 84th Regular Session, the Texas Legislature proposed a number of new bills to drastically change both expunctions and nondisclosures. Many of those bills were (thankfully) vetoed, but what passed was sufficient to change the nondisclosure landscape significantly. This article will attempt to summarize the changes made to the law and alert prosecutors to potential new pitfalls.

When does (did) the law come into effect?
The most important thing to know about any new law is when it becomes effective. The nondisclosure changes have an effective date of September 1, 2015, but don’t panic yet. The new statute applies only to offenses occurring on or after September 1, 2015, not petitions filed after that date.1 For any offenses occurring before September 2015, regardless of when the petition is filed, the old law will continue to apply. This gives us all a little breathing room to figure out the new statute before it is applicable.
    The new nondisclosure statute has been spun out of §411.081(d) and now has spread over several sections of the Government Code, §411.071–077. Note that §411.081(d) was not repealed and continues to exist for the purposes of offenses occurring before September 1, 2015.

Base ­requirements for all ­nondisclosures
Although there are a number of new categories of nondisclosures, there are two base requirements that apply to every nondisclosure under the new law. If the petitioner cannot meet these requirements, then she is not eligible for a nondisclosure.
    First, the petitioner cannot have been convicted or placed on deferred adjudication for any offense (other than a fine-only traffic violation) at any time after the sentence was pronounced through any applicable waiting period.2 Thus, if Nancy gets deferred adjudication on a case, but two months later she is convicted on another offense, she will not be able to get an order of nondisclosure on the deferred. The relevant consideration is when the person was actually convicted or placed on deferred, not the offense date. So if Nancy is charged with one offense in January, gets deferred on a second offense in May, and is not sentenced for the first offense until August, that offense will block her from receiving a nondisclosure on the deferred. If she pleaded to the January offense in April, however, that would not block a nondisclosure on the deferred because the plea occurred before she was placed on deferred.
    The second base requirement is that the petitioner has never been convicted or placed on deferred for any offense out of a certain list.3 This list includes any offense requiring registration as a sex offender, any case involving family violence, and any offenses under Penal Code §§19.02 (murder), 19.03 (capital murder), 20.04 (aggravated kidnapping), 20A.02 (trafficking of persons), 20A.03 (continuous trafficking of persons), 22.04 (injury to a child, elderly, or disabled), 22.041 (abandoning or endangering a child), 25.07 (violations of bond in family violence cases), 25.072 (repeated violations of bond in family violence cases), and 42.072 (stalking). This applies both to the offense which the person is seeking to have nondisclosed and any other offense in his criminal history. So if Joe received deferred adjudication on a family violence case, he is not eligible to have that case nondisclosed. But he would also be ineligible to have any future case nondisclosed because of the family violence case in his criminal history. Note that the statute applies to any case “involving family violence,” not merely to cases where there was an affirmative finding of family violence. Thus, if Joe received deferred adjudication on an assault without an affirmative finding of family violence, a future court could still look at the case to determine if it involved family violence and thus renders him ineligible for nondisclosure.

Five (yes, five) categories of nondisclosure
Once the petitioner has met the two base requirements, he then must fit into one of the five new categories of nondisclosure. If the petitioner does not meet the requirements of any of the five categories, then he is not entitled to an order of nondisclosure. And yes, this means we have to do five times the amount of work as before, checking in each category to see if the petitioner is entitled.

1. Deferred for Certain ­Misdemeanors (“Automatic Nondisclosures”): §411.072
The biggest point of discussion from the nondisclosure changes is definitely the so-called automatic nondisclosures. These changes were intended as a way to streamline the process for first-time, low-level offenders. By “low level,” the statute excludes a number of misdemeanors from consideration,4 including all misdemeanors under Penal Code Chapters 20 (kidnapping and unlawful restraint), 21 (indecent exposure and unlawful photography), 22 (assault, deadly conduct, terroristic threat), 25 (bigamy, enticing a child, criminal nonsupport, violation of protective order), 42 (disorderly conduct, harassment, animal cruelty), 43 (prostitution, sexting), 46 (unlawful carrying of a weapon, prohibited weapons), and 71 (engaging in organized criminal activity). If the petitioner was put on deferred for any misdemeanor under those chapters, he is not eligible for an automatic nondisclosure.
    The next significant factor in automatic nondisclosures is that they are only for first offenders. Ordinary nondisclosures restrict only people previously convicted of certain offenses from obtaining an order, but automatic nondisclosures require that the person has never been convicted of or placed on deferred for any offense other than a fine-only traffic violation.5 So if the petitioner has any prior convictions or deferreds, he is not eligible for an automatic nondisclosure.
    Once the petitioner meets those two requirements, then the process is simple. He must successfully complete deferred and obtain an order of discharge and dismissal.6 It also must be at least 180 days since he was placed on deferred. That means that a person whose probation lasted longer than six months can get a nondisclosure immediately upon completing probation. But if the probation lasted less than six months, he has to wait until six months have expired until he can get a nondisclosure.
    One requirement for regular nondisclosures that does not have to be met in automatic nondisclosures is that the petitioner shows it is in the best interests of justice to issue the order. There is a similar provision, but it requires action earlier. Under the new Article 42.12, §5(k), when a trial court places a person on deferred, it must make an affirmative finding if it concludes that it would not be in the best interests of justice for the person to receive an automatic nondisclosure.7 Thus, the State can make an argument on best interests of justice only at the time the person is placed on deferred. If that affirmative finding is made, then the person is ineligible to receive an automatic nondisclosure.8
    Of course, there has to be one additional wrinkle to spice things up. In the same legislative session it passed §5(k), the Legislature wholly repealed Article 42.12 and replaced it with the new Chapter 42A of the Code of Criminal Procedure as of January 1, 2017.9 The §5(k) language did not make it into Chapter 42A. Exactly what this means is unclear. The bill creating Chapter 42A specified that it was meant as a recodification only and no substantive changes were intended.10 Thus, §5(k) may be one of several newly amended provisions of Article 42.12 that survive the repeal of that article and will likely be rolled into new Chapter 42A in the next legislative session.
    Finally, a big question on “automatic” nondisclosure orders is how they will be issued. Unfortunately, the law is not clear. The statute simply says that the court “shall issue” the order after determining whether the person meets the requirements of the statute.11 It also provides that a defendant is not required to file a petition. But the defendant is required to pay a fee and “present” to the court any evidence necessary to establish that she is eligible.12 Evidence of eligibility would include the order placing her on deferred and the order of discharge and dismissal, as well as a criminal history search to verify she does not have any disqualifying prior convictions or deferreds. Exactly how or when this information is meant to be presented is left unclear, but the best analogy would be acquittal expunctions under the Code of Criminal Procedure.13 Like automatic nondisclosures, the defendant is not required to pay ordinary criminal filing fees and must only “request” relief rather than file a petition for it, but the “request for acquittal expunction” is generally identical to an expunction petition so the court has all the information necessary to grant it. Thus, the best practice would be to file a “Request for §411.072 Nondisclosure” with the court; it should contain the information about the offense listed above so that the court can enter an order. Different counties may come up with their own preferred approaches to these cases.

2. Standard Deferred ­Nondisclosures: §411.0725
If a person received deferred adjudication but does not qualify for an automatic nondisclosure, then he would be considered for nondisclosure under §411.0725.14 This would include anyone who received deferred for a felony or a misdemeanor in the prohibited list of §411.072, a person who received a §5(k) affirmative finding, or someone with a prior conviction or deferred. These operate exactly like a traditional nondisclosure. The person must show that he was placed on deferred, that he received a discharge and dismissal, that a waiting period has passed, and that issuance of the order is in the best interests of justice.15
    Waiting periods for §411.0725 nondisclosures are unchanged from earlier versions.16 All felonies must wait five years. Misdemeanors under Chapters 20, 21, 22, 25, 42, 43, and 46—in other words, the misdemeanors barred from receiving an automatic nondisclosure—have a two-year waiting period. All other misdemeanors can be granted immediately. The waiting period begins to run only when the order of discharge and dismissal is signed, not when the supervision expires, so prosecutors must pay attention to when that order was actually signed.
    These nondisclosures—and all nondisclosures other than automatic ones—require the petitioner to show that issuance of the order is in the best interests of justice.17 This is the time to introduce any issues that do not technically disqualify someone from receiving a nondisclosure but that are still issues a judge might believe should not be sealed from public record. Examples might include several prior similar offenses—like if Ted has gotten deferred on numerous prior theft cases and now wants the latest one sealed, the court might believe his potential employers deserve to know he has a history of stealing. Or if the facts of a case were particularly heinous—perhaps a child sexual assault where the case was pleaded down to assault solely to prevent the young victim from testifying—the judge may conclude it is not in the best interests of justice to seal that record. These are considerations that will vary widely from case to case and judge to judge, so it is something we have to consider on an individual basis.

3. Straight Probation for ­Certain Misdemeanors: §411.073
Another huge change made to nondisclosure laws is allowing people who were convicted to still have their cases sealed, as opposed to limiting this option solely to deferred adjudication. There are two separate sections that allow this—§411.073 for community supervision cases and §411.0735 for jail time cases.
    Under §411.073, a person may be eligible for a nondisclosure if she receives community supervision for certain misdemeanors.18 Mostly intoxication-related offenses are precluded, including any misdemeanors under Alcoholic Beverage Code §106.041 (possession and/or consumption of or selling alcohol to minors) or Penal Code §§49.04 (driving while intoxicated), 49.05 (flying while intoxicated), 49.06 (boating while intoxicated), or 49.065 (operating an amusement park ride while intoxicated). Additionally, any conviction under Penal Code Chapter 71 (engaging in organized criminal activity) may not be nondisclosed.
    For any offenses not on the prohibited list, the petitioner must successfully complete community supervision and receive a discharge and dismissal.19 This section applies to anyone who served community supervision, even if he also served jail time such as through shock probation or as a term and condition of probation.20 The waiting period for these cases is, again, two years for offenses under Penal Code Chapters 20, 21, 22, 25, 42, 43, or 46, or immediately for all other misdemeanors. The petitioner must still prove that issuance of the order is in the best interests of justice. But the petitioner must also show—as in automatic nondisclosures—that she was never convicted of or received deferred adjudication for any offense other than a fine-only traffic offense.21 These nondisclosures are intended for first-time offenders only.

4. Misdemeanor Jail Time: §411.0735
Misdemeanor convictions that resulted in jail time are covered in their own section, but they operate much the same as straight probation cases. The person must have been convicted of a misdemeanor, but not for any of the prohibited offenses—generally intoxication offenses and engaging in organized criminal activity.22 The waiting period for these cases is two years after the person is released from confinement.23 Like straight probation cases, the petitioner must be a first-time offender. Any prior convictions or deferred, other than for a fine-only traffic offense, will disqualify him from receiving a nondisclosure.24 Finally, the petitioner must show that issuance of the order is in the best interests of justice.

5. Human Trafficking Victims: §411.0728
This section will not likely be used very often because the requirements are very stringent, but for the situations where it occurs, here is your guide. This section applies only to people convicted of prostitution25 and sentenced to straight probation.26 They must then successfully complete probation and have the conviction set aside under the so-called “judicial clemency” act, Article 42.12, §20(a)27 of the Code of Criminal Procedure.28 If so, they may file a petition of nondisclosure and must convince the judge that they committed the offense solely as victims of human trafficking and that issuance of the order is in the best interests of justice.29

Other considerations
Most of the other nondisclosure rules have stayed essentially the same in the recodification. Other than in automatic nondisclosures, a person must file a civil petition to be considered for a nondisclosure.30 The trial court must then provide notice to the State. But unlike the old statute, a hearing is not required. The petitioner must only receive the opportunity for a hearing.31 The State must request a hearing before the 45th day after it received notice of the petition.32 Otherwise, the court may grant the order without a hearing if it can determine from the petition alone that the person meets all the requirements.33
    The new statute still does not give a right of appeal in nondisclosure cases. Generally, such cases cannot be appealed because they do not reach the required amount of controversy to vest jurisdiction in civil cases. But if a judge grants a nondisclosure to a person who is statutorily not entitled to it, the State may be able to seek a writ of mandamus to overturn the order. This would not apply to the discretionary sections, such as whether issuance was in the best interests of justice, but if a petitioner has a disqualifying prior conviction or the waiting period has not run, mandamus may be an option to obtain relief.
    As ever, information about an offense subject to an order of nondisclosure may not be disclosed to anyone except 1) for criminal justice purposes, 2) to certain regulatory agencies, or 3) to the petitioner himself. The petitioner (or his attorney) is the only person who can obtain the records under that exception. He cannot generally waive a previously granted order of nondisclosure so that the agencies can disclose records to a third party.34 The list of regulatory agencies remains generally unchanged, but banks and similar financial institutions are now included, so long as it is regarding an application for employment.35 Similarly, employers of “critical infrastructure” are exempted regarding information about an employee or applicant who would be responsible for handling, manufacturing, or transporting certain hazardous materials.36 Finally, while disclosure for criminal justice purposes has always been allowed, the new statute makes clear that any information subject to a nondisclosure order may still be admitted into evidence in a subsequent criminal case.37

The nondisclosure statute has drastically changed. Many more people will shortly become eligible for nondisclosure than have ever been in the past, which means our workloads will increase. The statute is also more complicated than before, requiring more review to determine whether the petitioner meets the new requirements for nondisclosure. This article is only a summary of the changes to the law. For more information, TDCAA’s book Expunction and Nondisclosure is being revised to reflect the new law and will be available in the spring.
    In the meantime, the most important questions to ask when reviewing any petition for nondisclosure under the new law are:
•    Does the petitioner have any prior convictions or deferred adjudications requiring registration as a sex offender for any of the prohibited list of offenses (Penal Code §§19.02, 19.03, 20.04, 20A.02, 20A.03, 22.04, 22.041, 25.07, 25.072, & 42.072), or for family violence? If so, he is not eligible for any nondisclosure.
•    Was the petitioner convicted of or placed on deferred for any non-traffic offenses while on probation or during the waiting period? If so, he is not eligible for any nondisclosure.
•    Does the petitioner have any prior convictions or deferred adjudications? If so, he is not eligible for automatic nondisclosures or nondisclosures following jail time or straight probation.
•    Did the person receive an order of discharge and dismissal from deferred or straight probation? (Or was he released from jail?) If not, the clock has not yet started ticking on his waiting period.
•    Has any applicable waiting period passed? Except for automatic nondisclosures, a person can get a nondisclosure only after the waiting period has run—five years for felonies, two years for certain misdemeanors, and immediately for all other misdemeanors, or two years from release from confinement.

1 Acts 2015, 84th Leg., ch. 1279 (S.B. 1902), §32, eff. Sept. 1, 2015.
2 Tex. Gov’t Code §411.074(a).
3 Id. at §411.074(b).
4 Id. at §411.072(a)(1)(A).
5 Id. at §411.072(a)(2).
6 Id. at §411.072(b). Some courts automatically issue an order of discharge and dismissal upon successful completion of community supervision. Others issue one only upon the defendant’s request.
7 Tex. Code Crim. Proc. art. 42.12, §5(k).
8 Tex. Gov’t Code §411.072(a)(1)(B).
9 The new Chapter 42A will become effective January 1, 2017. Acts 2015, 84th Leg., ch. 770 (HB 2299), §1.01, eff. Jan. 1, 2017.
10 Acts 2015, 84th Leg., ch. 770 (H.B. 2299), §4.01, eff. Jan. 1, 2017.
11 Tex. Gov’t Code §411.072(b).
12 Id. at §411.072(c).
13 Tex. Code Crim. Proc. art. 55.02, §1.
14 Id. at §411.0725(a).
15 Id. at §411.0725.
16 Id. at §411.0725(e).
17 Id. at §411.0725(d).
18 Id. at §411.073(a).
19 Id. at §411.073(b).
20 Id. at §411.073(a)(2)(B).
21 Id. at §411.073(b)(2).
22 Id. at §411.0735(a).
23 Id. at §411.0735(d). A discharge and dismissal is not necessary for these cases, unlike deferred and straight probation cases.
24 Tex. Gov’t Code §411.0735(b)(2).
25 Tex. Penal Code §43.02.
26 Tex. Gov’t Code §411.0728(a).
27 Or Chapter 42A.702, when the recodification takes place.
28 Tex. Gov’t Code §411.0728(a).
29 Id. at §411.0728(b) & (c).
30 Id. at §411.0745(a) & (b). The petitioner must pay a $28 fee in addition to any other civil filing fees.
31 Id.
32 Id. at §411.0745(e)(1).
33 Id. at §411.0745(e)(2).
34 Op. Tex. Att’y Gen. GA-0255, 2004 WL 2191050, at *2 (2004).
35 Tex. Gov’t Code §411.0765(30).
36 Id. at §411.0765(31).
37 Id. at §411.0775. The evidence must still meet any other admissibility requirements.