When Am I Eligible For A Nondisclosure?

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Your eligibility for a nondisclosure depends first on whether you were charged with a DWI. DWI nondisclosures are subject to their own nondisclosure law, which went into effect on September 1, 2017. The eligibility requirements for DWI nondisclosures are listed at the bottom of this article.

For all other cases, your eligibility requirements depend on whether the offense you were charged with occurred before or after September 1, 2015. On that date, a new nondisclosure law went into effect that enlarged the types of cases eligible for nondisclosure. Offenses that happened on or after September 1, 2015 are governed by the new law; those that happened before are governed by the old law.

Requirements for Non-DWI Offenses before September 1, 2015

If your offense occurred before September 1, 2015, you are eligible for a nondisclosure if you meet the following five requirements:

1. You were placed on deferred adjudication, completed it, and received an order of discharge and dismissal
2. You were not placed on deferred adjudication for an ineligible offense and have never been placed on deferred adjudication for or convicted of an ineligible offense
3. The required waiting period, if any, has passed
4. During your deferred adjudication and during the waiting period, you were not convicted or placed on deferred adjudication for any offense other than a ticketable traffic offense; and
5. A judge rules that granting your nondisclosure would be in the “best interest of justice”

Completion of Deferred Adjudication

You must have successfully completed your deferred adjudication and received an order of discharge and dismissal. If you failed to complete your deferred adjudication and were sentenced to jail or prison time, you cannot apply for nondisclosure. Also, if you completed your deferred adjudication but the court never issued an order of discharge and dismissal, you must obtain that order before you can apply for nondisclosure.

Offenses Ineligible for Nondisclosure

If you were placed on deferred adjudication for any of the following offenses, you cannot apply for nondisclosure. If you were placed on deferred adjudication for some other offense, but you have ever been convicted or placed on deferred adjudication for any of these offenses, you also cannot apply for nondisclosure:

1. Any offense requiring sex offender registration
2. Aggravated kidnapping
3. Murder or capital murder
4. Human trafficking or continuous human trafficking
5. Injury to a child, elderly, or disabled person
6. Abandoning or endangering a child
7. Violation of a protective order
8. Violation of a bond condition in a family violence case
9. Stalking
10. Any offense involving family violence

Waiting Period

Some offenses have a required waiting period before you can apply for nondisclosure. The waiting period starts from the day the order of discharge and dismissal was signed, not the day you started your deferred adjudication.

The waiting periods are:

1. Five years for all felonies
2. Two years for the following misdemeanors:
   1. Unlawful restraint
   2. Public lewdness
   3. Indecent exposure
   4. Unlawful disclosure or promotion of intimate visual material
   5. Assault
   6. Deadly conduct
   7. Terroristic threat
   8. Aiding suicide
   9. Leaving a child in a vehicle
   10. Enticing a child
   11. Harboring a runaway child
   12. Advertising for placement of child
   13. Disorderly conduct
   14. Riot
   15. Obstructing a highway
   16. Disrupting a meeting
   17. Disrupting a funeral service
   18. False alarm or report
   19. Silent or abusive calls to 911
   20. Interference with an emergency telephone call
   21. Harassment
   22. Abuse of corpse
   23. Cruelty to animals
   24. Attack on an assistance animal
   25. Dogfighting or cockfighting
   26. Discharge of a firearm in a metropolitan area
   27. Unlawful use of laser pointer
   28. Illumination of aircraft by intense light
   29. Unlawful carrying of a weapon
   30. Unlawful carrying of a handgun by a license holder
   31. Unlawful possession of firearm
   32. Possession of a prohibited weapon
   33. Unlawful transfer of a weapon
   34. Possession of a hoax bomb
   35. Making a firearm accessible to a child
3. No waiting period for all other misdemeanors

Best Interest of Justice

Even if you meet all the other requirements, a judge still has the power to deny your request for nondisclosure if he or she finds granting the request would not be in the best interest of justice. This is rare; the vast majority of the time, a judge will grant a properly filed petition for nondisclosure. However, if your case had particularly egregious facts or if you performed poorly on your deferred adjudication and the judge remembers that, you can have your request denied as being not in the best interest of justice.

Requirements for Non-DWI Offenses On or After September 1, 2015

You may also qualify for nondisclosure if you completed a Veterans Court program or were a victim of human trafficking. Because these types of nondisclosures are rare and don’t apply to most people, I do not discuss them here.

“Automatic” Nondisclosure

“Automatic” nondisclosures, despite the name, aren’t automatic. They’re called “automatic” because, if you qualify, the judge has no ability to deny your nondisclosure as not being in the “best interest of justice.” You still have to file a petition for nondisclosure to receive an “automatic” nondisclosure.

You are eligible to receive an “automatic” nondisclosure if:

1. You were placed on deferred adjudication for a misdemeanor
2. The misdemeanor was lit one of the following offenses
   • Unlawful restraint
   • Public lewdness
   • Indecent exposure
   • Unlawful disclosure or promotion of intimate visual material
   • Assault
   • Deadly conduct
   • Terroristic threat
   • Aiding suicide
   • Leaving a child in a vehicle
   • Enticing a child
   • Harboring a runaway child
   • Advertising for placement of child
   • Disorderly conduct
   • Riot
   • Obstructing a highway
   • Disrupting a meeting
   • Disrupting a funeral service
   • False alarm or report
   • Silent or abusive calls to 911
   • Interference with an emergency telephone call
   • Harassment
   • Abuse of corpse
   • Cruelty to animals
   • Attack on an assistance animal
   • Dogfighting or cockfighting
   • Discharge of a firearm in a metropolitan area
   • Unlawful use of laser pointer
   • Illumination of aircraft by intense light
   • Unlawful carrying of a weapon
   • Unlawful carrying of a handgun by a license holder
   • Unlawful possession of firearm
   • Possession of a prohibited weapon
   • Unlawful transfer of a weapon
   • Possession of a hoax bomb
   • Making a firearm accessible to a child
   • Violation of a court order enjoining organized criminal activity
3. The judge did not make an affirmative finding, at the time you were placed on deferred adjudication, that nondisclosing your case later would not be in the “best interest of justice.” (Unlike a traditional nondisclosure, the “best interest of justice” ruling is made on the front end.)
4. You have never been placed on deferred adjudication for another offense other than a traffic offense punishable by fine only.
5. You completed your deferred adjudication and received an order of discharge and dismissal.
6. It has been at least 180 days since you were placed on deferred adjudication. (Note that this deadline runs from when you were placed on deferred, not when you finished deferred).

Traditional Nondisclosure

If your case meets the five requirements under the old law, you are eligible for nondisclosure under the new law. Those requirements are:

1. 1. 1. You were placed on deferred adjudication, completed it, and received an order of discharge and dismissal
      2. You were not placed on deferred adjudication for an ineligible offense and have never been placed on deferred adjudication for or convicted of an ineligible offense
      3. The required waiting period, if any, has passed
      4. During your deferred adjudication and during the waiting period, you were not convicted or placed on deferred adjudication for any offense other than a ticketable traffic offense; and
      5. A judge rules that granting your nondisclosure would be in the “best interest of justice”

Nondisclosure Following Misdemeanor Community Supervision

If you were placed on misdemeanor community supervision instead of deferred adjudication, your case may be eligible for nondisclosure. The requirements are largely the same as the old law, but there are some important differences:

1. 1. 1. You were placed on misdemeanor community supervision, completed it, and received an order of discharge and dismissal
      2. The required waiting period, if any, has passed
      3. You have never been convicted or placed on deferred adjudication for any other offense other than a ticketable traffic offense
      4. A judge rules that granting your nondisclosure would be in the “best interest of justice”; and
      5. You were not placed on misdemeanor community supervision for any of the following offenses:
         1. Selling alcohol to a minor
         2. DWI
         3. Boating while intoxicated
         4. Flying while intoxicated
         5. Operating an amusement park ride while intoxicated
         6. Engaging in organized criminal activity

Nondisclosure Following Misdemeanor Jail Time

The biggest change the new law made was to make people sentenced to jail time for certain misdemeanors eligible to have their convictions nondisclosed. The requirements are:

1. 1. 1. You were convicted of a misdemeanor and sentenced to jail
      2. You served your jail sentence
      3. It has been two years since you were released from jail
      4. Your misdemeanor conviction was not for one of the following offenses:
         1. Selling alcohol to a minor
         2. DWI
         3. Boating while intoxicated
         4. Flying while intoxicated
         5. Operating an amusement park ride while intoxicated
         6. Engaging in organized criminal activity
      5. You have never been convicted or placed on deferred adjudication for any other offense other than a ticketable traffic offense
      6. A judge rules that granting your nondisclosure would be in the “best interest of justice”

Requirements for DWI Offenses

The Texas legislature dramatically changed nondisclosure law on September 1, 2017 by allowing certain DWIs to be eligible for nondisclosure. Before the law change, DWIs could never be nondisclosed. This new law allows any DWI to be nondisclosed as long as it meets the requirements, regardless of how long ago the DWI conviction occurred.

The requirements to have your DWI nondisclosed are:

1. 1. 1. Your conviction was for a first-time DWI.
      2. Your DWI did not involve a crash that involved another person, including a passenger in your own vehicle.
      3. Your DWI conviction was not a Class A misdemeanor DWI involving a blood alcohol concentration (BAC) of .15 or higher.
      4. You have never been convicted or placed on deferred adjudication for any other offense other than a ticketable traffic offense.
      5. If you were placed on community supervision (i.e. probation), you completed it and paid all of your court-ordered fines, fees, and restitution.
      6. If you were sentenced to jail, you served your sentence and paid all of your court-ordered fines, fees, and restitution; and
      7. The applicable waiting period has passed.

Waiting Periods for DWI Nondisclosures

The waiting period is different depending on the circumstances of your case.

If you did community supervision and had an interlock device on your vehicle for at least six months as part of your community supervision: 2 years

If you did community supervision and had an interlock device on your vehicle for at least six months as part of your community supervision, but your community supervision was revoked and you were sentenced to jail time: 3 years

If you did community supervision without an interlock device on your vehicle for at least six months OR you were sentenced to jail time without community supervision: 5 years.

For more information on Nondisclosures In Texas, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (713) 936-4521 today.