A Motion for NonDisclosure is where a person's record is sealed to the general public. The main criteria for a Motion for NonDisclosure is that the person successfully completed Deferred Adjudication Probation, and had the case Dismissed at the end of probation. Texas Government Code Section 411.081 regulates how a Motion for Non Disclosure is handled, and if the Motion for Non Disclosure is granted, the Motion for Non Disclosure effectively prohibits governmental agencies from disclosing the existence of the charge or the deferred adjudication sentence.
Deferred Adjudication means any court ordered sanction, sentence or court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor.
A typical Deferred Adjudication is where a defendant, in Court, tells the Judge that he or she is guilty, but the Judge delays the official finding of guilt. Instead, the Court orders the defendant to probation, at the end of which, assuming there are no new arrests and the defendant has complied with the probation terms, the case is dismissed.
Note: Deferred Adjudication is DIFFERENT than regular probation, Deferred Disposition or Pre-Trial Diversion, which is an agreement made without the Judge asking for or delaying findings of guilt. This is a tricky and confusing area of law, and it is best to speak with a Lawyer to determine the specifics of your case.
A successful Motion for Non Disclosure will prohibit your criminal offense history from being revealed pursuant to a Freedom of Information Act request. But keep in mind; criminal justice agencies are permitted to release criminal history record information, even if there was a successful Motion for Non Disclosure, to other law enforcement agencies, Courts, and other criminal justice agencies. A typical scenario where this occurs is where the person is arrested for new criminal charges. Courts and police can access the offense despite the Motion for Non Disclosure, in an effort to negotiate the case or add enhancements if applicable.
A person can usually petition a Court for an order of nondisclosure immediately after the deferred adjudication is discharged and the case is dismissed. However, there are some offenses where a person must wait two years after deferred adjudication dismissal to file for an order of nondisclosure.
A person can usually petition a Court for an order of nondisclosure five years after the deferred adjudication is dismissed. Keep in mind that some felony offenses cannot be cleared or hidden with an order of nondisclosure.
After a judge has ordered granting of the Motion for Non Disclosure, the defendant may deny the occurrence of the arrest and prosecution unless the information is being used against him/her in a subsequent criminal proceeding. Also be aware that for purposes of federal law, a deferred adjudication is equal to a conviction, meaning that even if the Motion for Non Disclosure is granted, a person facing new federal charges can still be punished as though the Motion for Non Disclosure was never granted. Lastly, a person who is not a citizen can be deported and face immigration consequences that cannot be cleared with a Motion for Non Disclosure.
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