Texas Deferred Adjudication Information Garcia Attorney Conroe

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Texas Deferred Adjudication Information

Are deferred adjudication records public?

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.

Can deferred adjudication records be made non-public by request?

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.

Which defendants are ineligible to seek an order of nondisclosure?

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
"Family violence" means:

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

Which defendants are disqualified from seeking an order of nondisclosure?

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.

When is an otherwise eligible defendant allowed to seek an order of nondisclosure?

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.

All felonies -- 5 years from date of discharge and dismissal.

The following misdemeanors -- 2 years from date of discharge and dismissal.

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

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

All other misdemeanors -- May file immediately upon 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.

When will the petition be heard?

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.

Note:

If filing a non-disclosure for a felony case, you need to obtain a hearing date from the court coordinator where your initial case was originally heard. Then, you will need to file your petition with the District Clerk's office.

What needs to be proven at the hearing?

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 or denying the petition.

What is the effect of the order of nondisclosure?

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.)
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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The Gilbert G. Garcia Law Firm
220 North Thompson, Suite 202 | Conroe, TX 77301
936.756.3333 | Fax 936.539.4357

Serving criminal defense clients in Montgomery and Walker Counties. Including the cities of Conroe, Willis,
Montgomery, Shenandoah, Huntsville, Oak Ridge and The Woodlands, Lake Conroe, New Caney, Porter and Splendora.