Expunction vs. Nondisclosure in Texas: Which One Fits Your Situation

Stamping a document, illustrating the formal record-clearing process behind a Texas expunction or order of nondisclosure

Two of the most common questions in the post-case phase of a Bexar County criminal matter are about clearing the record. The two questions sound alike. They are different questions with different answers.

The Texas tools for clearing a criminal record are expunction and nondisclosure. They sound similar. They are not the same thing. Which one applies depends on what happened in the case, and the difference between the two is the difference between “this case never legally existed” and “this case exists but most people cannot see it.”

Here is the practical breakdown for Bexar County cases.

Expunction: the record is erased

Expunction is the more powerful remedy. The legal basis is Chapter 55 of the Texas Code of Criminal Procedure. When a court grants an expunction, every government agency that has the arrest record is ordered to destroy or return its copy.[2] After expunction the person can lawfully say, on most applications and under most circumstances, that the arrest never happened.[3]

Expunction is available in a narrow set of situations. The case ended in a dismissal, an acquittal, a not-guilty verdict, or a pardon. The case never resulted in a conviction or a successful deferred adjudication. Certain other technical criteria are met, including the expiration of statutes of limitations for the underlying offense.[4]

In Bexar County, the practical use of expunction is for cases that the DA’s office dismissed, for cases that ended in a not-guilty verdict at trial, and for cases that ended in successful pretrial diversion. For each of those, expunction is generally available once the statutory waiting period has run.

Nondisclosure: the record is sealed

Nondisclosure is the secondary remedy. The legal basis is Chapter 411 of the Texas Government Code, specifically Subchapter E-1.[5] When a court grants an order of nondisclosure, the record is sealed from most public view. Background-check companies, most employers, and most landlords cannot see the record. But the record still exists.

The audience that can still see a nondisclosed record is narrower but important. Law enforcement agencies. Certain licensing authorities, including the State Bar of Texas, the Texas Medical Board, and the Texas Education Agency. Some governmental employers. The full list is in Texas Government Code Section 411.0765.[6]

Nondisclosure is available in a broader set of situations than expunction. It is the standard remedy for someone who completed a deferred adjudication successfully.[7] It is available for some convictions after a waiting period. The 2017 amendments to the nondisclosure statute opened up automatic and petition-based nondisclosure for certain first-time misdemeanors.[8]

The practical decision tree

For someone trying to figure out which remedy applies, the questions to ask in order are:

  1. What was the disposition of the case? Dismissal or acquittal or successful pretrial diversion points toward expunction. A successful deferred adjudication or a conviction points toward nondisclosure.
  2. What was the charge? Some charges, including most sex offenses and some violent offenses, are excluded from both remedies regardless of disposition.
  3. Has the waiting period expired? Expunction waiting periods depend on the underlying offense category. Nondisclosure waiting periods depend on the disposition and the offense.
  4. What does the person actually need? Someone applying for a licensed profession or a security clearance may need expunction because nondisclosure leaves the record visible to licensing boards. Someone applying for ordinary jobs and housing usually does fine with nondisclosure.

The answers determine which petition gets filed and where.

What the filing looks like in Bexar County

Both expunction and nondisclosure are civil proceedings. They are filed in district court, not in the criminal court that handled the original case.[9] The DPS, the local arresting agency, the DA’s office, and the relevant courts are all named as respondents.

The State has the right to contest. In Bexar County, the DA’s office sometimes opposes the petition, sometimes does not, depending on the case and the specific eligibility question. A hearing is scheduled. The court grants or denies the petition. If granted, the court signs an order that names every agency required to act, and the defense lawyer or the petitioner forwards the order to each agency.

The process takes months, not weeks. Some of the wait is the statutory waiting period before filing is even possible. Some of the wait is the court docket. Some of the wait is the agency response time after the order is signed.

What this office handles

Forrest Good files expunction and nondisclosure petitions in Bexar County and surrounding counties. The conversation usually starts with the client reading the disposition paperwork from the original case aloud to him, or sending the booking number so he can pull the records from the Bexar County District Clerk. From there the eligibility analysis is straightforward, and the filing path follows from that analysis.

If the original case was a Bexar County case that ended in a dismissal, acquittal, or successful pretrial diversion, the conversation is about expunction. If the original case ended in a successful deferred adjudication or certain qualifying convictions, the conversation is about nondisclosure. If the case ended in a conviction that does not qualify for either, the conversation is about whether a pardon or a different remedy applies. The expunction and nondisclosure page has more procedural detail.

Phone (210) 236-1441 (or text). Office at 923 South Alamo Street in the King William historic neighborhood. Consultations on record-clearing are by appointment.

References

  1. Tex. Code Crim. Proc. art. 55.02 (West 2024) (procedure for expunction; ordered destruction of records). [link]
  2. Tex. Code Crim. Proc. art. 55.03 (West 2024) (effect of expunction; denial of the occurrence). [link]
  3. Tex. Code Crim. Proc. art. 55.01(a) (West 2024) (entitlement to expunction; conditions including limitations period). [link]
  4. Tex. Gov’t Code §§ 411.071–.0775 (West 2024) (Subchapter E-1; orders of nondisclosure of criminal history record information). [link]
  5. Tex. Gov’t Code § 411.0765 (West 2024) (entities to which nondisclosed criminal history record information may be disclosed). [link]
  6. Tex. Gov’t Code § 411.0725 (West 2024) (nondisclosure following successful deferred adjudication). [link]
  7. Act of May 24, 2017, 85th Leg., R.S., ch. 693 (S.B. 1902) (Tex.) (expanding eligibility for orders of nondisclosure). [link]
  8. Tex. Code Crim. Proc. art. 55.02 § 2 (West 2024) (procedure; venue in district court). [link]

About Forrest Good, Esq.