Deferred Adjudication Records ARE PUBLIC RECORDS
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. In fact, the law does not provide for automatic expunction of deferred adjudication records. The records do become part of the defendant’s “permanent record” and the arrest, court process and probation record will appear on a criminal background check.
Accordingly, unless there is a court order directing otherwise, records of a prosecution resulting in a deferred adjudication are publicly available in the District Clerk's (Felony) and County Clerk’s (Misdemeanor) records, the Texas Crime Information Center database maintained by the Texas Department of Public Safety, and the National Crime Information Center maintained by the Department of Justice. In addition, the records of the arrest, investigation and jailing are on file with the investigating agency, with the agency that jailed or processed the Defendant upon arrest, and with the magistrate who set bond and conducted the initial appearance.
Under Certain Circumstance Deferred Adjudication Records Can Be Made NON-PUBLIC
There are two ways that deferred adjudication community supervision records can be made non-public:
- 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.
- Petition for nondisclosure
Under Section 411.081(d), Government Code, and 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.
Who is NOT entitled to seek an Order of Nondisclosure?
Anyone who has ever committed any of the following offenses (including 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
- Injury to a child, elderly individual, or disabled individual
- Abandoning or endangering a child
- Violation of protective order or magistrate's order
- Any other offense involving family violence
What are the WAITING PERIODS for seeking an Order of Non-Disclosure?
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.
- Abuse of a Corpse
- Advertising for placement of child
- Aiding suicide
- Cruelty to animals
- Deadly conduct
- Destruction of flag
- Discharge of firearm
- Disorderly conduct
- Disrupting meeting or procession
- Dog fightingFalse alarm or report
- 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
- 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