Nondisclosure Update

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Tuesday, May 9th, 2017
Nondisclosure Update

The Law Office was situated on the south corner of Main Street, just past wide-open Texas spaces and a sign that read Population: 1,900. True to its name, Main Street was really the only street. Once bustling with United States Air Force pilots training for World War II, the town had, surprisingly, settled in as a hub for art. Lined with rustic worn-out buildings, you could still find most necessities. A grocery store, a feed store, a barber shop, a dental office, a hardware store, a pharmacy, an art store, and of course a state-renowned barbecue joint all within a stone’s throw from the county courthouse. As one of the only firms in town, the Law Office handled everything from criminal to agricultural law and most things in between.

It was 9:00 am and the phone rang. The boutique firm’s long-time secretary sat at her desk with her head buried secretly in a romance novel. Of course, despite any formal training she wasn’t just the secretary. She was also the paralegal, the accountant, and the office manager. Honestly, she was the glue that held the firm together. And in her raspy southern voice—a combination of two ex-husbands, four kids, and a small factory of Marlboro Lights—she announced, “Law Office.”

The soft, intimidated voice on the other end replied, “I’d like to speak to a lawyer, please.”

“Regarding what?”

If the multi-talented employee had learned anything over the last 30 years it was that she controlled the phones. Judgment was cast upon each caller as she determined who made it through to the next round.

The young voice on the other end fired away: “This past year I made my first mistake . . . Well, actually, it was my second mistake, but I don’t consider my first-born child to be a mistake now. Anyway, needing makeup, I took some from Target. Not wanting my parents to find out, I pled guilty and paid a fine on the first court date. Now, I can’t escape it. School applications ask about it, apartment complexes ask about it, employers ask about it. I was young. I was dumb. But I don’t feel like I should be punished forever. I don’t feel like my child should be punished forever, either.”

Adding therapist to her growing list of office duties, the secretary gently replied: “Slow-down. Take a breath. Breathe.”

“Sorry,” the caller said. “But is there anything that can be done?”

* * * *

Until recently the answer was simple. Short of a governor’s pardon, a person with a previous conviction had almost no options. That began to change, however, in the last legislative session. Lawmakers took a much-needed two-step in the right direction by re-writing sections of the Texas Government Code applicable to nondisclosures.1 These amendments walked quietly amid the legal community while other legislation, such as open-carry, received all the press and attention. But under the new nondisclosure provisions, relief was now possible for Texans burdened with a modern-day scarlett letter in the shape of a C.

* * * *

“Hold please,” the secretary continued.

The long-time employee knew the answer but wasn’t paid enough to provide it. She had always wanted to attend law school. However, her family’s demands gave way. Marrying rich provided her a quicker, albeit temporary, path to a lavish lifestyle. Sadly, that path was consumed by her xx’s secretive gambling addiction.

The secretary then patched the young caller through to the next round.

The grey-haired lawyer picked up the phone. On the grind for over 40 years, he had contemplated retirement, then retired, then un-retired. Now he was thinking about retirement again. But he knew better. He knew he never would. He just didn’t like the ending to that story.

After being quickly briefed, the lawyer reached for his updated nondisclosure checklist.

* * * *

To prevail on ANY nondisclosure, conditions #1 and #2 below must be met. Condition #3 determines whether the new legal provisions may apply.

 

Nondisclosure Update - Number 1

First, the person must not have been convicted of, or placed on deferred for, any offense (other than a fine-only traffic offense) at any time after the sentence was pronounced and continuing through any applicable waiting period.2

Example 1: Jake is arrested and charged with Crime A. He receives deferred adjudication. Two months later he is arrested, charged, and convicted of Crime B. The latter conviction, Crime B, bars him from a nondisclosure on Crime A.

Example 2: Jake is arrested and charged with Crime A. Prior to receiving deferred on Crime A, Jake is arrested, charged, and convicted of Crime B. Contrary to example one, Jake is still eligible for a nondisclosure on Crime A. The relevant consideration is the actual conviction, not the date of the offense.

Practice Tip: Keep this provision in mind when representing a client with multiple cases and subsequent offense dates. How and when the cases were resolved can impact the person’s ability to seek relief.

 

Nondisclosure Update - Number 2

Second, the person must not have a conviction for a prohibited offense. The prohibited list includes any offense requiring registration as a sex offender, any case involving family violence, murder, aggravated kidnapping, trafficking of persons, injury to a child, elderly, or disabled, abandoning or endangering a child, or stalking, and violations of bond in family violence, sexual assault, and stalking cases.3 It is important to remember the forbidden list applies not only to the charge for which the nondisclosure is sought, but also to prior convictions.

If the above two conditions are met, then the date of the offense must be examined. Specifically:

 

Nondisclosure Update - Number 3

Did the offense occur on or after September, 1, 2015? In order for the new amendments to apply, the offense must have occurred on or after September 1, 2015.4 If the offense occurred prior to September 1, 2015, the law in effect at that time applies. The new statute is not retroactive.

If the petitioner meets these conditions, then the necessary vehicle for nondisclosure should be chosen.

A. Automatic Nondisclosure (for certain misdemeanors): §411.072

Ever been to Disneyland? If so, you are familiar with the “fast pass.” Planning and timing your adventures, you strut past those unfortunate souls baking in the summer heat, waiting in hour-plus-long lines. Automatic Nondisclosures are the “fast passes” of the legal kingdom. Of course, not all rides apply. To start, this must be the person’s first offense.5 Second, the crime must not be excluded under statute. Excluded offenses include kidnapping, unlawful restrain, indecent exposure, unlawful photography, assault, deadly conduct, terroristic threat, bigamy, enticing a child, violation of protective order, disorderly conduct, harassment, animal cruelty, prostitution, unlawful carrying of a weapon, prohibited weapons, and engaging in organized crime.6 If the petitioner does not meet these requirements, they may still be eligible for a standard nondisclosure, just not the “fast pass” automatic kind.

Waiting Period

Once 180 days have passed from the day the person was placed on deferred (not the discharge date), the person can petition for an automatic nondisclosure. If the deferred is less than 180 days, the person must wait it out. If the deferred is 180 days or longer, they are immediately eligible (assuming all other requirements are met).

Procedure

Unlike standard deferred nondisclosures, a showing that granting the petition is in the best interest of justice is not required. Be aware, under Tex. Code Crim. Proc. Art. 42.12, §5(k) (if it survives repeal and is rolled into Chapter 42A), when a trial court places a person on deferred an affirmative finding can be made that it would not be in the best interest of justice for the person to receive an automatic nondisclosure.

Practice Tip: Be prepared to argue why an automatic nondisclosure would be in the best interest of justice at the time of the plea.

While the overall procedure is somewhat unclear, what is clear is the petitioner is required to pay a fee and “present” any evidence necessary to establish eligibility (e.g., order placing then on deferred, order of discharge and dismissal, and criminal history search).7 For now, you should expect the automatic nondisclosures to be handled like a post-acquittal expunction.

B. Standard Nondisclosure: §411.0725

You know this old song and dance. For those who successfully complete deferred adjudication and do not qualify for an automatic nondisclosure, a standard nondisclosure may apply.

Waiting Period

The waiting periods remain the same. For felonies, it is five years from the date of discharge and dismissal. For misdemeanor offenses under Tex. Pen. Code chapter 20 (kidnapping, unlawful restraint, smuggling, and trafficking), 21 (sexual offenses), 22 (assaultive offenses), 25 (offenses against the family), 42 (disorderly conduct and related offenses), 43 (public indecency), and 46 (weapon offenses), the waiting period is two years from the date of the discharge and dismissal. For all other misdemeanors, there is no waiting period.

Procedure

Once the petition is filed, filing fees paid, and hearing date set, the court (upon finding issuance of the order is in the best interest of justice) can order the records sealed.8

Practice Tip: The day the discharge and dismissal order was signed by the court begins the waiting period. Consequently, pay attention to that date rather than the day the supervision expired.

C. Straight Probation for Certain Misdemeanors: §411.073

A Texas-sized change to nondisclosure laws allows for persons with certain convictions to have their cases sealed. Two separate statutory sections allow this, with the first being for those placed on community supervision.

To be eligible the person must not have been convicted of a prohibited offense. Under this section of the Tex. Gov’t Code, prohibited offenses include intoxication offenses and engaging in organized crime. For any misdemeanor offense not on the prohibited list, the petitioner must successfully complete community supervision and receive a discharge and dismissal.9 This section allows for a nondisclosure even if jail time is required as a condition of the probation.10

Waiting Period:

Like a standard nondisclosure, the waiting period is two years for offenses under Tex. Pen. Code Chapters 20, 21, 22, 25, 42, 43, or 46 and immediately for any other misdemeanor.

Procedure:

The petitioner is required to prove the order is in the best interest of justice. This provision is intended for first-time offenders only.

D. Jail Time for Certain Misdemeanors: §411.0735

The second big change allows for nondisclosures of certain misdemeanor jail time cases. For the most part, nondisclosures under this provision act like probation nondisclosures, but for the waiting period.

Waiting Period:

In jail time cases the waiting period is two years after the person has been released from jail.11

E. Human Trafficking Victims §411.0728

The final category of nondisclosures can be found in Tex. Gov. Code § 411.0728, which provides relief to those convicted and placed on community supervision for prostitution offenses. Two hurdles must be overcome. First, the conviction must be set aside under the judicial clemency act. Tex. Code Crim. Proc. Art. 42.12, §20(a)(27).12 Second, the court must be convinced the act was committed solely as a victim of human trafficking.13 Provided these two requirements can be met, those placed on community supervision for prostitution offenses may be entitled to relief any time after the conviction has been set aside.

Practice Tip: For any category of nondisclosure, the new law provides only the opportunity for a hearing, not that an actual hearing is required. As a result, the court can grant the order without a hearing if it determines, from the petition alone, the person meets all requirements.

* * * *

After the consultation concluded, the young caller placed her phone on the coffee table. Suddenly, life didn’t feel so heavy. Now relieved, she stared out her living room window at the West Texas sunset. She couldn’t remember a day that had looked so colorful. For the first time in a while, she had hope. No longer would she fear loan applications, lease applications, and employee forms. No longer would one small mistake be held against her and her child. Gazing at the sunset, she took a deep breath and exhaled. For the first time, in a long time, she felt as if she could breathe freely once more.

Notes

1. Texas Government Code § 411.071–077.

2. Tex. Gov’t Code § 411.074(a).

3. Id. at § 411.074(b).

4. Acts 2015, 84th Leg., ch 1279 (S.B. 1902), § 32, eff. Sept. 1, 2015.

5. Id. at § 411.072(a)(2).

6. Id. at § 411.072(a)(1)(A).

7. Tex. Gov’t Code § 411.072(c).

8. Id. at § 411.0725(d).

9. Id. at § 411.073(b).

10. Id. at § 411.073(a)(2)(B).

11. Id. at § 411.0735(d).

12. Tex. Gov’t Code § 411.0728(a).

13. Id. at § 411.0728(b) & (c).

Nondisclosure Update-2