Are deferred adjudication records public?

Does the Record Zapper service include court filing fees?

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.

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 office where the case was filed and the Texas Department of Public Safety.

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. The law allows for your record to not be publicly available in two ways. You are eligible for an expunction order if you were charged, but not prosecuted, or if you were found not guilty: either at the court of first instance or on appeal. In some cases, Class C misdemeanors (generally traffic tickets) are also eligible for expunction. If you received a pardon from the Governor you are also eligible. If you received deferred adjudication, you may be eligible for an order of nondisclosure. (See information below)

1. 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 a number of offenses, however, for which this procedure is not available. (See list) A defendant may disqualify himself if he commits an offense after the deferred adjudication has been completed and before the filing of the petition.

Which defendants are disqualified from seeking an order of nondisclosure?

Any defendant who, after the date of their 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), a defendant has to wait a certain period of time following the date of their discharge and dismissal before becoming eligible to file a petition for an order of nondisclosure. The eligibility date is not the date that the defendant entered his plea: it is the date that the deferred adjudication was concluded. (see this chart)

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 case will likely be dismissed.

What needs to be proven at the hearing?

A defendant needs to be prepared to provide evidence with 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 filed after the required waiting period for each offense 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 or denying the petition.

Which defendants are not eligible 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 the offense for which the defendant received the deferred adjudication) is not entitled to seek an order of nondisclosure. Click here to see the chart.

What is the effect of an 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 they have the criminal history record information that is the subject of the order. These organizations are required 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
  
• The person who is the subject of the order.

Does the Record Zapper service include court filing fees?

No; each district's clerk sets the fees for filing petitions. The fee is paid directly to the court where you file your documents.

Disclosure:

Record Zapper and its employees do not give legal advice and are not allowed to tell you what you should do in your specific case. While the law allows, and it is commonplace, for someone to represent themselves in these matters, it is not a substitute for qualified legal counsel if you consider it necessary for your situation.

This FAQ was gathered from opinions posted by the District Attorney's Office and is simply provided as a public service.