Expunction or nondisclosure in Texas, and which one applies to you

People almost always ask for the wrong one. They come in saying they want their record expunged, and what the statute actually allows in their situation is a nondisclosure, or sometimes nothing at all yet. The two are separate remedies with separate rules, and the thing that decides which one is open to you is how your case ended.

Not how long ago it happened. Not how well you have done since. The disposition. Read the sections below against what the court actually did in your case and you will know within a few minutes which conversation you are having.

What is the difference between an expunction and a nondisclosure?

An expunction orders the agencies holding the record to destroy or return it. The arrest entry, the booking record, the court file and the entry in the state repository held by the Texas Department of Public Safety all come out. Once the order is signed and the agencies have carried it out, Texas law lets you deny the arrest in most settings.

An order of nondisclosure is narrower. The record survives. The order seals it from much public access, which means the ordinary background check a landlord or a private employer runs does not return it. It does not close the record to every government user. Law enforcement still sees it. Certain licensing agencies still see it.

One is removal. The other is restricted access. Ordinary speech calls both of them expungement, which is where most of the confusion starts. Texas calls the first one expunction, and the statutes governing the two are not the same statute.

Who qualifies for an expunction in Texas

Expunction is available only in defined situations. The ones that come up most are an acquittal, a pardon, a qualifying dismissal, and an arrest that was never charged once the applicable waiting period has run.

• You went to trial and were found not guilty.
• You were convicted and later pardoned.
• The charge was dismissed and the dismissal meets the conditions the statute sets.
• You were arrested, a case was never filed, and the waiting period for that offense level has passed.

Every one of those carries conditions. A dismissal by itself is not automatically a qualifying dismissal, because the reason for the dismissal and what happened around it both matter. The largest surprise in this area is deferred adjudication that you completed. In ordinary speech the case was dismissed. For expunction purposes, it usually is not treated as one.

Who qualifies for an order of nondisclosure

Nondisclosure generally reaches people who were placed on deferred adjudication community supervision and completed it, along with some people holding certain convictions the statute names. There is also a list of offenses that can never be sealed, and a case on that list closes the door no matter how clean the years since have been.

Some nondisclosures require a waiting period after the case ends. Others are available on the day the judge dismisses the case and discharges you. Which applies turns on the offense, not on the county, so the answer in El Paso is the same answer you would get anywhere else in Texas.

The court also keeps discretion in many nondisclosure cases. Meeting the statutory requirements makes you eligible to ask. It does not make the order automatic, and the State can oppose it.

How deferred adjudication changes the answer

Deferred adjudication is the fork most cases turn on, so it is worth being precise about what it is. You pleaded guilty or no contest. The judge did not enter a finding of guilt. You were placed on community supervision, and at the end the case was dismissed and you were discharged.

That is not a conviction, which is the whole point of it. It is also not an acquittal, and the record of the arrest and the plea stays in place. For most people in that position, nondisclosure is the tool and expunction is not. If somebody told you that finishing deferred adjudication cleared your record, it did not. It means you are probably eligible to ask a court to seal it, which is a petition somebody has to file.

Where you file in El Paso County

You file where the case was handled, or in the district court of the county of arrest, depending on which petition you are bringing. El Paso district courts include the 34th, 120th, 168th, 171st, 210th, 243rd, 346th and 384th, plus Criminal District Court No. 1. County Court at Law No. 7 handles civil and criminal matters. Assignments change, so the current court directory governs rather than a list you read somewhere once.

If the arrest happened in Hudspeth County, that is a separate county with its own courts and filing offices, and the petition belongs there. If it happened in Anthony, Sunland Park, Santa Teresa or Las Cruces, you are in New Mexico, in Doña Ana County in the Third Judicial District, and New Mexico law controls. A Texas expunction order does nothing to a New Mexico record.

What the process looks like, from filing to the agencies

Both remedies start with a petition filed in court, not a form you mail in. The petition has to name every agency that touched the record, and that list is longer than most people expect.

• The arresting agency, which may be a police department, a sheriff's office or a state trooper.
• The jail that booked you.
• The prosecutor's office that handled the file.
• The clerk who holds the court record.
• The Texas Department of Public Safety, which holds the state repository.
• Any agency that received a copy of the record afterward.

The State receives notice and a chance to respond. Some petitions are agreed and some are set for a hearing. If the judge signs the order, the clerk sends it out and each named agency acts on its own copy on its own schedule.

That last step explains something that frustrates people. A record can still surface on a private background database months after an order is signed, usually because that company bought the data before the order issued and has not refreshed it. The answer there is the signed order plus follow up with the vendor, not a second petition.

What a sealed record still shows, and to whom

A nondisclosure order does not remove the record from government view. Law enforcement can see it. Certain licensing bodies can see it. Some employers, particularly in schools, health care and other positions the legislature has named, are entitled to the information when they ask through the right channel.

So when an application asks whether you have been arrested, and your record is sealed rather than expunged, the honest answer depends on who is asking and what the law permits them to see. That is worth working out with a lawyer instead of guessing. Answering wrong on a professional licensing application creates a second problem that is often larger than the first one.

What to bring before you talk to a lawyer about this

You can shorten this considerably by showing up with the record rather than the memory of it. Five items do most of the work.

• The cause number, or the citation or booking number if a case was never filed.
• The county and the court that handled it.
• The date of arrest and the name of the arresting agency.
• The disposition in the court's own words: acquitted, dismissed, deferred and discharged, convicted.
• Any paperwork you signed when the case ended.

With those, somebody can usually tell you in one sitting which remedy is even on the table and what the timing looks like. Without them, the first hour goes to pulling records you could have carried in.

This is general information about Texas procedure rather than advice about your record. Eligibility turns on statutory detail, and the same word on a docket sheet can qualify in one case and not in another. Somebody who has read the actual disposition can tell you which petition fits, and whether it is worth filing now or after a waiting period runs.