Criminal Records, Expungement After deferred adjudication......

[motherofateen]

Is deferred adjudication the best way to go for two class C misdemeanor charges?
The goal would be to eventually apply for expungement. Someone told me that in TX, you can not be eligible for expungement if you got deferred adjudication. Is this true?
The charges were for MIC and Theft under 50.00.

 

[vmcmurry]

That is not necessarily true. There is somewhat conflicting interpretation by courts, but generally if it is a Misdemeanor C in JP or Municipal Court, it can be expunged (See Below). Nevertheless, it sounds like you could seal it through a Non-Disclosure Order following the completion of the Deferral period which is almost as good. This prevents it from being disclosed during a background check, but it doesn't destroy the record like an expungement. Thus, you are probably okay doing deferred on 2 Class C Misdemeanors esp since this is about the best case scenario you can expect other than being acquitted. I Hope this helps. If you need help with filing for an Expungement or NonDisclosure Order, I pursue these. You can contact me at vance@mcmurrymcmurry.com . Good Luck.

Vance



Tex. Code Crim. Proc. art. 45.051 (2004)
Art. 45.051. Suspension of Sentence and Deferral of Final Disposition
(a) On a plea of guilty or nolo contendere by a defendant or on a finding of guilt in a misdemeanor case punishable by fine only and payment of all court costs, the judge may, at the judge's discretion, defer further proceedings without entering an adjudication of guilt and place the defendant on probation for a period not to exceed 180 days. An order of deferral under this subsection terminates any liability under a bail bond or an appearance bond given for the charge.
...
(c) On determining that the defendant has complied with the requirements imposed by the judge under this article, the judge shall dismiss the complaint, and it shall be clearly noted in the docket that the complaint is dismissed and that there is not a final conviction. If the complaint is dismissed, a special expense not to exceed the amount of the fine assessed may be imposed. Other than an offense under Section 545.413, Transportation Code, this subsection does not apply to an offense involving the operation of a motor vehicle.
(d) If by the conclusion of the deferral period the defendant does not present satisfactory evidence that the defendant complied with the requirements imposed, the judge may impose the fine assessed or impose a lesser fine. The imposition of the fine or lesser fine constitutes a final conviction of the defendant.

(e) Records relating to a complaint dismissed as provided by this article may be expunged under Article 55.01. If a complaint is dismissed under this article, there is not a final conviction and the complaint may not be used against the person for any purpose.
...

Tex. Gov't Code § 411.081 (2004)
§ 411.081. Application of Subchapter

(d) Notwithstanding any other provision of this subchapter, if a person is placed on deferred adjudication community supervision under Section 5, Article 42.12, Code of Criminal Procedure, subsequently receives a discharge and dismissal under Section 5(c), Article 42.12, and satisfies the requirements of Subsection (e), the person may petition the court that placed the defendant on deferred adjudication for an order of nondisclosure under this subsection. After notice to the state and a hearing on whether the person is entitled to file the petition and issuance of the order is in the best interest of justice, the court shall issue an order prohibiting criminal justice agencies from disclosing to the public criminal history record information related to the offense giving rise to the deferred adjudication. A criminal justice agency may disclose criminal history record information that is the subject of the order to an individual or agency described by Section 411.083(b)(1), (2), or (3). A person may petition the court for an order of nondisclosure on payment of a $ 28 fee to the clerk of the court. The payment may be made only on or after:

(1) the discharge and dismissal, if the offense for which the person
was placed on deferred adjudication was a misdemeanor other than a
misdemeanor described by Subdivision (2);

(2) the fifth anniversary of the discharge and dismissal, if the
offense for which the person was placed on deferred adjudication was a
misdemeanor under Chapter 20, 21, 22, 25, 42, or 46, Penal Code; or

(3) the 10th anniversary of the discharge and dismissal, if the offense
for which the person was placed on deferred adjudication was a felony.

(e) A person is entitled to petition the court under Subsection (d) only if during the applicable period described by Subsection (d)(1), (2), or (3), as appropriate, the person is not convicted of or placed on deferred adjudication community supervision under Section 5, Article 42.12, Code of Criminal Procedure, for any offense other than an offense under the Transportation Code punishable by fine only. A person is not entitled to petition the court under Subsection (d) if the person has been previously convicted or placed on deferred adjudication for:

(1) an offense requiring registration as a sex offender under Chapter
62, Code of Criminal Procedure;

(2) an offense under Section 20.04, Penal Code, regardless of whether
the offense is a reportable conviction or adjudication for purposes of
Chapter 62, Code of Criminal Procedure;

(3) an offense under Section 19.02, 19.03, 22.04, 22.041, 25.07, or 42.
072, Penal Code; or

(4) any other offense involving family violence, as defined by Section
71.004, Family Code.

(f) For purposes of Subsection (d), a person is considered to have been placed on deferred adjudication community supervision if, regardless of the statutory authorization:

(1) the person entered a plea of guilty or nolo contendere;

(2) the judge deferred further proceedings without entering an
adjudication of guilt and placed the person under the supervision of
the court or an officer under the supervision of the court; and

(3) at the end of the period of supervision the judge dismissed the
proceedings and discharged the person.

(g) When an order of nondisclosure is issued under this subsection, the clerk of the court shall send a copy of the order by certified mail, return receipt requested, to the Crime Records Service of the Department of Public Safety. The Department of Public Safety shall send a copy of the order by mail or electronic means 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 have criminal history record information that is the subject of the order.

(h) The clerk of a court that collects a fee under Subsection (d) shall remit the fee to the comptroller not later than the last day of the month following the end of the calendar quarter in which the fee is collected, and the comptroller shall deposit the fee in the general revenue fund. The Department of Public Safety shall submit a report to the legislature not later than December 1 of each even-numbered year that includes information on:

(1) the number of petitions for nondisclosure and orders of
nondisclosure received by the department in each of the previous two
years;

(2) the actions taken by the department with respect to the petitions
and orders received; and

(3) the costs incurred by the department in taking those actions.

 

[vmcmurry]

In addition to what I said above, if your child is a juvenile, they can seal their records when they are 21.

 

[freedomfighter4]

So what happened?

Its been a few months since your last post....what happened?