Attorney Andy Nolen, Sealing Criminal Records in Texas

TEXAS CRIMINAL RECORDS

 

ARE DEFERRED ADJUDICATION RECORDS PUBLIC?

Yes. Many people mistakenly believe that deferred adjudication records are removed from a defendant's criminal history upon successful conclusion of the community supervision (probation) period, however the law does not provide for automatic expunction of deferred adjudication records.

CAN DEFERRED ADJUDICATION RECORDS BE MADE NON-PUBLIC?

Yes, in some instances. The way that deferred adjudication community supervision records can be made non-public for certain Class B, Class A, or felony offenses is by filing a Petition for Non-Disclosure. 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. This procedure, however, is unavailable for many offenses. Furthermore, if a defendant commits an offense after the deferred adjudication has been completed and before filing the petition, a defendant may be disqualified.

FOR WHICH OFFENSES IS THIS PROCEDURE UNAVAILABLE?

Under Section 411.081(e)(1)-(4), Government Code, anyone who has ever committed any of the following offenses (including as the offense for which the defendant received deferred adjudication) is not eligible 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
* Murder
* Injury to a child, elderly individual, or disabled individual
* Abandoning or endangering a child
* Violation of protective order or magistrate's order
* Stalking
* Any other offense involving family violence

WHICH DEFENDANTS ARE DISQUALIFIED FROM SEEKING AN ORDER OF NON-DISCLOSURE?

Any defendant who, after the date of discharge and dismissal, has been convicted or placed on deferred adjudication for any offense other than a traffic offense punishable by fine only.

WHEN CAN AN OTHERWISE ELIGIBLE DEFENDANT SEEK 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.

All felonies -- 5 years from date of discharge and dismissal.

The following misdemeanors -- 2 years from date of discharge and dismissal:

* Abuse of corpse
* Advertising for placement of child
* Aiding suicide
* Assault
* Bigamy
* Cruelty to animals
* Deadly conduct
* Destruction of flag
* Discharge of firearm
* Disorderly conduct
* Disrupting meeting or procession
* Dog fighting
* False alarm or report
* Harassment
* 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
* Riot
* 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

All other misdemeanors -- May file immediately upon discharge and dismissal.

If you are eligible, it is important to file a Petition for Non-Disclosure. Unless there is a court order of non-disclosure directing otherwise, records of a prosecution resulting in a deferred adjudication are publicly available in the District Clerk's records and the Justice Information Management System (JIMS) database maintained by Harris County, Texas.

FORT BEND County  Criminal Defense Attorney Andy Nolen has over 19 years  experience representing persons accused of committing criminal violations of State and Federal law.

 Richmond, Texas Criminal Attorney  Andy Nolen treats  every person they represent as if they were a friend and neighbor.   When you call, likely Andy Nolen will answer your call himself.  You will be dealing with Attorneys, not secretaries, assistants, or answering machines.

 If we can be of any assistance, or you just want to talk about your situation, please call Fort Bend County Criminal Defense Attorney  Andy Nolen at 832-480-8951.

Texas Juvenile Lawyer Andy Nolen Has Over 19 Years Experience

   As children, we all did something that we are embarrassed about or ashamed of.  We missed curfew, lied to our parents and even got grounded for errors in judgment.  Bad decision making often comes with childhood.  As adults, we realize that those errors and the resulting consequences were a fact of life.  Sometimes, however, the choices and errors in judgment of children involve committing a crime.

   Most of us can remember when we or a childhood friend stole a piece of candy from a store. While this act will result in a juvenile being locked up in jail, a more serious crime certainly might and probably will. If you or a juvenile in your life has been arrested for any criminal offense, it is extremely important that you hire an experienced juvenile defense attorney in your area to represent you.
Some of the most common criminal offenses that juveniles are arrested for are:

· Assault with bodily injury

· Shoplifting
· Burglary
· Unauthorized use of a motor vehicle
· DWI
· Drug offenses
· Trespassing
· Criminal mischief
· Sex offenses

A juvenile record negatively impacts the life of a child in many ways including college admissions, college loans, social relationships and employment. These consequences that can impact your child's future can be lessened or possibly prevented by an experienced juvenile defense attorney.

FORT BEND County  Criminal Defense Attorney Andy Nolen has over 22 years  experience representing persons accused of committing criminal violations of State and Federal law.

 Richmond, Texas Criminal Attorney  Andy Nolen treats  every person they represent as if they were a friend and neighbor.   When you call, likely Andy Nolen will answer your call himself.  You will be dealing with Attorneys, not secretaries, assistants, or answering machines.

 If we can be of any assistance, or you just want to talk about your situation, please call Fort Bend County Criminal Defense Attorney  Andy Nolen at 832-480-8951.

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ATTORNEY ANDY NOLEN: TEXAS PENAL CODE BURDEN OF PROOF

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PENAL CODE

TITLE 1. INTRODUCTORY PROVISIONS

CHAPTER 2. BURDEN OF PROOF

Sec. 2.01.  PROOF BEYOND A REASONABLE DOUBT.  All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 2.02.  EXCEPTION.  (a)  An exception to an offense in this code is so labeled by the phrase: "It is an exception to the application of . . . ."

(b)  The prosecuting attorney must negate the existence of an exception in the accusation charging commission of the offense and prove beyond a reasonable doubt that the defendant or defendant's conduct does not fall within the exception.

(c)  This section does not affect exceptions applicable to offenses enacted prior to the effective date of this code.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 2.03.  DEFENSE.  (a)  A defense to prosecution for an offense in this code is so labeled by the phrase: "It is a defense to prosecution . . . ."

(b)  The prosecuting attorney is not required to negate the existence of a defense in the accusation charging commission of the offense.

(c)  The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.

(d)  If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.

(e)  A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 2.04.  AFFIRMATIVE DEFENSE.  (a)  An affirmative defense in this code is so labeled by the phrase: "It is an affirmative defense to prosecution . . . ."

(b)  The prosecuting attorney is not required to negate the existence of an affirmative defense in the accusation charging commission of the offense.

(c)  The issue of the existence of an affirmative defense is not submitted to the jury unless evidence is admitted supporting the defense.

(d)  If the issue of the existence of an affirmative defense is submitted to the jury, the court shall charge that the defendant must prove the affirmative defense by a preponderance of evidence.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 2.05.  PRESUMPTION.  (a)  Except as provided by Subsection (b), when this code or another penal law establishes a presumption with respect to any fact, it has the following consequences:

(1)  if there is sufficient evidence of the facts that give rise to the presumption, the issue of the existence of the presumed fact must be submitted to the jury, unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact; and

(2)  if the existence of the presumed fact is submitted to the jury, the court shall charge the jury, in terms of the presumption and the specific element to which it applies, as follows:

(A)  that the facts giving rise to the presumption must be proven beyond a reasonable doubt;

(B)  that if such facts are proven beyond a reasonable doubt the jury may find that the element of the offense sought to be presumed exists, but it is not bound to so find;

(C)  that even though the jury may find the existence of such element, the state must prove beyond a reasonable doubt each of the other elements of the offense charged; and

(D)  if the jury has a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the presumption fails and the jury shall not consider the presumption for any purpose.

(b)  When this code or another penal law establishes a presumption in favor of the defendant with respect to any fact, it has the following consequences:

(1)  if there is sufficient evidence of the facts that give rise to the presumption, the issue of the existence of the presumed fact must be submitted to the jury unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact; and

(2)  if the existence of the presumed fact is submitted to the jury, the court shall charge the jury, in terms of the presumption, that:

(A)  the presumption applies unless the state proves beyond a reasonable doubt that the facts giving rise to the presumption do not exist;

(B)  if the state fails to prove beyond a reasonable doubt that the facts giving rise to the presumption do not exist, the jury must find that the presumed fact exists;

(C)  even though the jury may find that the presumed fact does not exist, the state must prove beyond a reasonable doubt each of the elements of the offense charged; and

(D)  if the jury has a reasonable doubt as to whether the presumed fact exists, the presumption applies and the jury must consider the presumed fact to exist.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 912, ch. 342, Sec. 2, eff. Sept. 1, 1975; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Amended by:

Acts 2005, 79th Leg., Ch. 288, Sec. 2, eff. September 1, 2005.

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Attorney Andy Nolen - Poverty and Crime

  decent provision for the poor is the true test of civilization. ~Samuel Johnson, lexicographer (1709-1784).

The Houston criminal and juvenile defense attorneys at the law firm of Andy Nolen and Associates understand the strong correlation between poverty and crime.  Many people become poor through no fault of their own.  Companies transfer their jobs overseas and they join the swelling ranks of the unemployed.  Once feeling like they could keep their heads above water, now they have no where to live.  Their homes fall into foreclosure and their dreams and aspirations for themselves and their children vanish before their eyes.  The safety net of unemployment benefits runs out and they grow desperate.  There are many reasons people become poor.

If you need a Houston criminal or juvenile defense lawyer to represent you or your child, call Andy Nolen right now at 832-480-8951.

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