Texas Criminal Lawyer Blog

Texas Motions for Nondisclosure are only available to those who have been granted Deferred Adjudication by a Texas judge. Deferred Adjudication means that a judge will defer, or put off, finding the defendant guilty and will place him on probation or community supervision for a period of time. Deferred Adjudications are not expungable. They can only be nondisclosed; that is, be made unavailable to any entity other than law enforcement. This requires that a Motion for Nondisclosure be filed and usually involves a hearing in front of the convicting court.

Motions for Nondisclosure of Criminal Records became necessary as a response to the barrage of internet sites whose purpose was to make criminal records available to the general public. For many years before the internet explosion, the average client, as well as his lawyer, was secure in the assumption that upon successful completion of deferred adjudication any record would remain private. Some even mistakenly believed that an individual who had completed deferred was eligible for expunction of the arrest and conviction.

Unfortunately, this was not the case, and with the onslaught of internet providers,such records formerly kept hidden away in the courthouse were being placed on internet sites, and thus became easily available to potential employers, apartment complexes, schools, and even little league sports organizations doing background checks on potential coaches or volunteers.

With the support of the Texas Criminal Defense Lawyers Association, a bill was finally passed by the Texas Legislature addressing the disclosure problems brought on by the internet age. The original bill has since been amended to shorten waiting periods for felony deferred adjudication, and to allow most misdemeanors to be nondisclosed immediately upon successful discharge of the deferred sentence.

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There is a procedure available in Texas which is short of Expunction, but which limits the disclosure of a criminal record to law enforcement agencies only.

A person placed on Deferred Adjudication probation who is discharged after having successfully completed the term of community supervision may be eligible to petition the supervising court to order criminal justice agencies not to disclose the public criminal history record information related to the offense giving rise to the deferred adjudication.

In Texas, Deferred Adjudication is a term of community supervision imposed without a finding of guilt by the court. The defendant is later discharged without a final conviction upon successfully completing the terms and conditions of community supervision. It is distinguished from probation, as probation involves a final conviction and is not able to be expunged or nondisclosed.

There is no time period for filing a Motion for Nondisclosure of Criminal Record in most misdemeanor cases. Felonies have a 5 year wait after discharge by the court. Offenses involving family violence and sex offenses are not eligible for nondisclosure.

Most courts require a hearing, and rule on each case on its own individual merits. I do many of these for younger offenders who need clean records to go to school or find good jobs. It is such a good idea that I am surprised that our Legislature passed it.

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There is some good news and some bad news about the Expunction of criminal records in Texas. The good news is that a person placed under a custodial or noncustodial arrest for the commission of a felony or misdemeanor is entitled to have all records and files relating to the offense expunged. This procedure is complete, thorough, and final. It results in the total erasure of everything relating to the expunged arrest.

The bad news is, it is hard to get. A person has to have been either acquitted by a judge or jury, or if convicted, subsequently pardoned. Or, an indictment or information has either not been presented or, if presented, was dismissed or quashed. Further, if these conditions for expunction do exist, the statute of limitations has to have already expired, or a court has to have found that such indictment was presented by fraud or by mistake.

Expunction is also available if the Defendant was released with no final conviction, and without having served any period of probation. Expunction is not available to anyone who received Deferred Adjudication or any form of Probation.

I get a lot of calls for Expunction these days, as criminal records are more public than ever before, and public records searches are commonly done by employers, apartment management, colleges, trade schools, and other such entities.

But the bottom line is this: if you were arrested and never went to court, chances are good you may be eligible for an Expunction of the arrest; if you went to court, however, you are probably out of luck, unless the case was dismissed.

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Black's Law Dictionary defines "Capital" as "affecting or relating to the head or life of a person; entailing the ultimate penalty.....A Capital Crime or Case is one for which the death penalty may, but need not necessarily, be inflicted."

In Texas, more people are killed by the state than in all the western and "first world" or modern countries, combined. It is only when we take into consideration 'third world" countries, in which human life is considered cheap and expendable, that the Lone Star State is eclipsed in its zest for the ultimate punishment.

Capital cases are prosecuted at the sole discretion of the local District Attorney, upon whom the decision lies whether to present a case as a death or non-death case. The most common Capital case is one involving a murder committed in the act of committing another felony;such as, robbery, sexual assault, or burglary, Later modifications of the law included serial killings and murder of a police officer or prison guard.

Harris County (Houston), America's 4th largest city, is the first city of the death penalty, "the capitol of capital cases". The Houston District Attorney's office had 6 death cases lined up and ready to go after the Supreme Court of the United States upheld the constitutionality of the practice of "lethal injection" used by Texas and other states.

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Title 18, Section 371 of the United States Code sets forth a separate crime for Conspiracy to commit any offense listed in the U.S. Penal Code. Conspiracy has a maximum punishment of Five years.

So if someone is charged with the Bank Fraud, for instance, that person can also be charged with Conspiracy to commit Bank Fraud.

Conspiracy requires that two or more people conspire to commit a Federal crime, and that one or more of these individuals do any act (sometimes referred to as an overt act) to effect the object of the conspiracy.

To be charged with Conspiracy, therefore, two or more individuals must not only discuss,scheme, or otherwise plan to commit a Federal Crime, but one or more of them must do something to accomplish the goal or object of the conspiracy.

Federal Conspiracy Laws are a powerful tool in "White Collar" cases involving multiple parties and complex financial transactions.

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Texas is unique among states in that it has two ultimate appeals courts: The Texas Supreme Court, which handles civil appeals from state trial courts and lower appellate courts, and The Court of Criminal Appeals, which handles only Criminal appeals. Appeals from lower courts are not automatic, however. A Petition for Discretionary Review, or "PDR" is filed by the Appellant (party filing the appeal) and it is up the discretion of the Court of Criminal Appeals to decide to hear the appeal.

The Court of Criminal Appeals also handles post-conviction writs of Habeas Corpus which are first filed in the court of conviction for "fact-finding" hearings. The results of these hearings are then forwarded by the District Judge to the Court of Criminal Appeals with a recommendation as to the action to be taken. The writ is also known as an "11.07 writ," shorthand for Rule 11.07 of the Texas Code of Criminal Procedure, where the rules for filing this pleading are found.

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The term "White Collar crime" is a generic one; that is, it refers generally to crimes committed by the use of the pen rather than the sword. There is no legal definition of the word, whose origin is probably journalistic in nature.

Most people think of street crimes such as murder, robbery, theft, burglary, assault, sexual assault and the like when the term "Crime" is used. "White Collar" crimes usually refer to embezzlement, mail fraud, wire fraud, money laundering, mortgage fraud, bank fraud, and many Federal conspiracy crimes.

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Article 21.01 of the Texas Code of Criminal Procedure states that an indictment "is the written statement of a grand jury accusing a person therein named of some act or omission which, by law, is declared to be an offense."

Black's Law Dictionary further defines an indictment as "an accusation in writing found and presented by a grand jury, legally convoked and sworn, to the court in which it is impaneled, charging that a person therein named has done some act, or been guilty of some omission, which by law, is a public offense, punishable on indictment."

Old Constitutional law distinguished an indictment as being " preferred at the suit of the government, and is usually framed in the first instance by the prosecuting officer of the government, and by him laid before the grand jury, to be found or ignored."

In Texas, the District Attorney prepares the accusation and presents it to the Grand Jury through a state's witness, usually a law enforcement officer. The Grand Jury only has to find that a crime was probably committed, and that the person accused (in the written accusation prepared by the prosecutor) probably did it.

The Indictment is the first step into the system for a person accused of a crime. The process has begun whereby the case goes to a District Court, attorneys are retained or appointed by the court, and the person becomes a "Defendant" to be tried by a jury or a judge.

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Subpoena comes from the Latin "Sub" (under) and "poena" (penalty). Black's Law Dictionary defines the word as " A process to cause a witness to appear and give testimony, commanding him to lay aside all pretenses and excuses, and appear before a court or magistrate therein named at a time therein mentioned to testify for the party named under a penalty therein mentioned."

A subpoena is issued by the clerk of the court where the appearance of the witness is required, upon the application of the attorney for the party requesting the subpoena.

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Hearsay is what somebody else told the witness. "She told me that...." I heard that...." Simply put, hearsay is something somebody else said, rather than what the witness saw or did. It can be quite complicated, and many volumes have been written about it. I always tell a witness not to testify what somebody else said, but just tell the jury what he/she witnessed, not what somebody else told them about what happened.

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