Nondisclosure Nuts & Bolts Our little secret… Vincent Giardino, ACDA September 27, 2018 Sharen Wilson Criminal District Attorney

Our journey today The Basics Deal Killers Keep Calm and Run Their CCH Five Easy Steps

The Basics 411 Government Code, Subchapter E-1 Eligible: Deferred adjudications and convictions Not Eligible: Dismissals or plea in bar (12.45 CCP)

The Basics (Almost) nobody will know about it 411.0765(b) lists 32 separate entities that can still receive this information from DPS: School districts Medical Board Family and protective services Employers for facilities handling combustive materials

Eight Flavors of Nondisclosure 411.072 (Nonviolent Misdemeanors) 411.0725 (Felon & Misdemeanor DFAJ) 411.0727 (Veteran’s Court) 411.0725 (Human Trafficking) 411.073 (Probated Misdemeanors) 411.0731 (Probated Misdemeanor DWI) 411.0735 (Misdemeanor Convictions) 411.0736 (Jail Misdemeanor DWI) Many ways to qualify Possible to get relief even with past convictions or multiple offenses/co-defendants Only ~4700 nondisclosures were filed in all of Texas last year Cheaper than an expunction

Eight Flavors of Nondisclosure 411.072 (Nonviolent Misdemeanors) 411.0725 (Felon & Misdemeanor DFAJ) 411.0727 (Veteran’s Court) 411.0725 (Human Trafficking) 411.073 (Probated Misdemeanors) 411.0731 (Probated Misdemeanor DWI) 411.0735 (Misdemeanor Convictions) 411.0736 (Jail Misdemeanor DWI) Only for those released from DFAJ after 9/1/17 Not under Penal Code chapters 20, 21, 22, 25, 42, 43, 46, or 71 Penal Code No affirmative finding that nondisclosure is not in the best interest of justice No priors other than traffic code violations No rule saying the DA gets notice, but you shall present evidence to the court. Timing: Eligible as soon as they complete the DFAJ, so long as it was at least 180 days long.

Eight Flavors of Nondisclosure 411.072 (Nonviolent Misdemeanors) 411.0725 (Felon & Misdemeanor DFAJ) 411.0727 (Veteran’s Court) 411.0725 (Human Trafficking) 411.073 (Probated Misdemeanors) 411.0731 (Probated Misdemeanor DWI) 411.0735 (Misdemeanor Convictions) 411.0736 (Jail Misdemeanor DWI) Retroactive Successfully completed deferred adjudication Clients can have priors, but see exclusion list under 411.074 Best interest of justice Timing: Eligible upon discharge for some misdemeanors Or two years after discharge from a misdemeanor under chapters 20, 21, 22, 25, 42, 43, or 46 PC Or five years after discharge from a felony

Eight Flavors of Nondisclosure 411.072 (Nonviolent Misdemeanors) 411.0725 (Felon & Misdemeanor DFAJ) 411.0727 (Veteran’s Court) 411.0725 (Human Trafficking) 411.073 (Probated Misdemeanors) 411.0731 (Probated Misdemeanor DWI) 411.0735 (Misdemeanor Convictions) 411.0736 (Jail Misdemeanor DWI) If your client went through a Veteran’s Court Program with a conviction or deferred: Priors are not a bar, but nothing on the exclusion list in 411.074 No prior 42A.054(a) (formerly “3g” offenses) or sexually violent history No new felony convictions between completion of the program and a two year waiting period. Best interest of justice Not for DWI cases Timing: Two years after release

Eight Flavors of Nondisclosure 411.072 (Nonviolent Misdemeanors) 411.0725 (Felon & Misdemeanor DFAJ) 411.0727 (Veteran’s Court) 411.0725 (Human Trafficking) 411.073 (Probated Misdemeanors) 411.0731 (Probated Misdemeanor DWI) 411.0735 (Misdemeanor Convictions) 411.0736 (Jail Misdemeanor DWI) Committed offenses solely as a victim of human trafficking (must be proven) Convictions only for certain offenses: Class B possession or delivery of marijuana Class C or B theft Any prostitution case Class A promotion of prostitution Only after judicial clemency has been granted No prior nondisclosures under this section Timing: Only for convictions set aside after 9/1/17

Eight Flavors of Nondisclosure 411.072 (Nonviolent Misdemeanors) 411.0725 (Felon & Misdemeanor DFAJ) 411.0727 (Veteran’s Court) 411.0725 (Human Trafficking) 411.073 (Probated Misdemeanors) 411.0731 (Probated Misdemeanor DWI) 411.0735 (Misdemeanor Convictions) 411.0736 (Jail Misdemeanor DWI) Retroactive Successfully completed straight probation Anything other than DWI No priors other than traffic code violations Best interest of justice Timing: Eligible upon discharge Or two years after discharge from a misdemeanor under chapters 20, 21, 22, 25, 42, 43, or 46 PC

Eight Flavors of Nondisclosure 411.072 (Nonviolent Misdemeanors) 411.0725 (Felon & Misdemeanor DFAJ) 411.0727 (Veteran’s Court) 411.0725 (Human Trafficking) 411.073 (Probated Misdemeanors) 411.0731 (Probated Misdemeanor DWI) 411.0735 (Misdemeanor Convictions) 411.0736 (Jail Misdemeanor DWI) Retroactive Successfully completed probation on a first time DWI only No priors other than traffic code violations Not eligible if “Punishable” as over .15 or if there was an accident involving another person Burden on petitioner to prove they qualify Timing: Eligible two years after discharge if interlock was ordered for at least 6 mos. If no interlock, five years

Eight Flavors of Nondisclosure 411.072 (Nonviolent Misdemeanors) 411.0725 (Felon & Misdemeanor DFAJ) 411.0727 (Veteran’s Court) 411.0725 (Human Trafficking) 411.073 (Probated Misdemeanors) 411.0731 (Probated Misdemeanor DWI) 411.0735 (Misdemeanor Convictions) 411.0736 (Jail Misdemeanor DWI) Retroactive Has completed a jail sentence and paid all fines No priors other than traffic code violations No DWIs, violent, or sexual offenses (But assault under 22.01 is not violent according to the legislature) Best interest of justice Timing: Class C is eligible the date of release All others, wait two years

Eight Flavors of Nondisclosure 411.072 (Nonviolent Misdemeanors) 411.0725 (Felon & Misdemeanor DFAJ) 411.0727 (Veteran’s Court) 411.0725 (Human Trafficking) 411.073 (Probated Misdemeanors) 411.0731 (Probated Misdemeanor DWI) 411.0735 (Misdemeanor Convictions) 411.0736 (Jail Misdemeanor DWI) Successfully completed jail sentence on a first time DWI only and paid all fines No priors other than traffic code violations BAC must be under .15 and cannot involve an accident involving another person Timing: Eligible three years after discharge if interlock was ordered for at least 6 mos. If no interlock, five years

Deal Killer – 411.074 GC Part One: Waiting period danger Disqualified if they plead to another case*: After the date of the plea During the time they are on community supervision Before the end of any waiting period *Anything other than a traffic offense punishable by fine only Speeding or Red Light vs. Disorderly Conduct or PI

Deal Killer – 411.074 GC Part Two: The Exclusion List An offense requiring registration as a sex offender under Chapter 62 CCP; An offense under Section 20.04 PC (Aggravated Kidnapping) Murder, Capital Murder, Manslaughter, Abandoning or Endangering Child, Violation of Protective or Magistrate’s Order, or Stalking Any other offense involving family violence The court makes an affirmative finding that the requested case involved family violence

Deal Killer – Interest of Justice Tell it to the judge Remember res judicata

Is my client eligible? But what you really want to know is this: IS MY CLIENT ELIGIBLE?

Five Easy Steps Run your client’s CCH Google Public Access Texas CCH Cheat and copy the government’s homework: Google Texas OCA Nondisclosure File the petition in the court they plead in After 45 days you: Win by default if the state ignores the petition Win because the prosecutor drafted and had an order signed Have a hearing Get a copy of the order for your client from the clerk