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

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

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

4. The Basics (Almost) nobody will know about it
(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

5. Eight Flavors of Nondisclosure
(Nonviolent Misdemeanors)
(Felon & Misdemeanor DFAJ)
(Veteran’s Court)
(Human Trafficking)
(Probated Misdemeanors)
(Probated Misdemeanor DWI)
(Misdemeanor Convictions)
(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

6. Eight Flavors of Nondisclosure
(Nonviolent Misdemeanors)
(Felon & Misdemeanor DFAJ)
(Veteran’s Court)
(Human Trafficking)
(Probated Misdemeanors)
(Probated Misdemeanor DWI)
(Misdemeanor Convictions)
(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.

7. Eight Flavors of Nondisclosure
(Nonviolent Misdemeanors)
(Felon & Misdemeanor DFAJ)
(Veteran’s Court)
(Human Trafficking)
(Probated Misdemeanors)
(Probated Misdemeanor DWI)
(Misdemeanor Convictions)
(Jail Misdemeanor DWI)
Retroactive
Successfully completed deferred adjudication
Clients can have priors, but see exclusion list under
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

8. Eight Flavors of Nondisclosure
(Nonviolent Misdemeanors)
(Felon & Misdemeanor DFAJ)
(Veteran’s Court)
(Human Trafficking)
(Probated Misdemeanors)
(Probated Misdemeanor DWI)
(Misdemeanor Convictions)
(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
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

9. Eight Flavors of Nondisclosure
(Nonviolent Misdemeanors)
(Felon & Misdemeanor DFAJ)
(Veteran’s Court)
(Human Trafficking)
(Probated Misdemeanors)
(Probated Misdemeanor DWI)
(Misdemeanor Convictions)
(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

10. Eight Flavors of Nondisclosure
(Nonviolent Misdemeanors)
(Felon & Misdemeanor DFAJ)
(Veteran’s Court)
(Human Trafficking)
(Probated Misdemeanors)
(Probated Misdemeanor DWI)
(Misdemeanor Convictions)
(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

11. Eight Flavors of Nondisclosure
(Nonviolent Misdemeanors)
(Felon & Misdemeanor DFAJ)
(Veteran’s Court)
(Human Trafficking)
(Probated Misdemeanors)
(Probated Misdemeanor DWI)
(Misdemeanor Convictions)
(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

12. Eight Flavors of Nondisclosure
(Nonviolent Misdemeanors)
(Felon & Misdemeanor DFAJ)
(Veteran’s Court)
(Human Trafficking)
(Probated Misdemeanors)
(Probated Misdemeanor DWI)
(Misdemeanor Convictions)
(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 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

13. Eight Flavors of Nondisclosure
(Nonviolent Misdemeanors)
(Felon & Misdemeanor DFAJ)
(Veteran’s Court)
(Human Trafficking)
(Probated Misdemeanors)
(Probated Misdemeanor DWI)
(Misdemeanor Convictions)
(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

14. 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

15. 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 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

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

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

18. 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