Second Chances

That One Dumb Mistake

As a criminal attorney the phone call I receive the most, the online post I see the most, the question I get asked when I meet someone the most is always, “So I have this misdemeanor conviction from several years ago and I’ve never been in trouble before and have never been in trouble since…how can I get the conviction off my record?”  And, unfortunately, my answer is always “You can’t.  Period.”

Seriously, it happens ALL THE TIME.  People do something dumb when they’re young (or not so young) and then plead guilty and face the consequences, a lot of times without the benefit of a lawyer, resulting in a permanent criminal record, only to quickly discover that one mistake will forever make their lives infinitely more difficult.

But on September 1st of this year, a new law in Texas went into effect, forever changing what mistakes will forever follow you.  Senate Bill 1902 achieved two great strides in who gets to seal their criminal record and how they get to do so, and this post is going to compare and contrast who was eligible to have their record sealed prior to September 1, and who will be eligible for this second chance from here on out.

First, however, it’s imperative that we draw a very necessary distinction that often gets blurred and confused by the general public: expunctions versus orders of nondisclosure (ONDs).  An expunction is a mechanism whereby you can erase any mention or trace of ever being arrested, and is only granted to those whose cases were dismissed or acquitted at trial (or arrested but never indicted).  An Order of Nondisclosure, on the other hand is commonly referred to as “sealing” and does effectively that very thing – it seals your record from schools, employers, and other entities in the public, but does not erase your record.  In fact, under an OND, your record remains perfectly and plainly visible to law enforcement and certain government agencies.  For purposes of this post, we will be talking only about ONDs, and only about how they pertain to misdemeanor offenses, as that was the focus of the new law.

Prior to September 1, 2015

Before the new SB 1902 went into effect, the rule was that if you were convicted of a crime – any crime, you had absolutely no way to hide that conviction from anyone.  No exceptions.

The law surrounding Orders of Nondisclosure is actually really complex, with plenty of exceptions and exclusions, but the general rule was this:  If you were charged with a crime (for purposes of this discussion, a misdemeanor) and received deferred adjudication as your sentence, and you successfully completed that deferred adjudication, then you could apply for an OND  after your probation ended, provided you had not committed any other crimes in the meantime.

Let’s break that down:

1.  If you received deferred adjudication.
In criminal law, there are two types of probation – straight probation and deferred adjudication.  The probation period and requirements look identical between the two different types.  The difference is that straight probation results in a final conviction, whereas, deferred adjudication does not result in a conviction if you successfully complete it.
In the past, in order to qualify for an OND, you could not be convicted – that means you could not receive jail sentence and you could not receive straight probation.  Only those who receive deferred adjudication could ever be eligible.

2.  Successfully complete deferred adjudication.
That means no missteps while on probation.  To qualify for an OND, you must make it through the probation without ever having your probation adjudicated (revoked).

3.  Commit no other crimes.
Makes sense.  If you want to seal your criminal record because this was a one time mistake – it should actually be a one time mistake.

4.  File a motion.
For most eligible crimes, you could file a petition for nondisclosure as soon as you are successfully and finally discharged from your deferred probation, others you have to wait 2 years.  Either way, under the old law, you had to file a motion, give notice to the prosecutor, and then have a hearing in front of the judge for the judge to determine if you were in fact entitled to an OND.

After September 1, 2015

On September 1st, SB 1902 went into effect and implemented two major changes for Orders of Nondisclosures.

First, to anyone who would have qualified for an OND under the original law, and was eligible to petition the court as soon as they were discharged from probation, that process has been streamlined.  Under the new law, as soon as you complete and are discharged from deferred adjudication, the judge will enter the order and all you have to do is pay the clerk fee.  There’s no petition that you have to hire a lawyer to draft, there’s no hearing that has to be held; the judge just enters the order automatically.

The biggest practical effect of this first change is that for the group of individuals who qualify for an OND immediately upon completion of their probation, the need to pay a lawyer to help seal your record is eliminated.  This is a huge relief to someone who has already spent thousands of dollars on attorney’s fees, court costs, fines, and monthly probation dues.

The other, and much more exciting change to the law is that SB 1902 allows individuals who were actually convicted of certain non-violent (and non-DWI, and non-guns, and plenty of non-other things) misdemeanors to have their records sealed.

The new law breaks down different requirements for receiving an OND based on whether you were sentenced to probation or jail time, but under the right set of circumstances, both are potentially eligible for an OND.

For those placed on probation…

1.  You must successfully complete the probation.
An individual cannot be revoked while on probation – you have to actually be successful on community supervision.

2.  If the offense was non-violent, you can apply after you finish your probationary term.  If the offense was assaultive (or one of the several other less common exceptions) you can apply 2 years after you finish your probationary term.

3.  Unlike the new streamlined process for eligible candidates who have completed deferred adjudication, if you were on straight probation, you must file a petition, give notice to the State, and possibly have a hearing before a judge enters an OND.

For those sentenced to jail time…

1.  Wait 2 years after you complete your sentence.

2.  File the petition, give notice to the State, and possibly have a hearing in front of the judge.

So what does this mean in the big picture?  It means that one stupid mistake doesn’t necessarily have to follow you around for life anymore.  As an attorney the most exciting example to me is theft.

We all know that idiot in high school who thought it would be cool to see if he could get away with stealing a DVD from Wal Mart, or MissMe jeans from Penny’s. Every year I speak at a middle school career day and I tell the students that stealing is the absolute worst thing they can do to their future because employers, schools, even apartment complexes look at a theft charge like it is a murder charge.  It seriously ruins lives.

But it’s not just theft.  Any criminal history follows you for life and if you don’t believe me, start paying attention to your applications.  Every application you fill out in life asks about whether you’ve ever been convicted of a crime – job applications, college applications, credit applications, online dating applications.  Even if you rise above that one mistake and get a college degree and a good job, there inevitably comes that time where you and one other equally-qualified candidate are vying for the same opportunity and the only difference between the two of you is the fact that you have a misdemeanor conviction on your record.  Who do you think is getting that job?

But now, thanks to SB 1902, Texas has joined the growing trend among other states giving people that true second chance.  Now, when someone gets caught up with the wrong crowd, finds themselves making a bad decision because they fell on hard times, or just plain being dumb, they can still have the chance to protect their future.

Before you get all excited about sealing your record for that mistake you made in college, however, I have to confess that the new law only applies to offenses occurring after September 1, 2015.  It’s not perfect, but it is a tremendous step in the right direction.  A whole new generation of people will be able to get that job, will be able to get that apartment, will be able to pass that criminal background check as a result of the government granting them that coveted second chance.

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