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Hammer O'Justice
Hammer O'Justice, Criminal Lawyer
Category: Criminal Law
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Experience:  9 years legal experience, primarily in criminal justice
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I have a felony and completed deferred adjudication probation

Resolved Question:

I have a felony and completed deferred adjudication probation in Walker County Texas 2002-2004, I have not been convicted or arrested for a felony sense but have been arrested, charged and convicted of misdemeanors in Texas sense 2006 last charge in 2009 and completed probation in 2010 am I still eligible have my felony expunged?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Hammer O'Justice replied 1 year ago.
Hello.

Deferred adjudication is not eligible for expungement but something called an order of non-disclosure, which doesn't expunge the record but seals it. Unfortunately, however, because if the additional charges you received you are no longer eligible for an order of nondisclosure. The law is as follows:

(d) Notwithstanding any other provision of this subchapter, if a person is placed on deferred adjudication community supervision under Section 5, Article 42.12, Code of Criminal Procedure, subsequently receives a discharge and dismissal under Section 5(c), Article 42.12, and satisfies the requirements of Subsection (e), the person may petition the court that placed the defendant on deferred adjudication for an order of nondisclosure under this subsection. Except as provided by Subsection (e), a person may petition the court under this subsection regardless of whether the person has been previously placed on deferred adjudication community supervision for another offense. After notice to the state and a hearing on whether the person is entitled to file the petition and issuance of the order is in the best interest of justice, the court shall issue an order prohibiting criminal justice agencies from disclosing to the public criminal history record information related to the offense giving rise to the deferred adjudication. A criminal justice agency may disclose criminal history record information that is the subject of the order only to other criminal justice agencies, for criminal justice or regulatory licensing purposes, an agency or entity listed in Subsection (i), or the person who is the subject of the order. A person may petition the court that placed the person on deferred adjudication for an order of nondisclosure on payment of a $28 fee to the clerk of the court in addition to any other fee that generally applies to the filing of a civil petition. The payment may be made only on or after:

(1) the discharge and dismissal, if the offense for which the person was placed on deferred adjudication was a misdemeanor other than a misdemeanor described by Subdivision (2);

(2) the second anniversary of the discharge and dismissal, if the offense for which the person was placed on deferred adjudication was a misdemeanor under Chapter 20, 21, 22, 25, 42, or 46, Penal Code; or

(3) the fifth anniversary of the discharge and dismissal, if the offense for which the person was placed on deferred adjudication was a felony.

(e) A person is entitled to petition the court under Subsection (d) only if during the period of the deferred adjudication community supervision for which the order of nondisclosure is requested and during the applicable period described by Subsection (d)(1), (2), or (3), as appropriate, the person is not convicted of or placed on deferred adjudication community supervision under Section 5, Article 42.12, Code of Criminal Procedure, for any offense other than an offense under the Transportation Code punishable by fine only.


As you can see in section (e) above, to obtain nondisclosure, you cannot be convicted of any offense not only during the period of deferred adjudication but also (because your case was a felony) for the five years after you were discharged. Since you were discharged in 2004, you would have had to have been clear of convictions through 2009 in order to be eligible for an order of nondisclosure.

Sorry I can't give you better news.
Hammer O'Justice, Criminal Lawyer
Category: Criminal Law
Satisfied Customers: 4092
Experience: 9 years legal experience, primarily in criminal justice
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