We just posted on our webpage a FAQ for the new DADJ nondisclosure procedure. In the interests of uniformity, we prepared form petitions for the three kinds of DADJs that may be eligible for the nondisclosure order, and form orders for the judiciary.

Here's the link:

Harris County DA DADJ Nondisclosure FAQ page

If it's going to be done anyway, we might as well do it right. Please advise if you see any errors in the page. Thanks!

Scott Durfee
Harris County District Attorney's Office

So I had a defense attorney file an exact copy of your form without a certificate of service or any proof of notice to the State. The hearing is tomorrow morning and I only know about it because I happened to stumble across the setting. I could file for Rule 21b sanctions and get his petition struck, right? I probably won't as long as his guy otherwise qualifies, but shouldn't proof of notice to the State be in the form?

On the subject, is there any requirement (or authority) for the clerk's office to seal the civil file containing the petition prior to the order being signed? There is apparently a concern that background investigation companies will troll for the petitions and copy the criminal file as soon as the petition is entered. This is complicated by our criminal and civil court files being available online. Is this a valid concern or an unfortunate consequence of how the system is arranged? Can a court file even be sealed without an order?

Does anyone else make it a condition of any plea agreement that the defendant waive his right to nondislosure? Interesting how in every other circumstance the public is for disclosure of public information. But not when a guy is actually guilty?

Why is there a civil file? I thought the petition was to be filed in the criminal case, using the criminal cause number, and an order signed by the judge of the court that handled the criminal case.

I can't find anything that says whether it should be filed as criminal or civil. Obviously, criminal would be easier for prosecutors and create one less file to nondisclose. Our county and district clerks file them as new civil cases in the court that heard the criminal case. Presumably this comes from the reference in the statute to charging civil filing fees.

What civil fee? I thought the statute allowed for a $28 fee under 411.081(d). It makes sense that the petition be filed in the criminal case, but I understand from our County Clerk that this has been a source of discussion among the elected clerk's.

... note that the Legislature changed some of this already; see HB 3093. The non-disclosure stuff was added to this bill during the last week of the session.

Shannon's right. The law has changed: the waiting periods have been reduced from 10 years to 5 years for felonies, and 5 years to 2 years for certain misdemeanors. They have also reduced the number of entities that have access to the nondisclosed information. (Not to worry: we still have access.) One saving grace: in addition to the $28 fee, the clerk will now be authorized to charge "any other fee that generally applies to the filing of a civil petition."

The private criminal history firms are also newly constrained by HB 3093:

If the Department of Public Safety receives information indicating that a private entity that purchases criminal history record information from the department has been found by a court to have committed five or more violations of Section 552.1425 by compiling or disseminating information with respect to which an order of nondisclosure has been issued, the department may not release any criminal history record information to that entity until the first anniversary of the date of the most recent violation.

This means that the DPS can deny access to its database to any private entities that are repeat nondisclosure scofflaws. It doesn't address, however, the private entities that subscribe to local county databases, like the Harris County JIMS system. If there are people abusing the local systems, I don't know that there's much that can be done.

Regarding the problem of petitioners failing to give adequate notice to the State, that's something we ironed out in Harris County with the clerk. We just require the petitioner to leave an extra copy with the clerk upon filing, and we go get the new filings from a dedicated mail slot once a day.

I will be updating my webpage in the next couple of weeks. If you have any suggestions for changing the forms, please let me know.

In her article on NDO's (The Prosecutor, May, 2004 at 20) Larissa Roeder says that 411.081 does not apply where the defendant received a "set aside" order under sec. 20(a) as opposed to an order under sec. 5(c), based primarily on the wording of subsection (f)(3) of 411.081 and the legislative history of SB 1477. This seems a weird choice, but apparently it was part of the compromise that got the bill passed. Anyone know for sure if any appellate court has agreed with this limitation in the statutory language?

Second question: Must the petitioner affirmatively plead both that he has not been convicted of or placed on deferred adjudication during the waiting period and that he has never been convicted or placed on deferred adjudication for e.g., an offense involving family violence, or is it the State's burden to come forward and prove non-entitlement. Do the civil pleading rules (e.g., Tex.R.Civ.P. 94) come into play? Would the non-entitlement provisions be considered an affirmative defense, i.e. matter constituting an avoidance if their inapplicability is not required to be proved as an element of the petitioner's claim? Since an NDO does not prohibit access to court records or original records of entry, why do defendants seek relief under 411.081 anyway? I also simply do not understand the phrase "information that is related to the offense for which a person is involved in the criminal justice system" in paragraph (b) in 411.081 and thus am unclear what paragraph (c) means as well. In light of the new "sealing" requirement in (g-1)is it still correct to say that "the State is not harmed even if a trial court grants an order of nondisclosure in a questionable case"? May sealed records still be disclosed under paragraph (d)? Does anyone really spend much time doing anything in response to these petitions? Has that changed since September 1?

Martin, the plain language of the 2003 bill made it applicable only to deferred adjudication cases. Strong efforts were made to keep it from applying to regular probation. The 2005 bill did not make it applicable to regular probation. If an appellate court tried to extend it, they should be popped.

[This message was edited by John Rolater on 09-28-05 at .]

[This message was edited by John Rolater on 09-28-05 at .]

John, I agree the language is plain, but I have at least one defense attorney who nevertheless wants more than the legislature gave. Just wanted to be sure whether I needed to argue anything other than the statutory language. Hope someone also has some answers to my second set of questions.

Attorney files petition for nondisclosure on a successfully completed deferred adjudication for misdemeanor assault - family violence.

Attorney argues that the statute says "a person is not entitled to petition the court under subsection (d) if the person has been previously convicted or placed on deferred adjudication for...any other offense involving family violence."

Attorney says that means you can petition unless (previous to the case that is the subject of the petition? previous to filing the petition?) you received deferred adjudication for another offense involving family violence. So, you can nondisclose your first assault - family violence.

This can't be right. Has anyone else encountered this argument? I cannot find any cases or AG opinions that directly address this claim. I thought it was obviously wrong at first, but given how poorly the statute is written.

Our office's interpretation of 411.081(e) construes the "applicable period described by Subsection(d)(1), (2), or (3), as appropriate" in a manner consistent with what I understood to be the intent of the bill -- to reward persons whose brush with the law was a one-time event.

Here's where I was coming from: If you look at Subsection (d), the period it describes is defined by when a person is permitted to make payment of the $28 fee to the court. By the terms of Subsection (d), that period begins either immediately after discharge, two years after discharge, or five years after discharge and continues until the person pays the fee.

There are obviously some holes in this interpretation, but the alternative interpretation describes a period of time that is non-existent (the subsection (a) period), which means that misdemeanor offenders can commit another offense immediately after getting off of probation and still ask for the sealing order. I don't believe that the Legislature intended a meaningless statutory provision, and I do believe that the Legislature intended to ding recidivists.

That all said, this is probably language that needs to be tightened up in the next session, one way or the other.