Motion for Nondisclosure in a DWI Case

Even if you are not eligible to have your criminal record erased through an expunction, you might be eligible to apply for a motion for non-disclosure in a DWI case pursuant to Section 411.0716. The new legislation took effect on September 1, 2017, but it now applies to cases resolved before and after that date.

The motion for nondisclosure can be filed in a DWI case in Texas if you completed a deferred adjudication probation program. With deferred adjudication, the court finds the existance of a factual basis and sufficient evidence to convict you, but postpones or defers a finding of guilt.

In these cases, if you successfully complete your probation the case is dismissed with no final conviction. You become eligible to file the motion for nondisclosure of the DWI case after: 

  • two years from the date probation is completed if an ignition interlock device was order for at least six months; or
  • five years from date probation is completed if there was no ignition interlock device ordered for at least six months.

Not all DWI cases are eligible for this process including any case for DWI with a breath or blood alcohol level of 0.15 or more that is punished as a Class A misdemeanor. Also, a DWI that involves an accident with another vehicle or an injury to any passenger might not be eligible for this process.

Alternatively, the DWI nondislcosure can be granted even afer a person pleads guilty and receives probation, although in those cases, the waiting period is 3 years or 5 years.

Attorney for the DWI Motion for Nondisclosure in Texas

The attorneys at The Law Offices of Richard C. McConathy file and litigate motions for the nondisclosure of a criminal history record in a DWI cases pursuant to Tex. Gov’t Code § 411. This process to remove a DWI case from your criminal history record took effect on September 1, 2017.

Although an expunction will erase your criminal record from public view and most law enforcement agenicies, a motion for non-disclosure seals your criminal record from the public but allows it to remains available to law enforcement agencies.

An experienced DWI attorney can help you file the motion and can stand beside you during any hearing on the motion. This article includes a sample form that can be used for the “motion for the nondisclosure of a criminal history record.

Our DWI attorneys represent clients throughout the greater Dallas-Fort Worth area. Contact us to set up an office consultation an one of our offices conveniently located in Dallas, Fort Worth, Allen, Denton or Plano, TX. Call (972) 233-5700 today.


Types of Motions for Nondisclosure in Texas

The different types of motions for nondisclosure petitions include:

  • Section 411.072 – for Deferred Adjudication, Community Supervision, Certain Nonviolent Misdemeanors;
  • Section 411.0725 for Deferred Adjudication, Community Supervision; Felonies and Certain Misdemeanors;
  • Section 411.0727 for the Procedure Following Successful Completion of Veterans Treatment Court Program;
  • Section 411.0728 for Victims of Trafficking of Persons;
  • Section 411.073 for Community Supervision Following Conviction and Certain Misdemeanors
  • Section 411.0731 for Procedure for Community Supervision Following Conviction for Certain Driving While Intoxicated Convictions effective September 1, 2017;
  • Section 411.0735 for Conviction and Confinement for Certain Misdemeanors;
  • Section 411.0736 for the Procedure for Conviction or Certain Driving While Intoxicated Convictions effective September 1, 2017.

Additional Resources

OCA Overview of Orders of Nondisclosure from 9/1/17 – Visit the website of the State of Texas Office of Court Administration to find an overview of Orders of Nondisclosure published on September 1, 2017. The article explains the purpose of the order of nondisclosure, the changes that recently became effective, the basic eligibility requirements, and selecting the appropriate procedures for requesting an order of nondisclosure.


[Insert the Caption of the Case]

MOTION FOR the NONDISCLOSURE OF A CRIMINAL HISTORY RECORD

Now comes Petitioner [insert the Petitioner’s name] in the above entitled case, by and through the undersigned attorney, and files this “Motion for the Nondisclosure of a Criminal History Record” pursuant to Tex. Gov’t Code § 411.

In support of the motion, Petitioner shows the following:

  1. On [insert date], Petitioner was convicted for an offense under Section 49.04, Penal Code, other than an offense punishable under Subsection (d) of that section.
  2. Petitioner was placed on community supervision under Article 42A, Code of Criminal Procedure, and the period of community supervision was completed, including any term of confinement imposed and payment of all fines, costs, and restitution imposed.
  3. Petitioner satisfies the requirements of § 411.0731 and Section 411.074 and has never been previously convicted of or placed on deferred adjudication community supervision for another offense other than a traffic offense that is punishable by fine only.
  4. The petition is filed on or after the second anniversary of the date of completion of community supervision as the petitioner successfully complied with a condition of community supervision that, for a period of not less than six months restricted the person’s operation of a motor vehicle equipped with an ignition interlock device;
    [alternatively]
  5. The petition is filed on or after the fifth anniversary of the date of completion of community supervision.
  6. Petitioner’s Motion is brought in the interest of justice.
  7. Petitioner has attached to this motion, a copy of the order discharging defendant or of the clerk’s record indicating sentence is complete (see Exhibit “A”).

THEREFORE, petitioner requests this Court set this Motion for a hearing. After the hearing or before the hearing, if the state does not request a hearing before the 45th day after the state received notice, petitioner requests that this Court issue an Order of Nondisclosure of the criminal history to the Crime Records Division of The Texas Department of Public Safety.

Additionally, Petitioner requests that the Department of Public Safety send a copy of the Court’s Order to all law enforcement agencies, jails, or other detention facilities, magistrates, courts, prosecuting attorneys, correctional facilities, central state depositories of criminal records and other officials or agencies or other entities of this state or of any political subdivision of this state, and to all central federal depositories of criminal records that there is a reason to believe have criminal history record information that is subject to this order.

[insert name of attorney and signature line]

[insert the certificate of service]


[Insert the Caption of the Case]

MOTION FOR the NONDISCLOSURE OF A CRIMINAL HISTORY RECORD

Now comes Petitioner [insert the Petitioner’s name] in the above entitled case, by and through the undersigned attorney, and files this “Motion for the Nondisclosure of a Criminal History Record” pursuant to Tex. Gov’t Code § 411.

In support of the motion, Petitioner shows the following:

  1. On [date], Petitioner was convicted for an offense under Section 49.04, Penal Code, other than an offense punishable under Subsection (d) of that section, and is not eligible for an order of nondisclosure of criminal history record under Section 411.0731.
  2. Petitioner has completed the sentence, including any term of confinement imposed and payment of all fines, costs, and restitution imposed.
  3. Petitioner satisfies the requirements of § 411.0736 and Section 411.074 and Petitioner has never been previously convicted of or placed on deferred adjudication community supervision for another offense other than a traffic offense that is punishable by fine only.The petition is filed on or after the third anniversary of the date of
  4. the completion of the sentence, if the person successfully complied with a condition of the sentence that for a period of not less than six months, restricted the person’s operation of a motor vehicle to a motor vehicle equipped with an ignition interlock device.
    [alternatively]
  5. The petition is filed on or after the fifth anniversary of the date of completion of the person’s sentence.
  6. Petitioner’s Motion is brought in the interest of justice.
  7. Petitioner has attached to this motion, a copy of the order discharging defendant or of the clerk’s record indicating sentence is complete (see Exhibit “A”).

THEREFORE, petitioner requests this Court set this Motion for a hearing. After the hearing or before the hearing, if the state does not request a hearing before the 45th day after the state received notice, petitioner requests that this Court issue an Order of Nondisclosure of the criminal history to the Crime Records Division of The Texas Department of Public Safety.

Additionally, Petitioner requests that the Department of Public Safety send a copy of the Court’s Order to all law enforcement agencies, jails, or other detention facilities, magistrates, courts, prosecuting attorneys, correctional facilities, central state depositories of criminal records and other officials or agencies or other entities of this state or of any political subdivision of this state, and to all central federal depositories of criminal records that there is a reason to believe have criminal history record information that is subject to this order.

[insert name of attorney and signature line]

[insert the certificate of service]


[insert the caption]

ORDER FOR NONDISCLOSURE OF CRIMINAL HISTORY ON DWI MISDEMEANOR CONVICTION

On [insert date], this Court heard the above numbered Petition for Nondisclosure of Records.

Petitioner, [insert name], appeared with counsel. It appears that the Court has jurisdiction and all of the requirement of the law are met concerning the notice to the State having been complied with.

Pursuant to the local rules in the court in which the case is heard and all parties entitled to notice of these proceedings have received notice, the Court proceeded to hear evidence on the cause.

After the presentation of evidence and argument of counsel, it is the decision of the Court that the Petitioner is entitled to have the records nondisclosed as provided by law. The Court further finds that pursuant to Sec. 411 of the Tex. Gov’t. Code:

  1. The defendant was convicted of and completed the period of community supervision, including any term of confinement imposed and payment of all fines, costs, and restitution imposed and the community supervision was not revoked, for the offense under 49.04, Penal Code, other than an offense punishable under Subsection(d) of that section.

    [alternatively]

  2. The petitioner was convicted of and completed the sentence, including any term of confinement imposed, and payment of all fines, costs and restitution imposed, for the offense under 49.04, Penal Code, other than an offense punishable under Subsection(d) of that section.
  3. The petitioner defendant satisfies the requirements of Section 411.0731 or 411.0736 and Section 411.074 of the Tex. Government Code. The petitioner has never been previously convicted of or placed on deferred adjudication community supervision for another offense other than a traffic offense that is punishable by fine only.
  4. The attorney representing the state has not presented evidence sufficient to the court demonstrating that the commission of the offense for which the order is sought resulted in a motor vehicle accident involving another person, including a passenger in a motor vehicle operated by the petitioner.
  5. The time period proscribed by § 411.0731 or § 411.0736 has expired.

The Petitioner has established that is in the best interest of justice to enter this order of Nondisclosure.

IT IS THEREFORE ORDERED AND ADJUDGED that all records pertaining to the arrest of [insert name].

On [insert date], for the offense of [insert the name of the offense], and the court ordered conviction and sentence of confinement are ordered to be nondisclosed. Therefore, all criminal justice agencies are prohibited from disclosing to the public any criminal history record information relating to the offense giving rise to the conviction in this cause.

The DPS tracking incident number is ________.
Petitioner’s Social Security Number is _______.
Petitioner’s Texas Driver’s License Number is _______.
Defendant is a [black/white/hispanic] [male/female] whose date of birth is _________.

IT IS FURTHER ORDERED AND ADJUDGED that the Clerk of this Court send a certified copy of this order to the Crime Records Section of the Department of Public Safety.

The Department of Public safety shall send a copy of this order by mail or electronic means to all law enforcement agencies, jails, or other detention facilities, magistrates, courts, prosecuting attorneys, correctional facilities, central state depositories of criminal records, and other officials or agencies or other entities of this state or of any political subdivision of this state, and to all central federal depositories of criminal records that there is reason to believe have criminal history record information that is the subject of this order; and all of the above agencies are hereby ordered to not disclose any and all records concerning the above arrest and subsequent conviction and sentence of confinement.

The Clerk of the court is ordered to give Defendant’s attorney two certified copies of this Order of Nondisclosure.

Pursuant to Section 411.0755 of Texas Government Code, the Petitioner is not required in any application for employment, information, or licensing to state that the person has been the subject of any criminal proceeding related to the information that is the subject of this order.

Entered this the day of [insert date]

[insert name and signature line of the presiding judge]


 This article was last updated on Wednesday, May 9, 2018.

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