What you need to know about an Order of Non-Disclosure; Your arrest record may not be as secure as you believe

Now that you’ve been to Court and obtained an Order of Non-Disclosure, you probably have questions about what that means, and what happens. The following are answers to some of the most common questions.

What does an Order of Non-Disclosure accomplish?

Once the judge signs the Order of Non-Disclosure, several things will happen. Within 14 business days, the clerk of the court must send a copy of the order to the Crime Records Service of the Department of Public Safety. That can be done by certified mail, or electronically. Within 10 business days after receipt of the order, the Department of Public Safety must seal any criminal history information covered by the order which are part of their records.

In addition to sealing the information in their own records, the Department of Public Safety must also send a copy of the 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 entities of the state or any political subdivision of the state.” Basically that means that any State or local governmental agency that might have a copy of the record should receive a copy.

They must also send a copy of the order to any central federal depository of criminal records that there is reason to believe may have criminal history information subject to the order.

Finally, the Department must send a copy of the order to any private entities that purchase criminal history information from the department, or are likely to have criminal information subject to the order. This is extremely important, since there are now a number of private companies that compile this information, and make it available to the public.

It is important to note that the time frames refer to business days, and not actual calendar days.

Once notice is received from the department the entity has 30 days to seal any criminal history information they have on the individual. Again, those are business days, and not calendar days.

What should I say when asked about my arrest?

One of the most frequently asked questions is how should you answer employment applications, and other applications which ask about criminal history. Section 411.081, of the Texas Government specifically addresses that question. Subparagraph (g)(2) states that  a person whose record has been sealed “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 an order issued under this section.” That means in most cases you can legitimately answer “no” to any of the questions asking about criminal history. However, there may be some exceptions, because even information that has been sealed can be disclosed to certain agencies.

Exempt agencies that can receive information

Currently there are 28 agencies that are authorized to receive information that is subject to an order of non-disclosure. Those are:

  1. The state board of educator certification
  2. A school district, charter school, private school, regional education service center, commercial transportation company, or education shared service arrangements
  3. Texas Medical Board
  4. Texas School for Blind and Visually Impaired
  5. Board of Law Examiners
  6. State Bar of Texas
  7. A district court regarding a petition for name change under Subchapter B, Chapter 45, Family Code
  8. Texas school for the Deaf
  9. Department of Family and Protective Services
  10.  Texas Juvenile Justice Department
  11.  Department of Assistive and Rehabilitative Services
  12.  Department of State Health Services, a local mental health service, a local mental retardation authority, or a community center providing services to persons with mental illness or retardation
  13.  Texas Private Security Board
  14.  A municipal or volunteer fire department
  15.  Texas Board of Nursing
  16.  A safe house providing shelter to children in harmful situations
  17.  A public or nonprofit hospital or hospital district, or a facility as defined by Section 250.001, Health and Safety Code
  18. The securities commissioner, the banking commissioner, the savings and mortgage lending commissioner, the consumer credit commissioner, or the credit union commissioner
  19.  Texas State Board of Pubic Accountancy
  20.  Texas Department of Licensing and Regulation
  21.  Health and Human Services Commission
  22.  Department of Aging and Disability services
  23.  Texas Education Agency
  24.  Judicial Branch Certification Commission
  25.  A county clerk’s office in relation to proceeding for the appointment of guardian under Title 3, Estates Code
  26.  The Department of Information Resources but only regarding an employee, applicant for employment, contractor, subcontractor, intern or volunteer who provides network services under Chapter 2059 to:
    1. The Department of Information Resources
    2. A contractor or subcontractor of the Department of Information Resources
  27.  Texas Department of Insurance
  28.  Teacher Retirement System of Texas, and
  29.  Texas State Board of Pharmacy

If you are applying to one of these agencies, or filling out some type of form for them, be mindful that they are going to be able to obtain information regarding your case, even though it has been sealed.

What happens to the Court records?

So what happens to the court records of your case? The Clerk must seal the court records “as soon as practicable” after sending the information to the Department of Public Safety. Once the record is sealed, information contained in those records can only be disclosed to a criminal justice agency for criminal justice or regulatory license purpose, to one of the agencies listed above, or the individual who is the subject of the order.

The process of Non-Disclosure is not perfect, and does not guarantee that records of your case will remain private. However, it is definitely an improvement over what existed before – which was nothing.

If you have any questions about the process, please do not hesitate to contact us.