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 is 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 may 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 a 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 also 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 criminal records
Currently, there are 28 agencies that are authorized to receive information that is subject to an order of non-disclosure. Those are:
- The State Board of Educator Certification
- A school district, charter school, private school, regional education service center, commercial transportation company, or education shared service arrangements
- Texas Medical Board
- Texas School for Blind and Visually Impaired
- Board of Law Examiners
- State Bar of Texas
- A district court regarding a petition for name change under Subchapter B, Chapter 45, Family Code
- Texas School for the Deaf
- Department of Family and Protective Services
- Texas Juvenile Justice Department
- Department of Assistive and Rehabilitative Services
- 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
- Texas Private Security Board
- A municipal or volunteer fire department
- Texas Board of Nursing
- A safe house providing shelter to children in harmful situations
- A public or nonprofit hospital or hospital district, or a facility as defined by Section 250.001, Health and Safety Code
- The securities commissioner, the banking commissioner, the savings and mortgage lending commissioner, the consumer credit commissioner, or the credit union commissioner
- Texas State Board of Public Accountancy
- Texas Department of Licensing and Regulation
- Health and Human Services Commission
- Department of Aging and Disability Services
- Texas Education Agency
- Judicial Branch Certification Commission
- A county clerk’s office in relation to proceeding for the appointment of a guardian under Title 3, Estates Code
- 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:
- The Department of Information Resources
- A contractor or subcontractor of the Department of Information Resources
- Texas Department of Insurance
- Teacher Retirement System of Texas, and
- 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 the 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.