Law Office of Tim Powers
Non-Disclosure is a great way for persons to get a fresh start after running
afoul of the law, getting deferred adjudication, and completing the deferred
successfully. Orders of Non-Disclosure seal those records from dissemination
into the public domain by the custodian of records, the Texas Department
of Public Safety. However, there's a hole in the statute resulting
from DWI arrest records that remain available to the public, even when
the person receives a "reduction" and completes a deferred adjudication
The hole involves cases of DWI arrests where a plea agreement is reached
on a "reduced" charge of obstructing a highway, reckless driving,
or a like offense in which the accused is eligible for deferred adjudication
(DWI is not deferred eligible in Texas). In Brazos County, the usual course
involves the prosecutor adding a "Count II" to the misdemeanor
complaint alleging obstructing a highway, etc. Count I, the DWI, is waived
and the accused pleads guilty to the obstructing count. The court grants
deferred and the client goes their merry way, successfully completing
After successfully completing the deferred the client comes back to me
and asks if they can get their records sealed using an Order of Non-Disclosure.
Of course they can. However, only the obstructing count will be sealed.
The DWI arrest will remain on their record despite the completed deferred.
Why? Because only the obstructing count was deferred, not the DWI count.
Even if the clever defense lawyer includes the DWI arrest information
in the Order of Non-Disclosure, DPS will not seal the DWI arrest record.
expunction, you ask? Excellent point. However, the problem is Chapter 55 of the Code
of Criminal Procedure, which provides for expunction. Chapter 55 does
not authorize expunction for an arrest "unless" there was
court ordered community supervision resulting from the arrest (except
Class Cs). But we know there
court ordered community supervision for the obstructing a highway count.
Consequently, the person is not technically eligible for expunction of
the DWI arrest and the local prosecutors have been objecting to expunction
petitions on this precise issue in Denton County.
What's the net result of this hole in the Non-Disclosure statute? Presently,
even though a
good DWI defense lawyer may get the prosecution to reduce a DWI to a deferred eligible offense,
the accused person is stuck with a DWI arrest record that can neither
be sealed, nor expunged. A big problem for young person's having made
a mistake in college and now trying to develop careers in corporate America.
Hopefully, the Texas Legislature will eventually fix this problem since
the spirit of the Non-Disclosure law is being thwarted by a hole in the
statute resulting when DWIs are reduced to deferred adjudication eligible offenses.
If you are seeking aggressive criminal representation by an experienced
criminal defense attorney for your Denton County criminal case or arrest
in Denton County, contact the offices of Tim Powers today. There is no
charge or obligation for the initial consultation. 940.580.2899.
*Tim Powers is an attorney licensed to practice law by the Supreme Court
of Texas. Nothing in this article is intended to be legal advice. For
legal advice about any specific legal question you should directly consult