Art. 411.0728 non-disclosure after Drug Court graduation

What Article 411.0728 actually says

Section 411.0728 of the Texas Government Code is one of several statutory non-disclosure provisions clustered in Subchapter E-1 of Chapter 411. It is the drug-court-specific pathway, separate from the general deferred-adjudication non-disclosure in §411.0725 and the post-conviction non-disclosure in §411.0727.

The statute does three things. First, it identifies who may petition — drug-court graduates whose underlying offense is not on the bar list. Second, it sets the procedural framework for the petition. Third, it confirms that a successful order seals the record from public view but preserves access for the agencies listed in §411.0765.

The statute reads in tandem with Chapter 123 of the Government Code, which authorizes the drug-court programs themselves, and with §411.074, which contains the general bar list and prerequisites that apply across the non-disclosure subchapter.

Who qualifies — eligibility in detail

A petitioner under §411.0728 must satisfy four independent requirements. Missing any one is fatal to the petition.

1. Successful drug-court completion

The defendant must have completed a program established under Chapter 123 of the Texas Government Code. Informal drug-court arrangements, pretrial diversion programs, or out-of-state drug-court completions generally do not qualify unless the local program meets Chapter 123's requirements.

2. Underlying offense not on the bar list

The offense for which the defendant was placed on community supervision must not appear in §411.074(b). The bar list excludes family-violence offenses, several sex offenses, child-victim offenses, offenses against elderly or disabled victims, capital offenses, and certain others. Most drug-court underlying offenses are eligible because drug courts typically take possession and similar offenses, but the offense must be checked individually.

3. Completion of community supervision and other terms

The defendant must have completed all conditions of community supervision, including paying fines, costs, and restitution. A non-disclosure petition cannot be granted while a sentence is still being served.

4. Waiting period

The non-disclosure statute imposes waiting periods that vary with the offense classification. Misdemeanor underlying offenses typically have shorter waits than felony underlying offenses, with several exceptions enumerated in §411.0728 itself.

An additional implicit requirement is that the defendant must not have been convicted of certain other offenses during the waiting period. §411.074(a) prohibits non-disclosure if the petitioner was convicted of or placed on deferred adjudication for any offense other than a fine-only traffic offense during the waiting period or after the underlying offense.

Waiting periods and timing

Timing the §411.0728 petition correctly is the single most common source of denial. The waiting periods are not intuitive. Here is the framework as it operates in DFW practice:

The exact statutory language controls and the periods have shifted with legislative amendments. Counsel should always pull the current version of §411.0728 from statutes.capitol.texas.gov before filing rather than relying on practice notes.

The clock runs from the date community supervision was discharged or the program graduation date, whichever is later under the statute's framework. The petition itself must attach proof of the discharge date and the graduation date — usually the order discharging the defendant from supervision and the drug-court program's graduation certificate.

What the order does and does not do

A granted §411.0728 order seals the record from most public inquiries. It does not destroy the record. Understanding the practical reach is essential because clients regularly overestimate what non-disclosure accomplishes.

What it does: Once the order is final, the Texas Department of Public Safety and other Texas agencies must restrict access to the record. Private background-check companies that follow the law cannot disseminate the sealed record to private employers. The defendant may lawfully deny on most job applications that they have been arrested for the underlying offense, with certain exceptions for licensing applications.

What it does not do: The record continues to exist in law-enforcement databases. It remains visible to courts in subsequent proceedings, including for sentence enhancements under prior-conviction statutes. It remains visible to the agencies listed in §411.0765. Federal databases are not directly governed by the Texas non-disclosure regime — a Texas non-disclosure does not seal an NCIC record or an FBI background check for federal purposes.

The §411.0765 agency list is long and includes:

• Texas law-enforcement agencies and Department of Public Safety.
• Texas Education Agency and certain school districts.
• State Board for Educator Certification.
• Texas Medical Board and several other health-profession boards.
• Texas State Board of Pharmacy.
• State Bar of Texas.
• Texas Department of Family and Protective Services.
• Texas Juvenile Justice Department.
• Texas Lottery Commission.
• Several others enumerated in the section.

Clients pursuing licensed professions — particularly nursing, medicine, teaching, law, and pharmacy — should understand that the licensing board will continue to see the record even after the order issues. Non-disclosure improves the application picture; it does not erase the underlying disclosure obligation on a license application form that requires disclosure of all arrests.

Filing the petition

The §411.0728 petition is filed in the court that originally placed the defendant on community supervision. The petition must include:

1. The applicant's identifying information and date of birth.
2. Cause number, court, and date of the underlying community supervision.
3. The drug-court program name and date of graduation.
4. Attached graduation certificate or program order confirming successful completion.
5. Attached order discharging community supervision.
6. A sworn statement of compliance with the waiting period and the §411.074 prerequisites, including no intervening convictions.
7. Filing fee or appropriate fee waiver.

The State files a response. In Collin County and most surrounding counties, the prosecutor's office runs the criminal-history check independently to confirm there are no intervening offenses. A hearing is typically set unless the State agrees the petition is uncontested.

If the petition is contested, the typical dispute centers on one of three things: whether the drug-court program met Chapter 123's requirements; whether all fees, costs, and restitution were actually paid; or whether the waiting period was satisfied. Less common but possible are disputes about intervening offenses or about whether the “best interest of justice” standard in §411.0728 weighs against the order.

The best-interest factors that courts sometimes consider include the nature of the underlying offense, the defendant's rehabilitation evidence, the time elapsed since the offense, employment history during and after the program, and any factors specific to the case.

Common pitfalls and counsel’s checklist

Several recurring problems sink §411.0728 petitions in DFW practice. Counsel filing the petition should run through this checklist before signing:

• Unpaid balance. Even small unpaid balances on court costs or restitution disqualify the petitioner. Pull the court's current ledger before filing.
• Intervening charge. A second offense during the waiting period defeats the petition. Run a fresh DPS criminal-history check on filing day, not at intake.
• Drug-court certification. If the program is a county-level pretrial-diversion program rather than a Chapter 123-certified drug court, it may not qualify. Confirm with the program coordinator that the program is OCA-certified.
• Offense classification mismatch. If the petitioner pleaded down or up from the original charge, the offense on the judgment may be different from the offense charged. The judgment offense controls.
• Federal exposure. Clients pursuing federal licenses, security clearances, or immigration relief should understand that the Texas order does not affect federal databases.
• Bar-list creep. The §411.074 bar list expands periodically. Confirm against the current statute that the offense is not now barred.

If any item flags, address it before filing. A denied petition is not appealable on the same record, and re-filing requires curing the defect.

What graduation actually buys you

Drug-court graduation is itself the prerequisite for the §411.0728 pathway, but the broader benefit is more than the non-disclosure order. Graduation typically results in one of three case outcomes depending on the local program:

Dismissal of the underlying charge

Some Collin and Dallas County drug courts dismiss the case entirely upon graduation. If dismissed, the defendant may then be eligible for CCP Art. 55.01 expunction, which is stronger than non-disclosure.

Termination of deferred adjudication with no final conviction

Other programs allow the defendant to complete deferred adjudication early at graduation. The defendant is then eligible for non-disclosure under §411.0728 or §411.0725 depending on the offense.

Conviction with reduced sentence

Some programs leave the conviction intact but reduce custody or supervision terms. In that posture, §411.0728 non-disclosure may be the only sealing avenue available.

Defendants weighing whether to enter drug court should ask the program coordinator and their lawyer which posture the program produces and what sealing path is available after graduation. The answer changes the cost-benefit analysis significantly.

A defendant who completes drug court only to learn that no sealing path is available has invested 12 to 24 months in a program that mitigated the sentence but did not clean the record. Counsel structuring the plea up front can usually choose a posture that preserves at least the §411.0728 option.