What is SB 731 and what did it change?
Texas Senate Bill 731 (88th Leg., R.S. 2023) added Government Code §§ 411.0728 and 411.0735 to create automatic — non-petition — nondisclosure for first-time DWI deferred-adjudication completions and certain misdemeanor convictions, with phased effective dates beginning September 1, 2023.
- § 411.0728 — first-time DWI deferred adjudication
- Creates an automatic-sealing pathway for a person who successfully completes deferred adjudication community supervision for a first-time driving while intoxicated offense under Penal Code § 49.04, excluding the BAC-0.15-or-higher variant under § 49.04(d). The applicant must satisfy the waiting period (2 years with an ignition interlock device requirement under § 411.0728(c)(1), otherwise 5 years under § 411.0728(c)(2)) and be free of every statutory disqualifier enumerated in § 411.0728(b). The sealing issues from DPS at the end of the waiting period; no court petition is required.
- § 411.0735 — Class A and B misdemeanor convictions
- Creates an automatic-sealing pathway for certain Class A and Class B misdemeanor convictions after sentence completion and the running of the applicable waiting period — 2 years for Class B, 5 years for Class A under § 411.0735(c). This is the first Texas nondisclosure provision that reaches actual convictions rather than dismissed-on-completion deferred adjudication. The statute carves out a long list of disqualifying offense categories under § 411.0735(b) — sex offenses, family violence, deadly-weapon-finding offenses, 3g aggravated offenses, and several others.
- § 411.0725 — petition-based nondisclosure (existing, preserved)
- SB 731 did not eliminate the existing petition-based nondisclosure remedy under § 411.0725 — it preserved and operates alongside the new automatic provisions. Where automatic relief under § 411.0728 or § 411.0735 does not apply, the eligible person may still file a petition under § 411.0725 and seek a court order. The petition requires the filing fee, a verified petition, notice to the prosecuting attorney, and a court finding that sealing is in the best interest of justice — the procedural footprint that § 411.0728 and § 411.0735 eliminate.
- Effective date and transition
- SB 731 took effect on September 1, 2023, but the automatic-sealing mechanics under §§ 411.0728 and 411.0735 apply to qualifying dispositions occurring on or after the effective date and to qualifying pre-effective-date dispositions for which the waiting period had not yet run as of September 1, 2023. The retroactive reach is narrow — pre-2023 dispositions where the waiting period had already elapsed before the effective date are generally subject to the prior petition-based framework, not the new automatic framework.
Before SB 731, Texas nondisclosure operated entirely through the petition-based framework under Government Code § 411.0725. A person who completed deferred adjudication for a DWI under Penal Code § 49.04, or who served the sentence on a Class A or B misdemeanor conviction, could not obtain sealing as a matter of right — even when fully eligible under the statutory criteria. The petitioner had to retain counsel, pay the filing fee (typically $300+ in Collin, Dallas, Denton, and Tarrant district clerk offices), serve the prosecuting attorney, and persuade a court that sealing was in the best interest of justice. Many eligible Texans never filed the petition because they didn't know it was available, couldn't afford counsel, or didn't want to relitigate the underlying case in open court.
SB 731 changed that calculus for the two new statutory categories. For a first-time DWI deferred-adjudication completion under § 49.04 (other than the elevated 0.15 variant in § 49.04(d)) and for certain Class A and Class B misdemeanor convictions, the sealing is now automatic — DPS processes the nondisclosure at the end of the waiting period without a petition, filing fee, or court hearing. The legislative finding was that the petition barrier was suppressing the practical reach of the existing nondisclosure remedy and that the cost-benefit ratio favored automating the most common eligible categories.
Automatic vs. petition-based nondisclosure — the structural difference
Automatic nondisclosure under §§ 411.0728 and 411.0735 issues at DPS without a petition once the waiting period runs and eligibility is verified. Petition-based nondisclosure under § 411.0725 requires a filed motion, a filing fee, notice to the State, and a court finding that sealing is in the best interest of justice.
The structural distinction matters because the two mechanisms allocate the burden and the procedural risk differently. Under the automatic framework, DPS bears the responsibility for verifying eligibility and issuing the nondisclosure order — the eligible person is not required to file anything to trigger the process. If DPS fails to issue the order or makes an eligibility error, the affected person has a corrective remedy: file a petition under the petition-based framework to obtain the same relief through court order. Under the petition framework, the eligible person bears the burden of filing the petition, paying the fee, serving the State, and proving up eligibility at hearing. The court must affirmatively find that sealing is in the best interest of justice before granting.
The "best interest of justice" finding is significant for petition-based cases. Under § 411.0725(d), the trial court has discretion to deny a petition even where the statutory eligibility criteria are met — if the court concludes that public-interest factors weigh against sealing. In automatic cases under §§ 411.0728 and 411.0735, there is no equivalent discretion — the statutes operate by automatic operation when the statutory criteria are met. This is a meaningful procedural protection for applicants. A petitioner who relied on petition relief might have to address adverse facts (prior arrests not resulting in conviction, ongoing professional licensing matters, civil suits arising from the underlying incident); an automatic-sealing applicant doesn't face the same exposure.
The practical consequence for DFW counsel: the threshold question on any sealing matter is whether the case falls within § 411.0728 (first-time DWI deferred, no IID, no disqualifiers) or § 411.0735 (Class A or B misdemeanor conviction, no disqualifiers) — and if it does, whether the waiting period has run. If both conditions are met, no petition is required and no court appearance is necessary. If the case falls outside the automatic framework — most commonly because it involves a deferred adjudication on a non-DWI offense, a 0.15-elevated DWI, a felony deferred adjudication, or a disqualifier — then petition-based relief under § 411.0725 remains available, subject to court discretion.
Even within an automatic-eligible case, defense counsel can add value by verifying that DPS actually processed the sealing on schedule. DPS administrative errors do occur: a sealing not entered, a mistaken disqualifier flag, a delayed transmittal from the trial court. Periodic background-check audits — pulling the applicant's own DPS criminal-history record after the waiting period — are the practical way to verify the system worked. If DPS missed the sealing, the corrective petition under § 411.0725 is the standard remedy.
First-time DWI sealing under § 411.0728
Government Code § 411.0728 authorizes automatic nondisclosure of a first-time DWI deferred-adjudication completion under Penal Code § 49.04 — but excludes the § 49.04(d) BAC ≥ 0.15 variant and applies a 2-year (with IID) or 5-year (without IID) waiting period plus a long disqualifier list.
The first-time DWI sealing under § 411.0728 reaches the most common DWI disposition in Texas: a Penal Code § 49.04 driving while intoxicated charge that resolves on deferred adjudication community supervision. The DWI deferred-adjudication option itself was created by the Legislature in 2019 (HB 3582) — before that, deferred adjudication was statutorily unavailable for DWI offenses under prior versions of Code Crim. Proc. art. 42A.102. SB 731 closed the loop by making the deferred-adjudication completion record sealable, which was the obvious next step that the 2019 reform had left unfinished.
The eligibility criteria under § 411.0728(b) are narrow. The applicant must have (1) completed deferred adjudication community supervision for a first-time DWI under Penal Code § 49.04, (2) not been previously convicted of or placed on deferred adjudication for any offense other than a traffic offense punishable by fine only, (3) not been subsequently convicted of or placed on deferred adjudication for any offense other than a traffic offense punishable by fine only, (4) not been convicted of a § 49.04 DWI in the present case as a § 49.04(d) BAC-0.15-or-higher variant, and (5) not had the underlying offense involve an offense for which sex-offender registration is required, a family-violence affirmative finding under Code Crim. Proc. art. 42.013, or a deadly-weapon finding.
The exclusion of § 49.04(d) cases is significant. Texas DWI law treats an alcohol concentration of 0.15 or higher at the time of analysis as an enhanced Class A misdemeanor under § 49.04(d) — the elevated punishment range and ineligibility for § 411.0728 sealing both apply. A defendant whose blood-draw or breath-test result shows 0.15 or higher is therefore facing not only the immediate enhanced penalty but also the loss of the automatic-sealing option going forward. This is a major chip in DWI plea negotiations: counsel can sometimes negotiate a plea that drops the 0.15-elevated charge in favor of the base § 49.04 charge, preserving the client's future eligibility for automatic sealing.
The waiting period structure under § 411.0728(c) creates an incentive for ignition interlock device (IID) compliance. If the deferred adjudication community supervision included an IID requirement for at least 6 months under § 411.0728(c)(1), the waiting period is 2 years from successful completion. If no IID was required (or if the requirement was for less than 6 months), the waiting period is 5 years under § 411.0728(c)(2). For many DWI defendants, the 3-year acceleration of sealing is worth the IID compliance cost — counsel routinely structures the deferred-adjudication plea to include the 6-month IID condition specifically to lock in the 2-year waiting period.
Misdemeanor-conviction sealing under § 411.0735
Government Code § 411.0735 authorizes automatic nondisclosure of certain Class A and B misdemeanor convictions after sentence completion plus a 2-year (Class B) or 5-year (Class A) waiting period — the first Texas statute to seal actual misdemeanor convictions rather than dismissed deferred-adjudication cases.
Section 411.0735 represents a structural expansion of Texas nondisclosure law because it reaches convictions — not just dismissed-on-completion deferred-adjudication records. Before SB 731, a Texas Class A or Class B misdemeanor conviction stayed on the public criminal-history record permanently. Even fully served, low-level convictions — a Class B disorderly conduct, a Class A criminal mischief — followed Texans through employment screenings, housing applications, and licensing reviews for the rest of their lives. The 88th Legislature concluded that the collateral-consequence cost of those records outweighed the public-safety value of indefinite disclosure.
The eligibility criteria under § 411.0735(b) are extensive — and the exclusion list is longer than the inclusion list. Eligible categories include most non-violent Class A and Class B misdemeanors after sentence completion. Excluded categories include: any offense requiring sex-offender registration under Code Crim. Proc. ch. 62, any offense with an affirmative family-violence finding under Code Crim. Proc. art. 42.013, any offense involving an affirmative deadly-weapon finding, any 3g aggravated offense under art. 42A.054, any offense under Penal Code § 49.04 (the DWI carve-out — § 411.0728 handles deferred-DWI sealing, but DWI convictions remain unsealable under § 411.0735), and any offense involving certain weapons-related convictions under Penal Code Chapter 46.
The waiting periods under § 411.0735(c) are 2 years for a Class B misdemeanor and 5 years for a Class A misdemeanor, both measured from completion of sentence (including payment of all fines, fees, and restitution and discharge from any community supervision). The completion date is jurisdictional — a sealing processed before the waiting period runs from sentence completion is voidable, and DPS practice is to verify the completion date against trial-court records before issuing.
A practical complication: many misdemeanor sentences in Texas include deferred-payment plans for fines and fees. The "completion of sentence" benchmark under § 411.0735(c) requires that all financial obligations be satisfied, not merely served — so a defendant who is paying a monthly fee schedule may have a sentence-completion date well after the period of incarceration or community supervision. Counsel routinely advises clients in eligible categories to pay off financial obligations early when feasible specifically to accelerate the start of the sealing waiting period.
Statutory disqualifiers — what defeats automatic sealing
Both § 411.0728 and § 411.0735 contain comprehensive statutory disqualifier lists — sex offenses, family-violence findings, deadly-weapon findings, 3g aggravated offenses, certain weapons charges, and (for § 411.0728) the BAC 0.15+ DWI variant. A single disqualifier ends automatic eligibility.
The disqualifier framework under Government Code §§ 411.0728(b) and 411.0735(b) is binary and unforgiving: a single qualifying disqualifier — whether on the underlying offense or on any other offense in the applicant's history — ends automatic-sealing eligibility entirely. This is structurally different from the petition-based framework under § 411.0725, which gives the trial court discretion to weigh the disqualifying facts against mitigating circumstances and to seal anyway in appropriate cases. The automatic framework simply does not seal where a disqualifier exists.
Sex-offender-registration offenses under Code Crim. Proc. ch. 62 are the broadest disqualifier category. Any conviction or deferred adjudication for any offense requiring registration under ch. 62 disqualifies — even if the offense itself is a misdemeanor and even if the registration period has long since expired. The disqualifier is global: a defendant with a long-ago indecent-exposure registration cannot use § 411.0735 to seal a current unrelated theft conviction. The defense response in these cases is to evaluate eligibility for early termination of registration under Code Crim. Proc. art. 62.401-62.408 before pursuing the unrelated sealing.
Affirmative family-violence findings under Code Crim. Proc. art. 42.013 disqualify regardless of the underlying charge. An assault conviction with a family-violence finding bars § 411.0735 sealing entirely — even where the underlying assault was a Class A misdemeanor and the sentence has long been served. The 42.013 finding is permanent on the judgment unless modified through post-conviction procedure (a separate, narrow remedy). The strategic implication for plea negotiation: counsel routinely fights the family-violence affirmative finding even where the underlying charge plea is accepted, because the finding itself has permanent record-sealing implications beyond the immediate case.
Deadly-weapon findings under Code Crim. Proc. art. 42A.054(c) disqualify under both § 411.0728 (where the underlying DWI involved a deadly-weapon finding — typically the vehicle in a serious-injury or death case) and § 411.0735 (where the underlying misdemeanor involved a weapon). 3g aggravated offenses under art. 42A.054 are categorically disqualifying. Certain weapons-related offenses under Penal Code Chapter 46 are disqualifying. The bottom line: every adverse finding on a Texas judgment can have permanent record-sealing implications, and counsel must screen for these implications at the plea stage — not just at the sealing-eligibility analysis years later.
Sealed but not invisible — employer and licensing access under § 411.0765
Texas Government Code § 411.0765 preserves access to sealed nondisclosure records for criminal-justice agencies, the State Bar of Texas, the State Board for Educator Certification, the Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, school districts, and other regulated entities — even after the order issues.
A nondisclosure order under § 411.0725, § 411.0728, or § 411.0735 is not an expunction. The underlying records continue to exist; they are simply removed from public view and from ordinary background-check responses. Texas Government Code § 411.0765 enumerates the entities that retain access to sealed records under defined circumstances. The list is long and includes most regulated professions and government employers. The practical effect: a sealed Class A misdemeanor conviction is hidden from a private-sector employer running a routine background check, but remains visible to the State Board for Educator Certification when the same applicant applies for a teaching license.
The licensing-agency access exception drives much of the sealing decision-tree for clients in regulated professions. A nurse, a teacher, an attorney, a physician, a pharmacist, a CPA, a real-estate broker, or a stockbroker — each operates under a regulatory regime that retains access under § 411.0765 even after sealing. Counsel routinely advises these clients that sealing produces meaningful benefit (private-sector employment, housing, ordinary credit applications) but does not eliminate disclosure obligations in licensing-renewal or character-and-fitness contexts. Misrepresenting a sealed record to a licensing agency that retains access is itself a separate violation that can compound the underlying issue.
Criminal-justice agency access — police, prosecutors, courts, probation and parole departments — is preserved under § 411.0765(b). A sealed record remains visible in criminal-history queries used by law enforcement and in subsequent prosecutions for purposes of enhancement, impeachment, or background screening of the defendant. This is structurally similar to the access framework under federal database systems: sealing reduces collateral consequences but does not erase the law-enforcement-internal record.
For DFW practitioners, the § 411.0765 access framework is the most important counseling point to communicate to clients pursuing sealing. Many clients assume sealing produces a "clean record" in every context; the truth is that sealing produces a clean record in most contexts that matter to most people most of the time, but retains access for specific regulated entities under specific circumstances. A precise, written explanation of the § 411.0765 access list — tailored to the specific client's industry — is part of competent representation in any sealing matter.
Professional licensing impact — how SB 731 affects regulated professions
SB 731 nondisclosure does not eliminate licensing-disclosure obligations under § 411.0765 — but it does narrow the visibility of the record in many contexts. The licensing-impact analysis depends on the profession, the regulatory framework, and the timing of the sealing relative to the licensing event.
The Texas State Board for Educator Certification (TBN/SBEC) retains access to sealed records under § 411.0765 for purposes of certification, renewal, and discipline. A teacher with a sealed § 411.0735 Class A theft conviction must still disclose the conviction on SBEC applications when the form solicits criminal history regardless of sealing — and SBEC has independent authority to consider the conviction in its certification analysis. SBEC has discretion in how it weighs sealed records: the post-2023 practice trend has been to treat properly sealed records less severely than unsealed ones, but the conviction is not invisible to the agency.
The Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, and the State Bar of Texas all operate under similar frameworks — sealed records remain accessible, must generally still be disclosed on license applications when explicitly asked, but may be weighted differently from unsealed records depending on the regulatory standard. The agencies generally maintain their own disclosure-form-language pieces that interact with § 411.0765 — and counsel needs to read the specific form alongside the specific statute before advising the client on disclosure obligations.
School-district and public-junior-college employment is treated separately under § 411.0765. Public schools retain access to sealed records and have specific statutory authority to consider sealed records in hiring and retention decisions. This is the practical reason that an automatic-sealing analysis for a school employee or teacher often produces less benefit than the same analysis for an applicant in an unregulated industry. The client gets the sealing for private-sector and most-public-sector benefit, but the public-school employer continues to have access.
Federal employment and federal licensing operate under federal access frameworks that Texas Government Code § 411.0765 does not control. A sealed Texas record may still appear in federal background-check responses to the extent the federal agency has access to the underlying Texas criminal-history record. This is most prominent in federal-court attorney admission, federal-law-enforcement applications, security-clearance background investigations, and federal-loan or federal-housing applications. Counsel routinely advises clients that Texas sealing does not bind federal access — and that a separate federal disclosure analysis is required in any federally-regulated context.
Defense and eligibility strategy — what counsel actually does
The defense work on a sealing matter starts at the plea negotiation stage — fighting findings that disqualify, structuring deferred adjudication to lock in the 2-year IID-pathway waiting period, and screening at sealing-eligibility analysis for every disqualifier under §§ 411.0728(b) and 411.0735(b).
The earliest sealing-strategy decision happens at the plea-negotiation stage, before the underlying disposition is even entered. A defendant negotiating a DWI deferred adjudication that would qualify for § 411.0728 sealing should consciously structure the deferred adjudication to include the 6-month ignition interlock device requirement under § 411.0728(c)(1) — locking in the 2-year waiting period rather than the 5-year default. The IID requirement adds short-term inconvenience but cuts the sealing wait by 60% — a trade-off that most clients accept after the math is explained.
For misdemeanor convictions, the plea-negotiation focus shifts to fighting affirmative findings — family-violence findings under Code Crim. Proc. art. 42.013, deadly-weapon findings under art. 42A.054(c), and any other adverse findings that would disqualify under § 411.0735(b). Counsel routinely negotiates pleas where the underlying charge plea is accepted but the affirmative finding is contested or dismissed. The dollar-value of a successful finding-contest is enormous — measured in permanent record-clearing eligibility.
For § 411.0728 specifically, the BAC-0.15-or-higher avoidance is the central plea-stage chip. Where the State indicts a DWI as § 49.04(d) (elevated for BAC 0.15+), the defense routinely seeks a plea to the base § 49.04 offense. The 0.15+ finding is disqualifying under § 411.0728(b)(4) — and an unfavorable lab result alone can convert a sealable case into an unsealable one. Defense lab challenges and blood-draw chain-of-custody attacks are often the first line of attack on the 0.15+ elevation.
Once the disposition is entered, the sealing-eligibility analysis runs against the statutory disqualifier list. Counsel pulls the DPS criminal-history record, the underlying judgment, and the conditions of community supervision — and runs each item against §§ 411.0728(b) and 411.0735(b). A single disqualifier ends automatic eligibility, but petition-based relief under § 411.0725 remains available in many of those cases (with court discretion). The dual-track analysis — automatic for the easy cases, petition-based for the others — is the routine sealing workflow.
After the waiting period runs, counsel verifies that DPS actually processed the automatic sealing. Pulling the applicant's own DPS criminal-history record after the waiting period — and confirming the record reflects the sealing — is the practical audit step. Where DPS missed the sealing, the corrective petition under § 411.0725 is the standard remedy, and the petition courts in DFW counties are generally receptive to corrective petitions where the SB 731 eligibility is clear on the record.
