Texas Non-Disclosure Eligibility: Pathways Under Chapter 411, Subchapter E-1

The five pathways

Texas non-disclosure is structured by disposition: how the case ended determines which statutory pathway applies. The five pathways are § 411.072 (DWI HB 3016), § 411.0725 (deferred adjudication), § 411.073 (straight probation), § 411.0735 (certain convictions), and automatic non-disclosure for specified cases.

Every pathway is subject to the same gating filter: § 411.074 lists offenses excluded from non-disclosure regardless of disposition. Those exclusions are categorical — capital and serious sex offenses, family violence, kidnapping, certain trafficking, and a defined list of others — and they trump every other eligibility analysis.

Deferred adjudication (§ 411.0725)

After successful completion of deferred adjudication under art. 42A.101, most defendants are eligible for non-disclosure under § 411.0725. Waiting periods range from immediate (most misdemeanors) to five years (felonies and certain misdemeanor categories).

Waiting periods under § 411.0725:

• Most misdemeanors: no waiting period — petition can be filed immediately after discharge.
• Misdemeanors under Penal Code chs. 20, 21, 22, 25, 42, 43, 46, or 71: 5-year waiting period.
• Felonies: 5-year waiting period.

Eligibility also requires that during the deferred-adjudication community supervision period, the defendant was not convicted of any offense other than a fine-only traffic offense, AND that during the waiting period after discharge, no conviction was entered for any offense other than a fine-only traffic offense. An intervening conviction can disqualify a defendant who otherwise would have qualified.

Straight probation (§ 411.073)

Successfully completed straight community supervision (not deferred adjudication) qualifies for non-disclosure on a narrower list of offenses than the deferred pathway. § 411.073 covers certain misdemeanors only — not felonies — and requires no prior conviction (other than fine-only offenses).

Five-year waiting period applies to most straight-probation non-disclosures. The petition can be filed earlier in narrow circumstances. The judge must find that issuing the order is in the best interest of justice — a discretion check applied on top of the statutory filter.

The narrower scope of § 411.073 reflects Texas’s general posture: deferred adjudication gets broader non-disclosure relief than straight probation because deferred avoids the conviction in the first place.

DWI HB 3016 (§ 411.072)

The HB 3016 pathway (effective September 1, 2017) is the only way to seal a DWI conviction in Texas. § 411.072 requires very specific facts: first-offense DWI, no prior conviction, no commercial driver license, no accident involving another person, BAC under 0.15, and successful completion of deferred adjudication OR successful ignition-interlock service through the term.

Waiting periods after discharge:

• 2 years if ignition interlock device was operated for at least 6 months during community supervision (or if the sentence completed with interlock for the full term).
• 5 years if no qualifying interlock use.

DWI non-disclosure is narrow by statutory design. The Texas Legislature created the path because there was no relief at all for DWI convictions previously, but limited eligibility to first-offense, low-BAC, no-accident, interlock-using defendants.

Conviction non-disclosure (§ 411.0735)

A new pathway under § 411.0735 permits non-disclosure of certain conviction records — distinct from deferred adjudication or straight probation. Eligibility is narrow: typically requires no other convictions, completion of any required sentence or release from supervision, and a five-year waiting period.

The conviction-non-disclosure path is a recent expansion of Texas non-disclosure law, reflecting the legislative trend toward broader record relief. The eligibility filter is strict — most defendants will find the deferred-adjudication or straight-probation pathway easier to satisfy.

The § 411.074 exclusion list

Every non-disclosure pathway is subject to § 411.074, which lists offenses categorically excluded from non-disclosure regardless of how the case was resolved. The exclusions are the most common reason a non-disclosure petition is denied.

Categorical exclusions include:

• Capital murder and murder.
• Aggravated kidnapping.
• Sexual assault and aggravated sexual assault.
• Indecency with a child.
• Continuous sexual abuse of a young child.
• Aggravated robbery.
• Trafficking of persons (most subsections).
• Compelling prostitution.
• Stalking (certain subsections).
• Any offense involving family violence (affirmative finding under art. 42.013).
• Any offense requiring sex-offender registration.
• Injury to a child, elderly, or disabled individual (certain subsections).

The family-violence exclusion is the most common disqualifier in misdemeanor non-disclosure petitions. Even a Class A assault that successfully completed deferred adjudication will be excluded if the court entered an affirmative finding of family violence under art. 42.013.

How eligibility is established

Non-disclosure eligibility is established by sworn petition filed in the court that placed the defendant on community supervision (or, in some cases, in the district court of the county where the case was prosecuted). The petitioner must attach proof of discharge, criminal-history record, and any other documentation showing each statutory condition is met.

Standard documentation:

• Discharge or termination order from the supervising court.
• Current Texas DPS criminal-history record (proves no intervening convictions).
• Probation file showing successful completion (if requested).
• For DWI HB 3016 petitions: ignition-interlock records, BAC documentation.

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