A pre-trial diversion is a special program that allows someone to get a reset that is 1 year long. During that time the defendant completes a program that results in the charges being dismissed. The program typically entails random drug tests, classes, community service, reporting once a month, paying monthly fees and staying drug and alcohol free.
Today in Harris County I was attempting to apply for a pre-trial diversion for my client who was charged with a Class B Misdemeanor. In the past, the program has been different court to court and judge to judge. However today, one of the chief prosecutors gave me an “application” that has the requirements for the application packet that we submit on behalf of our clients who are seeking admission into the program. He informed me that all courts are now going to be using these requirements, and that it will be standardized among all misdemeanor courts.
The new requirements are that the packet must be submitted within 60 days of the first appearance of the Defense Counsel. And also that the packet must be submitted 7 days prior to the next setting. Other requirements are as follows:
- Defendant has never been previously arrested or a party to a criminal proceeding
- Defendant will reside in Harris County, TX for the entire one-year of the Pre-Trial Diversion
- Defendant is a US Citizen or lawful resident
- Defendant submits a Pre-Trial Diversion application containing:
- Letter stating why the defendant deserves a pre-trial diversion as opposed to deferred adjudication
- Written confession and apology
- Drug test results (if a drug case)
- School transcripts (if a student)
- Employment verification (pay stubs)
- At least two letters of recommendation from NON-FAMILY MEMBERS (stating awareness of the criminal charge and continued support)
- Evidence of treatment or community service as appropriate
Any exceptions to this are at the discretion of the chief prosecutor in the court that is handling the case.
This is basically the same that has been required in most courts, however, there have been a few courts that require different things. This could potentially be a good thing if all the courts, prosecutors and judges are on the same page.
There is no indication of what types of cases or age groups are eligible. This is more than likely still going to be decided on a court by court basis. If you have any specific questions regarding the program, or if you are eligible, please feel free to call our office at 713-222-2828 for a free consultation.
As an attorney who does a lot of work in this area, I have learned that many people are confused by the difference between Sealing a Record, a Petition for Non-Disclosure and Expunctions. People typically call and tell me they want to expunge their record. But there are different things that different people are eligible for.
Record sealing is for juvenile crimes. In the state of Texas you can seal most criminal records. This ensures that nothing is visible once the individual starts applying for jobs in the future. The big difference with juvenile crimes as opposed to adult crimes is that you may be eligible to seal your juvenile record even if you were convicted of the crime. In adult court, if you are convicted there is no possibility of getting the crimes off of your record.
The only time a juvenile record will not be sealed is if the juvenile:
- Received a determinate sentence
- Is currently registered as a sex offender
- Was certified and tried as an adult
Some lawyers do not tell their clients that they must seal their juvenile records, and some people assume the case is automatically sealed, but that is not the case.
Non-disclosures are for individuals who were placed on deferred adjudication and completed the deferred adjudication successfully. A non-disclosure will make your record hidden (non-disclosed) for the general public. However, governmental agencies and law enforcement will be able to see the record for the rest of your life. Non-disclosures are good protection from jobs/apartments/schools, etc that might hold a case against you even though it was dismissed.
There are some misdemeanor crimes that are eligible immediately for a non-disclosure, others require a 2 year waiting period. Felonies that are eligible have a 5 year waiting period from the day your deferred adjudication is terminated. For a personal consultation, please call our office.
You are NOT ELIGIBLE TO A NON-DISCLOSURE if you have been previously convicted of or placed on probation for any of the following:
- Sexual performance by a child
- Possession of production of child pornography
- Unlawful restraint, kidnapping, or aggravated kidnapping of anyone under the age of 17
- Attempt, conspiracy, or solicitation to commit any of these listed offenses
- Capital murder
- Indecency with a child
- Sexual assault
- Aggravated sexual assault
- Prohibited sexual conduct (incest)
- Aggravated kidnapping
- Compelling prostitution
- Injury to a child, elderly individual, or disabled individual
- Abandoning or endangering a child
- Violation of protective order or magistrate’s order
- Burglary of a habitation with the intent to commit any of the above offenses
- Any other offense involving family violence
You also will not be eligible to get a non-disclosure if you were convicted of another crime after you finished your deferred adjudication.
Even though your case might have been dismissed, no billed, or if you were found not guilty the arrest record is still visible to the general public.
To combat this, the State of Texas allows you to destroy (expunge) your criminal record. If you have an adult arrest record, you can have it expunged if:
- You went to trial on your case and you were found NOT GUILTY
- Your case was dismissed by the State (not through deferred adjudication)
- You complete deferred adjudication probation for a CLASS “C” misdemeanor
- Another person was accidently arrested under your name
- You are victorious in an appeal in the Texas Court of Criminal Appeals
- You receive a pardon from the President of the USA or the Governor of Texas
Expunctions are complete destructions of the criminal record, to where no one should know anything ever happened to you unless they have a personal recollection of the situation. If you are confused on whether or not you are eligible just call our office and we can walk you through the options.
If you read my older blog entry on Non-Disclosures, you know that a non-disclosure is a type of sealing of a record for an adult who successfully completed Deferred Adjudication. On a deferred adjudication the case is dismissed upon completion, there is never a conviction, and the arrest record can be partially non-disclosed to the general public (but not the government or law enforcement).
The reason you need a non-disclosure is because if someone does a background check on you they will be able to see that you pled guilty, were giving deferred adjudication, and your case was dismissed. The problem with that is that anyone who knows anything about the law is going to know that you pled guilty, and that the case was only dismissed because you did probation. This can be a problem when you are applying for jobs, schools, apartments, etc. So Non-Disclosures are very important for your record. The problem is the rules are confusing.
I get a lot of calls about Non-Disclosures and what the waiting periods are before you are eligible to proceed. On a felony case, if your case is eligible, you have to wait 5 years after you finish your deferred adjudication. You will be eligible after the 5 years as long as you have not been convicted of another crime before you file your petition for non-disclosure.
Misdemeanors are a little different. Some misdemeanors are eligible immediately, meaning you can try to get a non-disclosure the day after your deferred adjudication completion is official. But there are other cases that you are not eligible to file your petition until 2 years after the day that your case gets dismissed.
There are the cases the misdemeanor charges that carry a 2 year waiting period before you can get a non-disclosure:
- Abuse of Corpse
- Advertising for placement of child
- Aiding suicide
- Cruelty to Animals
- Deadly Conduct
- Destruction of Flag
- Discharge of Firearm
- Disorderly Conduct
- Disrupting meeting or procession
- Dog Fighting
- False Alarm or Report
- Harboring runaway child
- Hoax Bombs
- Indecent Exposure
- Interference with Emergency Telephone Call
- Leaving a Child in a Vehicle
- Making a Firearm Accessible to a Child
- Obstructing Highway or Other Passageway
- Possession, Manufacture, Transport, Repair, or Sale of Switchblade Knife or Knuckles
- Public Lewdness
- Silent or Abusive Calls to 911 Service
- Terroristic Threat
- Unlawful Carrying of a Weapon
- Unlawful Possession of Firearm
- Unlawful restraint
- Unlawful transfer of certain weapons
- Violation of protective order preventing offense caused by bias or prejudice
So if you were charged with any of these crimes you are not allowed to apply for the non-disclosure for 2 years. If your crime is not listed then it is immediately eligible (unless it’s one of the types of crimes that is never eligible – see my past blog on non-disclosures for a list of those).
If after reading this you are still confused, please feel free to give me a call and I will give you a more personal consultation.