By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522

One of the more common questions asked by people fortunate enough to have a criminal record sealed by a Texas nondisclosure is “do I have to report an arrest on my employment application that is subject to a nondisclosure order?” At the risk of sounding like a lawyer, the answer to this question is “it depends.”

Article 411.081 of the government code, which defines the right to a nondisclosure, also explains under section (g-2) “A person whose criminal history record information has been sealed under this section is not required in any application for employment, information, or licensing to state that the person has been the subject of any criminal proceeding related to the information that is the subject of an order issued under this section.”

The answer to this question becomes a bit more difficult when dealing with any federal form. A nondisclosure is based on state law, and as such, the State of Texas cannot force the federal government to recognize a nondisclosure. A quick glance at the FBI website dealing with criminal records indicates that the federal government can recognize an expunction submitted through the proper protocol. Unfortunately, there is no reference to what they do with nondisclosures, but it is probably a safe bet to assume the records will show up in a federal criminal database. For the same reasons, it is probably best to err on the side of caution and report criminal history that is subject to a nondisclosure on federal forms–especially when making a false statement on a federal form can be construed as a criminal offense.

If you have denied the existence of a nondisclosed record and you come to learn that a potential employer has knowledge of your record anyway, there is a possibility someone has published your record unlawfully. Article 552.1425 of the Government Code mandates a civil penalty of $1000 per infraction for private entities that compile and disseminate criminal history record information in violation of a nondisclosure order. Similarly, Article 411.0851 gives an individual the right to sue for money damages any private entity that compiles and disseminates criminal history information in violation of a nondisclosure order. This statute also allows individuals who prevail in court to recover court costs and attorney fees.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.