Texas BON and Declatory Order

[Razorback5]

My situation is driving me crazy! I had some things come up on my FBI background check but they had been expunged. So, according to the Declaratory From they need not be disclosed. So, when I got the letter from the BON stating that I had a hit on my background check, I immediately sent them certified copies of the expunged orders signed by a judge. I didn't send in a declaratory order with it or a statement concerning those issues because as they say "they need not be disclosed."

Well, two weeks later I got a letter from the BON saying I needed to fill out a declaratory order to start a file on me, so I called them to ask some questions. Mainly why do I need to fill out the DO? She stated because I had a positive hit on my background check. I informed her that I understood that but that I had sent in the court orders expunging the records. Now, here's the crazy part. I told them I would fill out a DO but where it ask about criminal offenses I asked them if I could check NO because my records have been expunged. They told me they couldn't answer that question. I then told them under Texas law and in their own statement that "expunged/sealed records need not be disclosed" and that I had the right to answer NO, they again stated that was up to me and that they couldn't help me at all on making that decision because of possible legal ramifications. They also stated that if I answered NO that could delay my approval and if I answered yes it could also delay it. I mean they are literally no help at all and seems like they are trying to trap you. So, I filled out the DO and checked NO to the criminal charges question. Now, I'm wondering if they will try to hold that against me and violate a judges order and Texas law. Again, if they do this they will be violating Texas law. Below is the Texas law:

Art. 55.04. VIOLATION OF EXPUNCTION ORDER.

Sec. 1. A person who acquires knowledge of an arrest while an officer

or employee of the state or of any agency or other entity of the state

or any political subdivision of the state and who knows of an

order expunging the records and files relating to that arrest

commits an offense if he knowingly releases, disseminates,

or otherwise uses the records or files.

It seems to me they are already violating Texas Law by having me fill out a DO knowing that my records have been expunged and therefore can't use that against me. By talking to them I have become even more confused on my rights concerning the BON. I mean what good is having your records expunged if they are going and turn around and violate the judges order and use that against you? I was told in the first letter that it would take 30 days to process so I made sure to get the expunged orders sent to them on time but now with this second letter that I received 15 days later requesting a DO it also states that it will take 30 days to reach a decision. So, I'm running out of time as I have to have this resolved by the end of this month, if it's not resolved I will have to leave school because I can't attend clinical rotations. I have this feeling that in the end they will screw me over because they don't like it when their power is taken away from them. I hope I'm wrong but they don't seem to be helpful at all and have zero sympathy for anyone's situation. I have complied with everything they have asked and not to mention these charges are from 16 years ago and don't involve crimes serious in nature. Anyway, I will post when this reaches a conclusion and hope this helps people who think that having an expunged record will help them with the BON, because it doesn't.

[txagg]

Sorry that you are going through all this mla30? May I ask what kind of misdemeanor did you have? Also maybe look into getting it expunged. That could help out? Best of luck

[nvnikkid]

Im glad things are moving along for you, even though, yes, its a process. I went to Austin today, met with BON and was told I have to do a forensic eval w/polygraph. I don't even know what that is or how it works, but I drove my behind all the way to Austin from Katy, had to rent a hotel, find babysitters, etc, just to be told that. Im so disappointed, but I guess ill just keep jumping the hurdles the BON is laying down in front of me.

I'm sorry things didn't go as planned. But when dealing with licensing they can see things that have been sealed. For private companies you can say no but licensing and government it will always be a yes. But keep the faith you are closer than where you were before.

[mla30]

My misdemeanor was a class B for theft. I did do all the legal stuff to have it sealed up, but I chose to disclose it myself instead of it coming out some other time. I did evaluation and polygraph and now I am back to waiting around for weeks to hear from the board. I don't know if they will clear me or give me obstacles that cost lots of money to do.

[Oca2016]

My misdemeanor was a class B for theft. I did do all the legal stuff to have it sealed up, but I chose to disclose it myself instead of it coming out some other time. I did evaluation and polygraph and now I am back to waiting around for weeks to hear from the board. I don't know if they will clear me or give me obstacles that cost lots of money to do.

Hi mla30! I just read this thread and I feel like I am in the same position you are in. I was charged in 2009 for Class B Misdemeanor Theft and had it Expunged in 2011 and have the proper documentation proving. I was wondering why your case was sent to Enforcement Department and why you had to do a Poly..what does the Poly even entail? I feel so stressed because I have not yet applied to nursing school and will be applying next month but I guess like you I don't want any surprises and am wondering if I should go ahead and submit a Declaratory Order even before I apply to nursing school? Even though my record is expunged should I still fill out a DO? Any help would be greatly appreciated!

[mla30]

yes, i mean a letter of non disclosure. All my records come back clear, fingerprints also, all clear.

[mla30]

my stipulations are exactly the same. Good luck to us both. My process took a little over a year, you did good with just a few months.

[mla30]

Hello Oca2016, I am just now seeing this thread, so sorry for the late response. I would advise you to read the BON's website about what you do and dont have to disclose. After I did my DO, i read it more carefully and it states that a person does not have to disclose a sealed case, but it urges you to make sure your stuff is in fact, sealed up. If i would have read that better the first time, I would not have put my info out there the way I did because it caused me a lot of stress, heartache and money. So just run your own back ground check and see exactly what does or does not show up and make a decision from that. Hope this helps.

[Lrtx82]

Just thought I'd put this up here. It seems a lot of people use the word non disclosure(sealing) and expungement interchangeably. They are completely different, at least here in Texas. I realize this post was a while back, but thought it would help someone else having questions about Texas law.

I found this on the Office of Dean of University of Texas at Austin's website.

Expunctions and Orders of Non-Disclosure

Is there a way to prevent my future employers from learning about a previous arrest?

The only way to remove an arrest from your record is through an expunction. Expunctions, however, are only available to arrested individuals under limited circumstances. First, if an individual is tried and acquitted for an offense, or if she is tried, convicted, but subsequently pardoned for an offense, then she may expunge the record of her arrest for that offense so long as she has not also been convicted for another crime stemming from the same criminal episode.

An individual who has not gone to trial and been acquitted or pardoned for an offense, however, may still expunge the record of her arrest, if and only if she can meet the following set of requirements:

The individual must not have been convicted for the offense for which s/he was arrested, and

The individual did not intentionally or knowingly flee after being released on bail, and

The arrest did not arise out of a warrant issued for a violation of community supervision,

A court has not ordered community supervision for the crime, and either

The requisite time period has passed, or

The prosecutor certifies the arrest records are no longer needed, or

The charge was dismissed because the individual completed a pretrial intervention program, or

The charge was void or based on a mistake or false information, or

The prosecution of the offense is no longer possible because the statute of limitations has expired

If all of these circumstances are true, then an individual who has not been indicted or has been falsely indicted may also expunge the record of her arrest despite her not having been acquitted or pardoned for the offense.

What if I am not eligible for an Expunction?

Another option is to obtain an "Order of Non-disclosure." Unlike Expunctions, an Order of Non-disclosure is available to those who successfully complete deferred adjudication for a Class B or above criminal offense. Once granted, the Order prevents law enforcement agencies, jails, courts and other public information agencies from releasing arrest information to private third parties. However, the Order does not prevent law enforcement agencies from sharing the information with one another or with certain authorized agencies, such as school districts. The arrest information may also be revealed in the case of subsequent criminal prosecutions.

You will be eligible for this Order immediately upon completion of your deferred adjudication requirements if the crime did not involve, sex, guns or violence. If it does involve these areas, then you will have to wait five years before applying for the order. In the case of felony arrests, the waiting period is ten years. Orders of Non-disclosure are not available to those receiving deferred adjudication for kidnapping offenses, sex crimes, abandonment or endangerment of a child, injury to a child, the elderly or disabled, violation of a protective order, stalking or crimes involving family violence.

[LaraH]

I am currently going through this for felonies from 1992 and 1993, I have my forensic eval. w/polygraph on Tuesday 9/11 at 11 am. I am already in nursing school and clinicals begin mid-October. It's costing me $3000 Tuesday and I pray I am not spending the money only to be told no. Can you share your experience and outcome with me? Thank you, and I pray it worked out for you!