There are there basic types of misdemeanors, class A, class B, and class C. Class A misdemeanors are punishable by up to a $4,000 fine and confinement of 1 year in a county jail. A class B misdemeanor is punishable by up to a $2,000 fine and confinement in a county jail for up to 180 days. A class C misdemeanor is a fine only offense; however a person can be arrested for a class C misdemeanor.
Common Class A misdemeanors include assault family violence, assault, DWI 2nd, DWI with BAC > .15, possession of marijuana 4oz – 2lbs, possession of a dangerous drug, and theft of $750-$2500. Convictions to class A misdemeanors can have long lasting effects on employability. Theft and Assault family violence convictions are among the most damaging. Assault family violence convictions may bar a person from legally owning a firearm which may cause members of law enforcement or members of the military to lose their jobs. However, an assault family violence convictions are often difficult because the alleged victim often maintains their relationship with the accused. Further, these cases often arise in the context of mutual combat and in situations where it’s unclear who started the fight or how it started.
Class B misdemeanors include possession of marijuana, criminal trespass, theft of more than $100, but less than $750, prostitution, driving with a suspended license, and driving with license invalid 3rd. Class B cases are remarkably challenging at trial considering the minor nature of the offense. This is because they don’t involve the types of offenses were recantations are common, and often there is not a viable third party scape goat the defense attorney can blame the offense on. Prostitution and theft convictions are particularly damaging to employability and DWI cases are expensive. The good news is that B misdemeanor DWIs are among the hardest cases for the State to prove. Convictions for DWIs are historically low where the prosecution must rely solely on officer testimony and standard field sobriety testing (SFSTs), Further, illegal searches and seizures in class B misdemeanor marijuana cases are about as common as they are in more serious cases. Finally, many counties offer pretrial diversion programs which are well suited for a class B defendant who on the one hand is accused of a case that is easy to prove, and on the other has little or no criminal history.
Pretrial diversion is an informal program that varies from county to county whereby through agreement a case is taken off the court’s docket and a defendant is placed on a type of community supervision through the county’s probation department or district attorney’s office. The main advantage of pretrial diversion is that a defendant who successfully completes pretrial diversion has a right to have their case expunged.
Expunctions effectively seal an arrest record. Expunctions are more powerful than non-disclosure orders because records of cases are no longer kept after expunction and law enforcement is also required to destroy their records. Expunctions are available as a matter of law following a not guilty verdict or successful completion of pretrial diversion. Expunctions are also available for misdemeanors where a person was never convicted or placed on community supervision under Texas Penal Code section 42.12, where a case was ultimately dismissed, and where the statute of limitations has run. The same rules apply for a felonies except that the dismissal must be for a lack of probable cause.
More commonly a defendant is eligible for a non-disclosure order whereby the State may be fined if they release a defendant’s arrest record. The orders are far more effective than you might think. As a practical matter a non-disclosure order also seals a person’s criminal record. After a non-disclosure order the clerk’s office, police department, and Texas Department of Public Safety, will not release any arrest record to non-governmental agencies. Like expunctions, a non-disclosure prevents a third party from finding out about an arrest and occurs in situations where there was never a conviction to begin with. Non-disclosure orders are not available in all cases. For example they are not available for sex offenders, DWIs, and injury to a child, or injury to the elderly cases. Many non-disclosure orders have a waiting period where the wait time begins upon the successful completion of deferred adjudication community supervision. The waiting period for felony cases is five years, two years for misdemeanor thefts, and there is no waiting period for other qualifying misdemeanors.
Finally, unlike expunctions, non-disclosure orders are discretionary. Judges don’t have to grant them even if a person is eligible and contested hearings often re-litigate the underlying facts of the offense. Hiring a knowledgeable attorney can help you obtain a non-disclosure order on your timeline. Obtaining a non-disclosure order may be essential to obtaining a better job.