If you have a DWI on your record in Texas, you may have heard about the “Second Chance law” and wondered whether it applies to you. Can a DWI actually be cleared from your record in Texas? The answer depends on exactly what happened in your case but for many people, the answer is yes.
Brian Erskine is a board-certified criminal defense attorney in Austin who has helped hundreds of Travis County clients understand their record-clearing options after a DWI charge. This post explains exactly what the Texas Second Chance law does, who qualifies, what the difference is between expunction and non-disclosure, and what steps to take to pursue a clean record.
Why a DWI on Your Record Is So Damaging
Before getting into the law, it is worth understanding what is actually at stake. A DWI on your permanent record in Texas affects nearly every area of your life:
- Employment. Employers in Texas routinely run background checks. A DWI conviction especially a felony DWI can disqualify you from jobs in healthcare, education, transportation, finance, law enforcement, and many other fields. Even jobs that do not legally require a background check often conduct one informally.
- Professional licenses. The Texas Medical Board, Texas Board of Nursing, Texas State Bar, Texas Real Estate Commission, and many other licensing bodies require disclosure of criminal convictions. A DWI can delay, complicate, or prevent licensure.
- Housing. Many landlords deny rental applications from people with criminal convictions. Some apartment complexes use screening services that flag any criminal record, regardless of how old it is.
- Auto insurance. A DWI conviction in Texas results in significantly higher auto insurance premiums often for 3 to 5 years or longer. The annual surcharge to keep your Texas driver’s license after a DWI adds $1,000 to $2,000 per year for three years on top of that.
- Personal reputation. Criminal records in Texas are public. Anyone can search your name in online court databases and find a DWI conviction employers, dates, neighbors, colleagues.
Clearing a DWI from your record even partially removes or limits all of these consequences.
What Is the Texas Second Chance Law?
The Texas Second Chance law refers to Senate Bill 1902, signed into law in 2017 and updated since. Before this law, people who received deferred adjudication probation for a DWI in Texas had no path to sealing their record. The Second Chance law changed that by creating a new pathway for certain DWI offenders to obtain an order of non-disclosure a court order that seals the DWI record from public view.
This was a significant change. Prior to SB 1902, Texas was one of the strictest states in the country when it came to DWI records there was essentially no way to hide a DWI from background checks short of a full expunction, which required the case to be dismissed or result in an acquittal.
Expunction vs Non-Disclosure: What Is the Difference?
These two terms are often confused. They are very different in what they accomplish.
Expunction Complete Erasure
An expunction under Texas Code of Criminal Procedure Chapter 55 means your arrest and case records are completely destroyed. The court, law enforcement agencies, and prosecutors are required to delete all records related to the arrest. After a successful expunction:
- You can legally deny that the arrest ever happened
- Employers, landlords, and the general public cannot find the record
- The record is removed from state and federal databases
For DWI cases, expunction is available only when:
- The charge was dismissed
- You were acquitted at trial
- You completed a pretrial diversion program and the charge was dismissed
- The grand jury issued a no-bill (declined to indict)
A DWI conviction even a first offense cannot be expunged in Texas. This is why fighting the charge from the beginning, rather than accepting a conviction, is so important.
Order of Non-Disclosure Sealing the Record
An order of non-disclosure does not destroy the records it seals them from public access. After a non-disclosure order:
- The general public, most employers, and most landlords cannot see the record
- Background check companies cannot report the record
- You are not required to disclose the arrest or charge to most private employers
- However, certain government agencies, licensing boards, and law enforcement can still access the sealed record
Non-disclosure is less complete than expunction but for most practical purposes, it achieves the same result. The DWI disappears from standard background checks, employment applications, and public court databases.
Who Qualifies for Non-Disclosure Under the Texas Second Chance Law?
This is the most important section because not everyone with a DWI qualifies. The requirements are specific.
You Must Have Received Deferred Adjudication
The Texas Second Chance law applies only to people who received deferred adjudication community supervision for a first-offense DWI not to people who were convicted. Deferred adjudication means you pleaded guilty or no contest, the judge deferred a finding of guilt, and you were placed on probation.
If you were convicted of DWI even a first offense the Second Chance law does not apply to you. This is another reason why having the right attorney at the time of the original charge matters enormously.
It Must Have Been a First Offense
The Second Chance law applies only to first-time DWI offenders. If you had a prior DWI conviction or deferred adjudication for DWI before the current offense, you do not qualify.
Your BAC Must Have Been Below 0.15%
If your blood or breath alcohol concentration at the time of arrest was 0.15% or higher which elevates a first DWI to a Class A misdemeanor in Texas you do not qualify for non-disclosure under the Second Chance law.
No Accident Involving Another Person
If your DWI involved an accident that resulted in bodily injury to another person, you are not eligible.
You Must Have Completed All Probation Requirements
You must have successfully completed your deferred adjudication probation all community service hours, all fines and fees, all required classes, and any other conditions imposed by the court. An incomplete probation disqualifies you.
A Waiting Period Must Have Passed
Even after completing all probation requirements, you must wait before filing for non-disclosure:
- If an ignition interlock device was required as a condition of your deferred adjudication: you must wait 2 years after completing probation before filing
- If no ignition interlock was required: you must wait 2 years after completing probation before filing
In either case, the clock starts from the date your probation was officially discharged not from the date of the arrest or the original plea.
You Must Not Have Any Disqualifying Criminal History
You are not eligible for non-disclosure if you have been convicted of or placed on deferred adjudication for certain other offenses including any offense requiring sex offender registration, murder, human trafficking, kidnapping, or family violence offenses.
Step-by-Step: How to Apply for Non-Disclosure Under the Second Chance Law
If you meet all the requirements above, here is how the process works:
- Step 1 – Confirm your eligibility. Review the details of your original case the charge, the disposition, whether deferred adjudication was granted, whether an ignition interlock was required, and when your probation was discharged. An attorney can pull these records quickly and confirm your eligibility.
- Step 2 – Gather your records. You will need certified copies of your original charging documents, your deferred adjudication order, your probation discharge paperwork, and documentation that all conditions were completed.
- Step 3 – File a petition for non-disclosure. Your attorney files a petition in the court that handled your original DWI case. The petition must include specific information about the offense, the disposition, and why you meet the statutory requirements.
- Step 4 – The court may hold a hearing. The judge has discretion to grant or deny the non-disclosure petition. The judge considers whether granting the order is in the best interest of justice. A prosecutor may oppose the petition. Having an experienced attorney present the petition professionally and persuasively significantly improves your chances.
- Step 5 – The order is granted and transmitted. If the judge grants the order, it is transmitted to the Texas Department of Public Safety and all relevant criminal justice agencies, which are required to seal the records. The process typically takes 30 to 90 days from the date of the order.
What If My DWI Was Dismissed? Can I Get an Expunction?
Yes if your DWI was dismissed, you were acquitted, or you completed a pretrial diversion program that resulted in dismissal, you are eligible for a full expunction rather than non-disclosure. An expunction is the better outcome it completely destroys the records rather than sealing them.
The expunction process is similar to non-disclosure: you file a petition in the court that handled your case, the court holds a hearing, and if granted, all agencies are ordered to destroy their records.
There is a waiting period before you can file for expunction in some cases for a Class B misdemeanor DWI that was dismissed, the waiting period is typically 2 years from the date of arrest unless the charge was dismissed earlier. An attorney can confirm the exact waiting period in your situation.
What About a DWI Conviction Is There Any Option?
If you were convicted of DWI in Texas meaning the judge entered a formal finding of guilt, either after a trial or after a guilty or no contest plea the Second Chance law does not apply. A DWI conviction in Texas cannot be expunged or sealed under current law.
This is a hard reality but it is also exactly why Brian Erskine emphasizes fighting every DWI charge from the beginning. The difference between a DWI conviction and a deferred adjudication plea or a dismissal can mean the difference between a permanent public record and a sealed one. That decision gets made at the time of the original case, not years later.
If you are currently facing a DWI charge, protecting your ability to eventually seal or expunge the record is one more reason to have an experienced attorney working your case from day one.
Frequently Asked Questions
Can I expunge a DWI conviction in Texas?
No. A DWI conviction cannot be expunged under current Texas law. Expunction is available only when the case is dismissed, results in acquittal, or is resolved through pretrial diversion. If you have a DWI conviction, a non-disclosure order under the Second Chance law may be available if you received deferred adjudication and meet all other requirements.
How long does it take to seal a DWI under the Second Chance law?
From filing the petition to final sealing of records, the process typically takes 3 to 6 months. This includes time for the court to schedule a hearing, issue the order, and for all agencies to process the non-disclosure.
Will a sealed DWI still show up on a background check?
After a non-disclosure order is granted, the DWI will not appear on standard background checks run by employers, landlords, or the general public. However, certain government agencies, professional licensing boards, and law enforcement agencies can still access sealed records.
Does a non-disclosure order restore my gun rights?
No. A non-disclosure order seals the record but does not restore rights lost due to a conviction or deferred adjudication. If gun rights are a concern, speak with an attorney about the specific circumstances of your case.
Do I need an attorney to file for non-disclosure in Texas?
Technically no but practically yes. The petition must be filed correctly, evidence of eligibility must be presented, and the prosecutor may oppose the petition. An attorney dramatically increases the likelihood of the petition being granted and handles all the paperwork, court filings, and hearing preparation.
Find Out If You Qualify Free Consultation With Austin DWI Attorney Brian Erskine
If you have a DWI on your record in Texas and you are wondering whether the Second Chance law can help you, the best first step is a free consultation with a board-certified DWI attorney who knows the process inside and out.
Brian Erskine has helped Travis County clients clear their records and move forward with their lives. He will review your case, confirm your eligibility, and walk you through exactly what is possible.
Call 512-359-3030 today or visit traviscountycriminalattorney.com/dwi-attorney-austin/ to schedule your free consultation.