Expungement Delimma

[srothstein]

Kungfu,

Let me join in on the IANAL crowd, along with the strong advice to get a lawyer. As I read this law and the federal law, your rights were restored by a court of competent jurisdiction, therefore the feds would let you have the firearm.

Other than a good lawyer, you might call the ATF and ask them how they would interpret this section. That would let you know fairly quickly what the feds think, but I generally do not trust their informal answers. To them, if it is not in writing, it did not happen and if it is in writing it still is not necessarily binding.

[jwp]

Any RKBA-friendly lawyer recommendations in the San Antonio area?

If you don't get any names here, try the leverguns forum. There's a regular on it who is a San Antonio area lawyer. I believe, though I am not absolutely certain, that he's the person who goes by the handle "ScottT". I've forgotten his real name. You should be able to get a response by going to http://leverguns.sixgunner.com/forum.asp?FORUM_ID=2, register, and submit an off-topic post - i.e., one prefaced with "(OT)" - asking the same question.

[frankie_the_yankee]

I don't see how Texas procedures & procedures on expunctions have any relevance whatsoever to an Arkansas expunction of an Arkansas conviction before an Arkansas court for an Arkansas law violation.

IANAL, but I tend to see it this way.

1) Has Kungfu been convicted of a felony in or by the state of Texas?

No.

2) Has Kungfu been convicted of a felony in or by the United States?

No.

3) Has Kungfu been convicted of a felony in or by any other state?

Since his Arkansas conviction has been expunged by the state of Arkansas, if you ask that question of Arkansas or any other state, and that state does a criminal records check, the answer you will get will be, "No."

I believe that Kungfu made a mistake when he stated that he had an expunged conviction on his TX CHL application. I don't have an application in front of me, but unless the question is worded so that it specifically says to include expunged convictions and/or details of the expungement order, he should have simply answered "No" to the question. Now that DPS knows about it, they are jerking him around.

I think a lawyer will advise him that if he encounters a "have you ever been convicted of a felony" question ANYWHERE where it doesn't specifically say that expunged convictions are included, he should answer "No", and that in doing so he will be telling the "legal truth".

A good lawyer can probably pound his application through DPS if he wants a TX CHL. (That's what I would do.) But if he is satisfied with one from FL or some other state, that should be a piece of cake.

It might even be a good move to get one from another state first, then have the lawyer pound it to DPS. That would almost render their position moot.

[txinvestigator]

You guys realize that state law gave him two appeals, one of which a Justice Court Judge agreed with DPS' ruling, the other appeal he did not make in the time allocated by law.

He ain't getting a CHL in Texas, regardless of how much money he spends on an attorney.

[frankie_the_yankee]

You guys realize that state law gave him two appeals, one of which a Justice Court Judge agreed with DPS' ruling, the other appeal he did not make in the time allocated by law.

He ain't getting a CHL in Texas, regardless of how much money he spends on an attorney.

Tell that to OJ Simpson.

[txinvestigator]

You guys realize that state law gave him two appeals, one of which a Justice Court Judge agreed with DPS' ruling, the other appeal he did not make in the time allocated by law.

He ain't getting a CHL in Texas, regardless of how much money he spends on an attorney.

Tell that to OJ Simpson.

OJ was aquitted by a jury of a criminal violation based on reasonable doubt. How is THIS the same?

[frankie_the_yankee]

You guys realize that state law gave him two appeals, one of which a Justice Court Judge agreed with DPS' ruling, the other appeal he did not make in the time allocated by law.

He ain't getting a CHL in Texas, regardless of how much money he spends on an attorney.

Tell that to OJ Simpson.

OJ was aquitted by a jury of a criminal violation based on reasonable doubt. How is THIS the same?

There was no reasonable doubt as to OJ's guilt. He was aquitted mainly because Mark Fuhrman had used some bad language at some time in the past and lied about it on the witness stand. Also, the fact that OJ's attorneys were even allowed to pursue such an irrelevant line of questioning speaks to the massive incompetence of the prosecution team and Judge Ito as well.

OJ's aquittal was one of the most notorious cases of jury nullification in modern history.

As to how Kungfu's case is related, it's simple.

1) At the time OJ was aquitted he was the guiltiest man in America.

2) He had a ton of money and he spent it on lawyers.

3) If not for #2 above, he would probably have gotten the death penalty.

4) You spend enough money on good lawyers, and you can move mountains.

Now in Kungfu's case, we have a guy who actually does qualify for a TX CHL, but who spoiled things for himself by giving the wrong answer when he filled out his application. He gave that wrong answer because he did not avail himself of proper legal advice first.

If he had consulted a lawyer before filling out his TX CHL application, he would have been told to answer "no" to the question of had he ever been convicted of a felony (or whatever it is they ask exactly).

It's not up to Texas as to whether they recognize an Arkansas expungement. The crime wasn't committed in TX. Kungfu has never been convicted of anything in TX or by TX. And if TX did a criminal background check on Kungfu in Arkansas or in any other state, it would come back clean.

Because as far as Arkansas is concerned, Kungfu's slate has been wiped clean.

Then after messing up his application, he foolishly tried to work things out himself, again without the benefit of legal advice or representation. He was expecting DPS and the JP to be reasonable and interpret the law correctly. They did not.

It's clear that DPS and the JP were wrong in the way they decided this case.

Now it says here, you throw enough legal talent (and money of course) at that situation and it WILL get corrected.

Maybe Kungfu's legal team files suit in state or federal court claiming his civil rights were violated. After all, if you're a law-abiding citizen who meets the requirements, you have a "right" to a CHL in TX, right?

Kungfu may not have those resources available to him, in which case he is out of luck. But he can still pursue getting an out of state CHL, (as you suggested early on) provided that he gets good legal advice in helping him make the attempt.

Me? I'm stubborn. If I think I'm getting pushed around by ignorant or hostile public officials, I push back.

Yeah, I know. I'm not logical. I don't understand reality. I don't make any sense. Etc.

[txinvestigator]

You guys realize that state law gave him two appeals, one of which a Justice Court Judge agreed with DPS' ruling, the other appeal he did not make in the time allocated by law.

He ain't getting a CHL in Texas, regardless of how much money he spends on an attorney.

Tell that to OJ Simpson.

OJ was aquitted by a jury of a criminal violation based on reasonable doubt. How is THIS the same?

There was no reasonable doubt as to OJ's guilt. He was aquitted mainly because Mark Fuhrman had used some bad language at some time in the past and lied about it on the witness stand. Also, the fact that OJ's attorneys were even allowed to pursue such an irrelevant line of questioning speaks to the massive incompetence of the prosecution team and Judge Ito as well.

OJ's aquittal was one of the most notorious cases of jury nullification in modern history.

Your opinion, not fact.

As to how Kungfu's case is related, it's simple.

1) At the time OJ was aquitted he was the guiltiest man in America.

so what? lots of "guilty" people get aquitted.

2) He had a ton of money and he spent it on lawyers.

Again, so what? You are talking about a CRIMINAL case where a jury of peers decides based on reasonable doubt, stacked on the side of the defendant.

3) If not for #2 above, he would probably have gotten the death penalty.

The relevance to a non-criminal administrative case is......?

4) You spend enough money on good lawyers, and you can move mountains.

and if the other side spends enough money on good lawyers.......?

Now in Kungfu's case, we have a guy who actually does qualify for a TX CHL,

I disagree. he does NOT qualify. he was convicted of Possession with intent to distribute.

but who spoiled things for himself by giving the wrong answer when he filled out his application. He gave that wrong answer because he did not avail himself of proper legal advice first.

No, he was honest, as he should have been. If a person is convicted of a crime that is called a misdemeanor in their state, but Texas calls it a Felony, it is a felony for CHL purposes. Accordingly, if a person receives a legal benefit called Expunction in their state, but Texas has a DIFFERENT definition, the Texas definition stands. Just like DPS and a court decided in this case.

It's clear that DPS and the JP were wrong in the way they decided this case.

It is clear that DPS and the judge were RIGHT.

[frankie_the_yankee]

Yah. OK TXI. So I say OJ was aquitted due to jury nullification and you say that is my opinion - not fact. Then you go on to say that OJ was aquitted based on reasonable doubt. And this is somehow not just an (specifically, your) opinion?

This isn't the first time I have seen a tendency in your posts for you to simply assume that anything you say is a fact.

Besides the fact that in many cases where someone says to another, "That's just your opinion.", it is because they do not have a good reply to the logic or facts that the person cited to substantiate their opinion. So the only thing they can do is to try to dismiss it as "just" an opinion.

I've been observing people do this since you were in diapers. Don't think you invented the technique.

So let's get it on the table. I really don't give a red lollipop what your opinion is on any subject. If you offer one, and you can back it up with facts and/or logic, it will get due consideration. If you simply assert an opinion, it has little value on its own.

I stated that Kungfu qualifies for a CHL in TX, based on the fact that he has no criminal record that is required to be legally disclosed. I suspect that if you researched Arkansas expungement law, you would find that to be correct. I also think that if someone ran a criminal background check on Kungfu in Arkansas, assuming his posts to this board have been factual, it would come out clean.

You disagree with this, saying, "I disagree. he does NOT qualify. he was convicted of Possession with intent to distribute. "

That sounds like an opinion to me. And the reason you cite, his conviction, conveniently ignores the fact that that conviction was expunged by a court of competent jurisdiction. So I don't put much stock in that opinion.

Then, you go on to offer us more of your opinions.

"If a person is convicted of a crime that is called a misdemeanor in their state, but Texas calls it a Felony, it is a felony for CHL purposes. "

Note that I happen to agree with this opinion so long as the conviction remains on the person's record.

Still more opinions: "Accordingly, if a person receives a legal benefit called Expunction in their state, but Texas has a DIFFERENT definition, the Texas definition stands. Just like DPS and a court decided in this case."

DPS and a JP decided this in a case where the guy had no representation. You have no idea whether it would have turned out differently had Kungfu's lawyer been able to cite case law on the status of offenses expunged in other states, or even if such case law exists.

So you're talking through your hat.

Now then, if you happen to be a sitting justice on the Texas Supreme Court, just say so and I will take care to give your opinions more weight in the future.

[srothstein]

You guys realize that state law gave him two appeals, one of which a Justice Court Judge agreed with DPS' ruling, the other appeal he did not make in the time allocated by law.

He ain't getting a CHL in Texas, regardless of how much money he spends on an attorney.

I disagree. I think he may be able to get a Texas CHL, especially with a good attorney. I will agree that his time limit for the appeal is gone and he cannot now appeal the denial.

But, Texas has a two year statute of limitations on general torts. Since the Government Code specifically says the license is a benefit, he MIGHT be able to sue the state under the general torts act.

A much better way would be to just apply again and go through the whole procedure over again, this time with the lawyer at the ready. Interestingly enough, I find nothing in the law (and I may have missed something) that says a person denied a CHL cannot reapply at some later point in time. I feel he must be able to later, because what if he was denied for a class B misdemeanor within the time limit. As soon as the time limit is out, he could reapply and get it. So, Kungfu might be able to reapply and go through the procedure again, this time with an attorney to appeal to the County Court at law.

Of course, this would be much more expensive than just getting a reciprocal from another state.

It's clear that DPS and the JP were wrong in the way they decided this case.

It is clear that DPS and the judge were RIGHT.

It is not that clear to me. When I just checked the Government Code, it said a conviction does not include anything that was expunged. No where in that definition did it say anything about it having to be qualified for expunction under Texas law or a charge that could be expunged under our law. It just said expunged. And the only court that can expunge a record is the court with the original jurisdiction. So, since Texas has no say over an Arkansas expunction, as Arkansas has no say over a Texas record, I would go with the Arkansas expunction as being valid and Kungfu should get his CHL.

Note that the part about it being a felony under Texas law is in a different section of the code, so the logic does NOT necessarily follow across. If the logic about our law applying on the expunction did follow, DPS then did it correctly. If it does not follow, DPS was wrong.

[carnaco]

Get a pardon and if it restores all gun rights in Arkansas you will be able to own and purchase under Federal Law.
Then reapply for your Texas CHL.

It's always good to consult an Attorney, you may need one in Arkansas and Texas. Join Pre-Paid Legal they have referrals for all states and usually deal with larger law firms with resources and contacts.
I have used them on legal issues in several different states with good results.

Good Luck

[frankie_the_yankee]

I disagree. I think he may be able to get a Texas CHL, especially with a good attorney. I will agree that his time limit for the appeal is gone and he cannot now appeal the denial.

But, Texas has a two year statute of limitations on general torts. Since the Government Code specifically says the license is a benefit, he MIGHT be able to sue the state under the general torts act.

A much better way would be to just apply again and go through the whole procedure over again, this time with the lawyer at the ready.

Excellent points and yes, you have a lot more class than I do.

[KungFu]

The application paperwork for the Pardon has been submitted, when (if) it gets approved I may re-apply for the Tx CHL.

In the meantime, Im seriously thinking about applying for the Utah CFP (after checking with an attorney first).

[frankie_the_yankee]

A much better way would be to just apply again and go through the whole procedure over again, this time with the lawyer at the ready. Interestingly enough, I find nothing in the law (and I may have missed something) that says a person denied a CHL cannot reapply at some later point in time. I feel he must be able to later, because what if he was denied for a class B misdemeanor within the time limit. As soon as the time limit is out, he could reapply and get it. So, Kungfu might be able to reapply and go through the procedure again, this time with an attorney to appeal to the County Court at law.

Or he could just re-apply and answer, "No", to the relevant questions, assuming that his attorney can determine that this answer is legally accurate.

And if DPS digs up his earlier application and/or denies the new one, he can have the lawyer handle the appeal.

[cxm]

Jeff,

I expect the JP agrees with the DPS because the JP is seldom an attorney and from what I have seen they seldom have the legal knowledge to feel comfortable in challenging state lawyers... plus they KNOW the DPS will appeal to the County Law Court if the decision goes against the DPS... and JPs don't like that a lot either.

JPs seem pretty obsolete to me, though I do think the concept of a citizen judge is very sound... they just need a lot more training...

FWIW

Chuck

Of course the JP ALWAYS agrees with the DPS....

V/r

Chuck


Why? DPS is not a voter in that county.

Man, lots of people sure have trouble with authority. It must be a conspiracy..............