Do deferred adjudication+ sealed = Safe to apply 4 CHL

[readyrock]

HB2730 amended Tex. Gov't Code §411.171 to exclude from the definition of "conviction" any conviction or deferred adjudication that has been sealed. Here is the operative language:

SECTION 6.06. Section 411.171(4), Government Code, is amended to read as follows:
(4)"Convicted" means an adjudication of guilt or, except as provided in Section 411.1711, an order of deferred adjudication entered against a person by a court of competent jurisdiction whether or not the imposition of the sentence is subsequently probated and the person is discharged from community supervision. The term does not include an adjudication of guilt or an order of deferred adjudication that has been subsequently:
(A)expunged; [or]
(B)pardoned under the authority of a state or federal official; or
(C)otherwise vacated, set aside, annulled, invalidated, voided, or sealed under any state or federal law. (Emphasis added.)

Since your "deferred" was sealed, you should be fine, whether or not DPS is able to see the record. Be sure to disclose it, or you will give DPS a valid reason to deny your application.

Chas.

So, am I to understand that a granted motion for non-disclosure on a successfully completed deferred adjudication is considered sealed? In other words, regardless of the felony (violent crime, burglary of habitation, etc.), if it was deferred then non-disclosed, the person is still qualified for CHL?

If so, I really misunderstood that one.

Yes this is true, but to qualify for a order of non-disclosure is not so easy to get for felony deferred adjudication.

[readyrock]

Hi, Based on your post, I'm 100% sure you would be denied. Don't waste your money. Until the law changes, you would be denied for life.

The law has changed and I have received my CHL

[Charles L. Cotton]

Hi, Based on your post, I'm 100% sure you would be denied. Don't waste your money. Until the law changes, you would be denied for life.

The law has changed and I have received my CHL

[Jumping Frog]

It is also nice that sealing or expunging felony records at the state level also clears the corresponding federal firearms disability.

[ScottDLS]

It is also nice that sealing or expunging felony records at the state level also clears the corresponding federal firearms disability.

I don't think deferred adjudications were ever considered convictions for federal firearms eligibility purposes. It's the Texas CHL purposes that have been "vexing" so many people.

[dingys32]

I received Deferred Adjudication for a class B misdemeaner. The county court judge in my case later granted my motion to (quoting from his order) "dismiss the proceedings herein and discharge said defendant prior to expiration of the term of probation herein". The judge's order further specified: "It is FURTHER ORDERED that this dismissal and discharge shall not be deemed a conviction for the purpose of disqualifications or disabilities imposed by law for conviction of an offense except as specifically provided in Section 5(c) of Article 42.12 of the Texas code of Criminal Procedure".

Section 5(c) of Article 42.12 does NOT apply to my case.

Because of this incident in my criminal record, DPS has denied my CHL application based on Section 411.172(a)(8) ELIGIBILITY and 411.171(4) DEFINITIONS. As I read the statutes and from the previous posts here, it seems to me that DPS's ruling may not be correct. Does anyone know whether the 2009 addition of (4)(c) to 411.171 makes me eligible for a CHL?

[Charles L. Cotton]

I received Deferred Adjudication for a class B misdemeaner. The county court judge in my case later granted my motion to (quoting from his order) "dismiss the proceedings herein and discharge said defendant prior to expiration of the term of probation herein". The judge's order further specified: "It is FURTHER ORDERED that this dismissal and discharge shall not be deemed a conviction for the purpose of disqualifications or disabilities imposed by law for conviction of an offense except as specifically provided in Section 5(c) of Article 42.12 of the Texas code of Criminal Procedure".

Section 5(c) of Article 42.12 does NOT apply to my case.

Because of this incident in my criminal record, DPS has denied my CHL application based on Section 411.172(a)(8) ELIGIBILITY and 411.171(4) DEFINITIONS. As I read the statutes and from the previous posts here, it seems to me that DPS's ruling may not be correct. Does anyone know whether the 2009 addition of (4)(c) to 411.171 makes me eligible for a CHL?

Email sent.

Chas.

[readyrock]

You will need to have your deferred adjudication "vacated, set aside, annulled, invalidated, voided, or sealed under any state or federal law. in order to be eligible see C below.

Tex. Gov't Code §411.171 wrote:SECTION 6.06. Section 411.171(4), Government Code, is amended to read as follows:
(4)"Convicted" means an adjudication of guilt or, except as provided in Section 411.1711, an order of deferred adjudication entered against a person by a court of competent jurisdiction whether or not the imposition of the sentence is subsequently probated and the person is discharged from community supervision. The term does not include an adjudication of guilt or an order of deferred adjudication that has been subsequently:
(A)expunged; [or]
(B)pardoned under the authority of a state or federal official; or
(C)otherwise vacated, set aside, annulled, invalidated, voided, or sealed under any state or federal law.

[SWAMPRNR]

You will need to have your deferred adjudication "vacated, set aside, annulled, invalidated, voided, or sealed under any state or federal law. in order to be eligible see C below.

Tex. Gov't Code §411.171 wrote:SECTION 6.06. Section 411.171(4), Government Code, is amended to read as follows:
(4)"Convicted" means an adjudication of guilt or, except as provided in Section 411.1711, an order of deferred adjudication entered against a person by a court of competent jurisdiction whether or not the imposition of the sentence is subsequently probated and the person is discharged from community supervision. The term does not include an adjudication of guilt or an order of deferred adjudication that has been subsequently:
(A)expunged; [or]
(B)pardoned under the authority of a state or federal official; or
(C)otherwise vacated, set aside, annulled, invalidated, voided, or sealed under any state or federal law.

§ 411.1711. CERTAIN EXEMPTIONS FROM CONVICTIONS. A
person is not convicted, as that term is defined by Section 411.171,
if an order of deferred adjudication was entered against the person
on a date not less than 10 years preceding the date of the person's
application for a license under this subchapter UNLESS THE ORDER OF
DEFERRED ADJUDICATION WAS ENTERED AGAINST THE PERSON FOR AN OFFENSE
UNDER TITLE 5 PENAL CODE OR CHAPTER 29 PENAL CODE

[dminkel]

Obviously reading the actual law is your best friend. ReadyRock volunteeringly submitted the paperwork he felt was necessary, but let’s look at the question on this Application just a little closer. (My point in the end being that he should have answered "NO" on the application.

Reported History
Have you ever been arrested or charged with a crime? (Regardless if pending, dismissed, committed as a juvenile, was long ago OR was in another state.)
YES___ NO___

ReadyRock already stated that his case was SEALED. Although he provided extra (unneeded paperwork), he answered yes and then (I assume) went on to fill out the Supplement Form CHL-78C.

Here’s the catch.... Did that application ask ReadyRock if he had ever been arrested or charged with a crime (Regardless if (A)expunged; [or]
(B)pardoned under the authority of a state or federal official; or
(C)otherwise vacated, set aside, annulled, invalidated, voided, or sealed under any state or federal law.

Nope, it sure didn’t. All you have to do is pay attention to the wording. The Application wants to know if you’ve ever been arrested or charged with a crime regardless if “pending” or “dismissed”. Noticed the outcomes for which you must list being arrested or charged with a crime and you will see that they do NOT include: Expunged, Pardoned, Vacated, Set aside, annulled, invalidated, voided, or sealed”

ReadyRock didn’t have an outcome of “pending” or “Dismissed”, his outcome was “SEALED”
And Finally, let’s talk about the outcome of SEALED.
(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.http://www.legis.state.tx.us/tlodocs/79 ... 03093F.HTM

Bottom line is that ReadyRock went above and beyond that which he had to disclose. The answer to the question on the application should have been “NO”

[readyrock]

The question ask if I have ever been arrested? and I was so the answer is YES
The question ask if I have ever been charged? and I was so the answer is YES

these are $140 questions

[tbrown]

If you don't tell the whole truth on those questions, DPS should reject your application based on the false statements. It's in the eligibility requirements.

(15) has not made any material misrepresentation, or failed to disclose any material fact, in an application submitted pursuant to Section 411.174 or in a request for application submitted pursuant to Section 411.175.

[dminkel]

Re: Do deferred adjudication+ sealed = Safe to apply 4 CHL
by tbrown » Sat May 21, 2011 1:05 pm

If you don't tell the whole truth on those questions, DPS should reject your application based on the false statements. It's in the eligibility requirements.

(15) has not made any material misrepresentation, or failed to disclose any material fact, in an application submitted pursuant to Section 411.174 or in a request for application submitted pursuant to Section 411.175.

----------------------------------------------------------------------------------------------------------------------

I guess I am not able to make myself clear. The language of the law is what we're after. If a felony has been sealed, that person is not required on ANY application. Read the actual language in this statute alone: You'll have to drop down to(g-2) (http://www.statutes.legis.state.tx.us/D ... GV.411.htm" onclick="window.open(this.href);return false;)

~ "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 application DOES tell you to list all charges or arrests but the above tells us that we may legally answer "no". In fact, the clarifying language (in parenthesis) says "regardless of pending or dismissed". The reason it didn't say "regardless if ....let's say Expunged or Sealed" is because it would represent a direct conflict in the law itself. In other words, the application isn’t going to ask you to list charges or arrests regardless if Sealed because it’s superfluous due to the fact that the question would lead you right back to (g-2) which clearly states the words “ANY application for licensing that you’ve been involved with any criminal proceeding related to the information that is the subject of an order issued under this section.

ReadyRock sent in an additional form which is just fine….nothing wrong with that at all. In fact, had he answered “NO” to the question, DPS would still delay the application and that person would get a letter in the mail wanting official proof that the record had indeed been sealed and/or a certified or official background check from your county clerk’s office that basically states a background check has been done and it’s clean and clear of any crimes etc. Why would They go through those extra steps since it was sealed……. Because they are NOT able to see the outcome without an order from the judge (which wouldn’t happen unless another crime was committed). What they DO see on your background check is that you had a charge and even the date it was entered into the system but they have no access to the final disposition without a court order. Even the person whose record has been sealed will not be issued this information. You Yourself cannot get that info so instead you turn in the document stating that there is nothing on the background check.

Is this a lie? According to all of us it is but according to the law it isn’t because you have been “forgiven”. Believe it or not, our laws used to follow the constitution whose basic laws (including forgiveness) came from a Christian bible. In God’s eyes, if you repent and sin no more, your sin will not be held against you. I’m not trying to get all Jesusy (in case any are offended), I’m just trying to explain why a crime that DID happen has now NOT happened. All your rights are restored to without limitation.

One more thing. The people at DPS are good people and CAN and WILL do everything within the confines of the law to get you a license. That’s what they’re there for. Material Misrepresentation is when you have something to cover up and you lie. There are too many examples of misrepresentation to list but telling the truth, as provided to you by law is not a lie. Worst case scenario is that the person with a sealed record will be a little inconvenienced. The same thing happens with firearm purchases….there will be a delay from NICS and the person with a sealed record will most likely have to wait 3 business days for a non-response. Meaning they don’t say yes or no. When a person gets his or her CHL, they won’t have to worry about that 3 day waiting period nor will they FFL dealer even do a background check.

This may or may not be old news to you: “The first TSRA-backed bill to be filed is SB 321 by Katy Senator Glenn Hegar, Jr. SB 321 protects the jobs of employees who wish to have a firearm in their vehicle when parked on their employer's parking lot.
The language includes CHLs; but goes beyond to include all legally owned and possessed firearms for hunters, competitors, youth coaches or those carrying a handgun in their vehicle for personal protection but without a license.
The firearm must stay in the vehicle when on the parking lot as the law does not extend to outside the personal, locked vehicle.
https://www.tsra.com/index.php?option=c ... Itemid=113" onclick="window.open(this.href);return false;

[snorri]

I guess I am not able to make myself clear. The language of the law is what we're after. If a felony has been sealed, that person is not required on ANY application. Read the actual language in this statute alone: You'll have to drop down to(g-2) (http://www.statutes.legis.state.tx.us/D ... GV.411.htm" onclick="window.open(this.href);return false;)

~ "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 application DOES tell you to list all charges or arrests

Right. So, is the arrest record sealed or is the conviction what's sealed?

If I was a DPS tech and someone answered "No" to the arrest question, and I found any record of them being arrested, I would deny the application for the reason quoted in the law unless DPS policy says otherwise. Same for someone who was arrested and never charged or indicted. If they want to appeal and explain to a judge why they didn't list the arrest, that's their right. (If it's really "sealed" then it wouldn't show up in any record checks I run, right? )

[4x4given]

So from http://www.statutes.legis.state.tx.us/D ... GV.411.htm" onclick="window.open(this.href);return false;

The point was presented that: "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."

Hmm... ok, but in 2009 it was ammended. (gotta read further down)

Text of subsection as amended by Acts 2009, 81st Leg., R.S., Ch. 780, Sec. 1
(i) A criminal justice agency may disclose criminal history record information that is the subject of an order of nondisclosure under Subsection (d) to the following noncriminal justice agencies or entities only:

(skipping items 1-20 for brevity)
(21) the Texas Department of Licensing and Regulation;

My expereince that you need to read the statute in it's entirety before deciding what it means and how it is applied. I, myself have been guilty of reading just until I saw what justified my position, only to read futher and find it negated.

I'm not lawyer, this is not legal advice.