TexasCHLforum.com

Well, to put it mildly, I'm bummed out. I've been on a three week trip out of the country, and was hoping to come back and find my plastic in the mail. Instead, I have a certified letter that says the Department has determined that I fail to qualify under eligibility criteria, blah, blah, blah.

Here's a synopsis of the situation:

20 years ago, while in college in another state, I did something stupid - resulted in Felony charges. In that state, to my knowledge, they didn't have "Deferred Adjudication" at that time, they used something called SIS - "Suspended Imposition of Sentance". This was as I understood it, exactly the same thing as what we now know as Deferred Adjudication.

I enter a guilty plea, with the understanding and agreement that the court will Suspend the Imposition of Sentance.
Court accepts guilty plea and orders 3 years community service.
I complete community service successfully.
I return to court, the state enters "Nolle Prosequi" - Not willing to prosecute.

I remember that the judge and my attorney clearly told me that one of the state requirements for a conviction was the imposition of a sentance, and that because the state was not willing to prosecute further, there was no sentance, and therefore no conviction.

I called the county clerk where this happened just before I sent my CHL application in, to get a copy of my records. She told me that they did have a card on file, and I think I remember she said it did not indicate a conviction. She also said that because it was so old, any additional files would have been destroyed because of the Suspended Imposition of Sentance status.

About 10 years later, I bought my first handgun. I was nervous about the NCIC background check, but it ended up being no problem. Another 10 years later, and I buy another handgun, again, no problem with the NCIC check.

I applied for my CHL in July. Of course, I reported the incident, and sent an uncertified copy of the records I had, since the county had basically no official records. Yesterday I got the denial letter from DPS.

Obviously, I'm bummed out and don't agree with their findings and would like to appeal the decision.

So here's a couple of questions:

1. Does anyone know of anybody being denied, requesting an appeal, and subsequently having their license issued after winning the appeal? I guess my question is along the lines of is it worth it to appeal? Do I really have a chance of winning, or once the DPS has made its' decision, will the judges usually go along with it? I don't want to get my hopes up or spend time and money if the chances of winning the appeal are zero before I even start.

2. Does anyone else see it my way - that the difference in "Deferred Adjudication" and "Suspended Imposition of Sentance" is basically semantics? Of course I do, but I also have a biased opinion, and may be reading things through rose colored glasses to see it my way.

3. Does anyone have a real experience in a hearing? If I decide to request the hearing, I don't know what to expect. Do I need an attorney with me? What kind of evidence do I need - like old statues, current statues, etc.?

4. If I do want to appeal, I have to respond in writing within 30 days. Should my letter simply state that I am requesting an appeal, or should I indicate basically what I have written above - attempt to explain why I think the decision was unjust. Along those lines, should I call the attorney from DPS that wrote the letter and attempt to explain my side of the story hoping he might understand and change his decision on his own?

Many thanks in advance!
Rob

It seems you have to appeal. In your favor you where legally able to buy firearms. You request a hearing and lawyer up! Good luck.

If the court had nothing on file, why did you send anything other than requested by DPS? Seems you gave them all they needed to turn you down. But, that said, I would appeal. If you were found not guilty, or not prosecuted, then you should get your CHL. But I would hire a lawyer and take your letter from the court.

Send a letter requesting an appeal. Nothing more. They have already denied you.
Trying to explain to them, is like trying to talk your way out of being arrested after you're already cuffed and in the back seat of the cruiser.

They will file the hearing in JP court, and they will present their facts to the Judge, and you will present your facts. The burden of PROOF is on THEM to prove that you are NOT Eligible, since Texas is a Shall Issue State.

It is not REQUIRED, but I HIGHLY Recommend getting a lawyer, preferably one that is expertly versed in CHL law. Might want to contact Charles for a recommendation, or to see if he's available himself!

Basically, get every single form of documentation you can showing that it was not a conviction of any kind. Signed notarized letters from everyone in that town stating that there are no records, etc. If you can find the judge that handled the case, a signed, notarized letter from him, your lawyer, the prosecutor, even the bailiffs. If you walk in there with 300 pages of documents showing that you were not, in fact, convicted, DPS will completely have it's work cut out for it.

It all depends on how far you want to go with this... but just remember. Right now, DPS considers you a Felon in their records.

Read that again. Whereas, before, where there was 'no records' of you breaking any laws, you are now 'in the system', somewhere, as a Felon.

Plain and simple. If this is NOT True, IMO, you have a duty to protect your good name.If you let this stand, via the sharing of records, who knows where else it could show up that you are a Felon? Traffic Stops? Tax Records? DL Renewal? Future Court proceedings? Job or Security BG Checks?
If you let it get into the system that you are a felon, when you are actually not, and do not contest it, it will be more difficult to prove that you are not later.
"My computer shows that you were convicted of a Felony.." And we all know that computers don't lie, right?

Am I being overly alarmist? Possibly, however, even if there is the slightest chance this will come back and bite you later, you have to take care of it Now.

rdhetrick wrote:Well, to put it mildly, I'm bummed out. I've been on a three week trip out of the country, and was hoping to come back and find my plastic in the mail. Instead, I have a certified letter that says the Department has determined that I fail to qualify under eligibility criteria, blah, blah, blah.
Rob

Rob - Sorry to hear about your predicament, but I agree with the other posters. File your letter for appeal ASAP, and then hire a CHL savvy attorney. IMO your chances without legal representation are nil.
Good Luck.

I remember that the judge and my attorney clearly told me that one of the state requirements for a conviction was the imposition of a sentance, and that because the state was not willing to prosecute further, there was no sentance, and therefore no conviction.

IANAL, but even if this were true, it appears that your sentence was three years community service.

I agree with Wild Bill. Something in your description doesn't add up. If you entered a guilty plea and had to do 3 years of community service, that sure sounds like a conviction.

If you want to fight this, I think the first step is to request a hearing. The second step is to hire a good attorney. The next step is to follow your attorney's advice.

Good luck.

I enter a guilty plea, with the understanding and agreement that the court will Suspend the Imposition of Sentance. Court accepts guilty plea and orders 3 years community service.

Your plea was heard and sentence passed. You're either a convicted felon, or that other state owes you three years back wages with interest. Sorry to bust your bubble.

A deferred adjudication is a "conviction" in Texas for purposes of CHL eligibility, unless it is for a non-violent felony and is at least 10 years old. From your description I can't tell if you were given what amounts to a deferred adjudication, or where convicted and given probation.

As of Sept. 1, 2009, the law changed. Any "conviction" that has been set aside by any method is no longer a conviction for purposes of CHL eligibility. If you can get any document that says the "conviction" was set aside, or a document that says they have no records, then you qualify. Since you applied in July, this was not the law at that time.

Call me at my office tomorrow if you like. 713-228-0700.

Chas.

Thanks again for the responses.

What I have read about deferred adjudication in Texas is exactly the same thing. The court requires either a guilty plea or a no contest plea. After the plea is entered, the court deferrs adjudication and orders supervised community service, ie probation. If the defendant goes the required time without getting into further trouble, the case is dropped.

That is exactly what happened to me, only the state it happened in called it suspended imposition of sentance instead of deferred adjudication as Texas calls it.

I'm not trying to ge argumentative, I just don't see how it is any different, and that is what I would base my appeal on.

Thanks again,
Rob

Charles L. Cotton wrote: As of Sept. 1, 2009, the law changed. Any "conviction" that has been set aside by any method is no longer a conviction for purposes of CHL eligibility.

does this mean that a deferred adjudication no longer = conviction for CHL purposes ?

IANAL but sure sounds like it to me.

LostInAustin wrote:IANAL but sure sounds like it to me.

if thats true , it sure does open the door for a whole bunch of folks that otherwise would have been ineligible .

USA1 wrote:

LostInAustin wrote:IANAL but sure sounds like it to me.

if thats true , it sure does open the door for a whole bunch of folks that otherwise would have been ineligible .

Wonder if that is a good thing or a bad thing?

Yes, you can successfully appeal the ruling. I know of many cases where JP's have overturned state agency rulings (well, TABC not DPS but the principal is the same). So yes, I think you should appeal.

My first advice is to ALWAYS get a lawyer when asking for a hearing. I would write the letter of appeal as soon as I could, even while waiting to contact Charles Monday. And I would definitely take him up on the offer to talk and get any advice you can.

I don't know how the new change in the law will work for you or not, but I can explain why there is a semantic difference between the terms. Texas has to look at other state's laws and terms as we understand them. In Texas, there are two types of deferred adjudication. One is where you plead guilty, get a temporary conviction, get a sentence to probation, and when you complete the probation, the final adjudication is changed to not guilty. This has always counted as a conviction in Texas for CHL purposes because the law defines conviction as "any adjudication" of guilt, even if later dropped. There is also a form of deferred adjudication which is also called court diversion. In this case, the case never gets to a court to be heard. The DA and your defense attorney work out an alternate corrective setting and that is what the judge approves. Completing those terms result in a not guilty finding and the case is dismissed.

I doubt that I would bring up the fact that you were able to purchase a firearm. The NICS checks are notoriously incomplete on old records (before everything was so computerized) and someone may claim you should not have been able to buy the guns, thus putting you in the position of being a felon in possession of a firearm. The laws will interpret the case differently, but this may be a step you don't need to go through. Listen to your lawyers on this though, as they will know the tactics better than I do.

I agree. Please give Charles a call.

Here is a "SUMMARY OF 2009 LEGISLATIVE CHANGES TO CONCEALED HANDGUN LICENSING ACT" that's on the DPS website, that may help, I hope. It's from the DPS website:

http://www.txdps.state.tx.us/administra ... bility.pdf" onclick="window.open(this.href);return false;