Reported History Question

[Paul's Shield]

So I introduced myself earlier and I already have my first question. I've read a lot about eligibility and at my current status I appear to be eligible regardless of the outcome of my question and answer recieved. However, my question prior to explaining the past situation, do I disclose this reported history?

Now to story:

13-14 years ago(2000) right of high school I was arrested and indicted for burglary of a habitation. I won't go into specifics but I was arrested wrongfully. In the end "a witness exonorated defendant(me)" and my case was dismissed a year later. Fast forward about 5-6 years after that situation while obtaining my Texas Department of Insurance Licenses, which basically requires the same background check and record free of any incident, I had to hire an attorney to perform an expungement. I got it and now my record shows clean and clear with no record of arrest, indictment or anything criminal. Let me add I was never convicted or charged.

One question on the application under Reported History ask "Have you ever been arrested or charged with a crime? (Regardless if pending, dismissed, commited as a juvenile, was long ago OR was in another state)."

My attorney told me back when I got that expungement and knows the grief I went through to clear my name said that if anyone ever asked or an application ever asked about an arrest I was to answere with a firm "No".

Do I answer no and proceed or answer yes and explain and acquire a record search that will indicate nothing?

Thanks for your help and advice in advance.

[WildBill]

So I introduced myself earlier and I already have my first question. I've read a lot about eligibility and at my current status I appear to be eligible regardless of the outcome of my question and answer received. However, my question prior to explaining the past situation, do I disclose this reported history?

I don't have an answer for you, but welcome to the forum Paul's Shield. I am sure that one of the instructors will answer your question for you.

[Tic Tac]

The instructions from DPS are crystal clear. You have to report it.

You say your lawyer has a different opinion. That's great but he's not the one who will process your application.

[Keith B]

You must disclose it and the status.

[Paul's Shield]

Thanks for the reply. I definitely don't want to fudge up an application and loose my application fee. Now with that said I have all my documentation that states the case was dismissed and even expunged. I'm waiting on a criminal record search from Waller County Clerk which has no indication of arrest or indictment or anything.

I'm assumming I'll need to provide that information if they request for it?

[Keith B]

Thanks for the reply. I definitely don't want to fudge up an application and loose my application fee. Now with that said I have all my documentation that states the case was dismissed and even expunged. I'm waiting on a criminal record search from Waller County Clerk which has no indication of arrest or indictment or anything.

I'm assumming I'll need provide that information if they request for it?

You should send the copies with it when you submit your applicaiton on what you list. That way they will have it all up front and you should be all set.

[Teamless]

I'm assumming I'll need to provide that information if they request for it?

Since you will be noting the arrest on the application, you may want to simply include it the disposition when you submit your other documentation.
it will save them efforts and certainly get you your CHL sooner.

[Tic Tac]

A letter from the court saying nothing was found is ideal. It shows you're clean even if the DPS investigators turn up an arrest record or something else lingering in the systems and records DPS checks.

[Paul's Shield]

A letter from the court saying nothing was found is ideal. It shows you're clean even if the DPS investigators turn up an arrest record or something else lingering in the systems and records DPS checks.

That's exactly what I'll do then. Don't want to delay any more than they already are.

[airbornecpa]

I am NOT a lawyer, but it would be good to have one (Charles?) weigh in on this issue

Just as concealed means CONCEALED, expunged means EXPUNGED.

Definition: Expunge - To destroy; blot out; obliterate; erase; efface designedly; strike out wholly. The act of physically destroying information—including criminal records—in files, computers, or other depositories.

Texas Statute:

Art. 55.03. EFFECT OF EXPUNCTION. When the order of expunction is final:

(1) the release, maintenance, dissemination, or use of the expunged records and files for any purpose is prohibited;

(2) except as provided in Subdivision (3) of this article, the person arrested may deny the occurrence of the arrest and the existence of the expunction order; and

(3) the person arrested or any other person, when questioned under oath in a criminal proceeding about an arrest for which the records have been expunged, may state only that the matter in question has been expunged.

IMO, There is NO reason to disclose something that has been EXPUNGED. The law is the LAW, DPS instructions on a form are NOT THE LAW.

By disclosing that which has been expunged you are surrendering at least one of your rights.

Once again, IANAL

[WildBill]

I am NOT a lawyer, but it would be good to have one (Charles?) weigh in on this issue

Just as concealed means CONCEALED, expunged means EXPUNGED.

Definition: Expunge - To destroy; blot out; obliterate; erase; efface designedly; strike out wholly. The act of physically destroying information—including criminal records—in files, computers, or other depositories.

Texas Statute:

Art. 55.03. EFFECT OF EXPUNCTION. When the order of expunction is final:

(1) the release, maintenance, dissemination, or use of the expunged records and files for any purpose is prohibited;

(2) except as provided in Subdivision (3) of this article, the person arrested may deny the occurrence of the arrest and the existence of the expunction order; and

(3) the person arrested or any other person, when questioned under oath in a criminal proceeding about an arrest for which the records have been expunged, may state only that the matter in question has been expunged.

IMO, There is NO reason to disclose something that has been EXPUNGED. The law is the LAW, DPS instructions on a form are NOT THE LAW.

By disclosing that which has been expunged you are surrendering at least one of your rights.

Once again, IANAL

Finally, someone who agrees with me.

I have heard that the CHL instructors, during their training, have been taught by the DPS that you must report arrests, even if expunged. I believe the DPS website states that as well.

As you, IANAL, but I don't see how the DPS can disregard a legal court order. In my opinion, this information is requested to make the background check faster and more efficient. If the DPS finds something in their records search that you don't disclose then they have to ask for more information and records. If they have the information up front, they can make a quicker decision and continue processing the application.

[jbarn]

I have never heard anyone at DPS state that an expunction must be disclosed. DPS is well aware of the legal obligations an expunction holds.

I do not think you must disclose. .

[WildBill]

I have never heard anyone at DPS state that an expunction must be disclosed. DPS is well aware of the legal obligations an expunction holds.

I do not think you must disclose. .

From the DPS Website:

18. Am I required to list all arrests on my application, even if the cases were dismissed or if I was found not guilty?
Yes. Applicants are required to report all arrests in order to ensure the background checks can be conducted timely. The application should include the year, the offense, the location and the final disposition. Copies of the dispositions will assist in the timely processing your application. Applicants should also include information on cases that resulted in probation or deferred adjudication. Failure to provide any requested documentation could result in the termination of an application.

http://www.dps.texas.gov/RSD/CHL/faqs/index.htm" onclick="window.open(this.href);return false;

[jbarn]

I have never heard anyone at DPS state that an expunction must be disclosed. DPS is well aware of the legal obligations an expunction holds.

I do not think you must disclose. .

From the DPS Website:

18. Am I required to list all arrests on my application, even if the cases were dismissed or if I was found not guilty?
Yes. Applicants are required to report all arrests in order to ensure the background checks can be conducted timely. The application should include the year, the offense, the location and the final disposition. Copies of the dispositions will assist in the timely processing your application. Applicants should also include information on cases that resulted in probation or deferred adjudication. Failure to provide any requested documentation could result in the termination of an application.

http://www.dps.texas.gov/RSD/CHL/faqs/index.htm" onclick="window.open(this.href);return false;

Legally, an expunction erases all evidence of an arrest. Even booking photos are supposed to be destroyed. A person who received an expunction can lawfully state they were not arrested.

[WildBill]

I have never heard anyone at DPS state that an expunction must be disclosed. DPS is well aware of the legal obligations an expunction holds.

I do not think you must disclose. .

From the DPS Website:

18. Am I required to list all arrests on my application, even if the cases were dismissed or if I was found not guilty?
Yes. Applicants are required to report all arrests in order to ensure the background checks can be conducted timely. The application should include the year, the offense, the location and the final disposition. Copies of the dispositions will assist in the timely processing your application. Applicants should also include information on cases that resulted in probation or deferred adjudication. Failure to provide any requested documentation could result in the termination of an application.

http://www.dps.texas.gov/RSD/CHL/faqs/index.htm" onclick="window.open(this.href);return false;

Legally, an expunction erases all evidence of an arrest. Even booking photos are supposed to be destroyed. A person who received an expunction can lawfully state they were not arrested.

Government agencies, such as they are, are not 100% effective following the letter of the law. I could be wrong, but I don't believe that all evidence is completely destroyed in all cases. Did you ever read about J. Edgar Hoover's personal and confidential files?