TexasCHLforum.com

I submitted all court dispositions online and there were no issues. I received the following update this morning. 51 days from online submission to completed background check.



Application : Received
Fingerprints : Complete
Affidavits : Received
DL or ID : Valid
Citizenship : No documentation required
Passport photo holder : Received
Photo : Received
Proof of Classroom training : Received
Proof of Proficiency training : Received
Fee : Received
Background Check : Completed
Concealed Handgun License : Manufacturing Pending

I called and spoke to someone at the DPS yesterday and they said a misdemeanor DV charge does not automatically disqualify you. They said since my conviction was deferred and set aside in 2006 it would definitely fall under the 5 year rule and I would qualify if I were to apply. I will do just that this weekend and let everyone the know the outcome once I get a decision. Thanks again to all that responded.

Keith B wrote:It is going to depend on what the charge for the offense would be in Texas, not Louisiana.

GC §411.172. ELIGIBILITY. (a) A person is eligible for a license to carry a concealed handgun if the person:
(1) is a legal resident of this state for the six-month period preceding the date of application under this subchapter or is otherwise eligible for a license under Section 411.173(a);
(2) is at least 21 years of age;
(3) has not been convicted of a felony;
(4) is not charged with the commission of a Class A or Class B misdemeanor or equivalent offense, or of an offense under Section 42.01, Penal Code, or equivalent offense, or of a felony under an information or indictment;
(5) is not a fugitive from justice for a felony or a Class A or Class B misdemeanor or equivalent offense;
(6) is not a chemically dependent person;
(7) is not incapable of exercising sound judgment with respect to the proper use and storage of a handgun;
(8) has not, in the five years preceding the date of application, been convicted of a Class A or Class B misdemeanor or equivalent offense or of an offense under Section 42.01, Penal Code, or equivalent offense;
(9) is fully qualified under applicable federal and state law to purchase a handgun;
(10) has not been finally determined to be delinquent in making a child support payment administered or collected by the attorney general;
(11) has not been finally determined to be delinquent in the payment of a tax or other money collected by the comptroller, the tax collector of a political subdivision of the state, or any agency or subdivision of the state;
(12) is not currently restricted under a court protective order or subject to a restraining order affecting the spousal relationship, other than a restraining order solely affecting property interests;
(13) has not, in the 10 years preceding the date of application, been adjudicated as having engaged in delinquent conduct violating a penal law of the grade of felony; and
(14) has not made any material misrepresentation, or failed to disclose any material fact, in an application submitted pursuant to Section 411.174.
(b) For the purposes of this section, an offense under the laws of this state, another state, or the United States is:
(1) except as provided by Subsection (b-1), a felony if the offense, at the time the offense is committed:
(A) is designated by a law of this state as a felony;
(B) contains all the elements of an offense designated by a law of this state as a felony; or
(C) is punishable by confinement for one year or more in a penitentiary; and
(2) a Class A misdemeanor if the offense is not a felony and confinement in a jail other than a state jail felony facility is affixed as a possible punishment.
(b-1) An offense is not considered a felony for purposes of Subsection (b) if, at the time of a person's application for a license to carry a concealed handgun, the offense:
(1) is not designated by a law of this state as a felony; and
(2) does not contain all the elements of any offense designated by a law of this state as a felony.

As I read RS 14:35.3, it does not appear to me a first offense would be a felony, but jail time would be equivalent to a Class A misdemeanor since jail time is under 1 year. Texas Penal Code Title 5 does have misdemeanor offenses, so as stated, unless it is a felony charge, then it should fall under the 5 year rule.

However, I am not a lawyer, don't play one on TV, and did not sleep at a Holiday Inn Express last night, so take this info for what it's worth.

Thanks for the response. After reading everything I possibly could on the matter I came to the same conclusion as you. I guess the best and most cost effective thing to do is to apply, disclose everything, supply all of the supporting documentation I have and let them decide. It would still be cheaper then hiring two lawyers and paying for an expungment.

Keith B wrote:The problem is this was a domestic violence offense which is a permanent disqualification. As stated, you need to look into getting this officially expunged from your record.

It seems this would disqualify me then. I spoke to the clerk of court again and I can get the arrest expunged but it will only be removed from public record. She said Law enforcement agencies FBI and DPS included will still have access to the arrest record. I asked about expunging the conviction and she said there is nothing to expunge because the conviction was never added to my permanent record. I tend to believe this because in the reports I've pulled Louisiana NCIC and FBI they show nothing but the arrest. Is it strictly the arrest of domestic violence that is the permanent disqualification? And if law enforcement can see expunged arrests anyway what would it matter if it's removed?

nightmare wrote:

jbarn wrote:His deferral only makes him ineligible if it was a felony, right? That is why I asked him about the potential penalty had he been convicted. If he could have been given over a year, then Texas treats it like a felony.

A deferred adjudication counts as a conviction for at least 10 years, but if the misdemeanor was adjudicated more than 5 years ago then it may not disqualify him. Considering it's Louisiana, maybe a lawyer isn't a bad idea, unless the layer's opinion will cost more than applying and letting DPS tell you their opinion.

This morning I was thinking the same thing. The application fee and CHL class fee would be considerably less then paying the lawyer and expungment fees. Just for kicks I was looking at the Louisiana CHL eligibility requirements and they are very similar to Texas, even the deferred adjudication part. Except when it comes to using Article 894, I'm thinking that Louisiana views it more as a acquittal or dismissal then deferred adjudication. It must be listed on the application but it doesn't disqualify you. If only Texas viewed things the same I'd be set.

jbarn wrote:

cb1000rider wrote:I can't recommend, however the board owner Charles may be able to refer you.

Before you go that route:
Your 894 equates to a deferral in Texas and the deferral makes you ineligible per Texas law, my advice would be to seek expungement in Louisiana. Note, I'm not an attorney. I'm not sure that you can go up against the laws that are on the books.

His deferral only makes him ineligible if it was a felony, right? That is why I asked him about the potential penalty had he been convicted. If he could have been given over a year, then Texas treats it like a felony.

The charge was Louisiana RS 14:35.3 (misdemeanor). If I'm not mistaken the max potential penalty is six months. It was my first offense so the sentence was suspended, I served no jail time.

Would anyone be able to recommend a Texas lawyer who specializes in these type of CHL issues?

Thanks for the responses. Like suggested I will probably have to consult a lawyer. From researching more online Article 894 is basically a expungment of the conviction but not the arrest. Apparently that's why there is no disposition available anywhere, not sure if this makes a difference to the DPS though. From my searches it's like the court case never existed. If it weren't for the arrest showing it would be like it never happened.

"If you have been charged with a first time felony or misdemeanor in Louisiana, you should try to have your attorney enter your plea under articles 893 / 894 of the Louisiana Code of Criminal Procedure. Article 893 is for felony pleas and 894 is for misdemeanor plea agreements. The importance of the 893 / 894 plea is that the conviction is never entered on your record, and if you follow all of the conditions, you will be allowed to expunge the arrest."

After reviewing the clerk of court website it appears I can file a motion to expunge, pay a $350 fee and the arrest will be removed from all local LE and State Police NCIC databases. This may be the way to go.

Federally I'm not disqualified from owning or buying firearms. In the past I have been flagged "delayed" but the check always go through. In hindsight this is probably because of the DV arrest showing up. From what I understand the federal laws aren't that strict if your DV charge was set aside of dismissed then it's like it never happened and your gun rights are restored.

ATF form 4473:
"EXCEPTION to 11.c. and 11.i.: A person who has been convicted of a felony, or any other crime, for which the judge could have imprisoned the person for more than one year, or who has been convicted of a misdemeanor crime of domestic violence, is not prohibited from purchasing, receiving, or possessing a firearm if: (1) under the law of the jurisdiction where the conviction occurred, the person has been pardoned, the conviction has been expunged or set aside, or the person has had their civil rights (the right to vote, sit on a jury, and hold public office) taken away and later restored AND (2) the person is not prohibited by the law of the jurisdiction where the conviction occurred from receiving or possessing firearms. Persons subject to this exception should answer "no" to 11.c. or 11.i. as applicable."

My next question would be if the arrest is expunged and there is no record of the event at all anywhere should it even be listed on the application?

If I recall correctly I plead Article 894. I did do a period of probation but I don't recall how long it was. From what I understood Article 894 is pretty much the same thing as being expunged. Clerk of Court in Louisiana said the arrest should not show on the FBI report, but it's there. Something in the process must of went wrong because the disposition was removed but not the arrest. Had it been removed I don't think I would have any issues because it would not exist in any database.

jbarn wrote:

cck781 wrote:Newbie here with an eligibility question. I'm wanting to apply soon but I want to make sure everything with my background is good before I do so. I've done a check online with the DPS website and nothing was found. I also ordered a FBI criminal history check. The only thing that shows up with the FBI is a 2006 arrest from Louisiana for domestic violence however they show no disposition. I have verified with the reporting clerk of court in Louisiana that the final disposition of the case was listed as set aside/dismissed in their records, they are sending me a certified copy of the disposition. If I supply the DPS with all the supporting documentation will the DV charge disqualify me? Thanks in advance for your responses.

Only a conviction will disqualify you. If the dismissal was a result of a deferred adjudication then it is a conviction for CHL purposes.

Was the case outright dismissed before you entered a plea, or did you plead no contest and serve a period of probation before the dismissal?

Newbie here with an eligibility question. I'm wanting to apply soon but I want to make sure everything with my background is good before I do so. I've done a check online with the DPS website and nothing was found. I also ordered a FBI criminal history check. The only thing that shows up with the FBI is a 2006 arrest from Louisiana for domestic violence however they show no disposition. I have verified with the reporting clerk of court in Louisiana that the final disposition of the case was listed as set aside/dismissed in their records, they are sending me a certified copy of the disposition. If I supply the DPS with all the supporting documentation will the DV charge disqualify me? Thanks in advance for your responses.