Eligibility Question

[WildBill]

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.

After this happens a Texas attorney may be able to offer some legal advice. IMO, even if you are still not eligible, the expungement is still a good idea. Your attorney can explain all of the consequences.

[jbarn]

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.

Keth, isn't a domestic violence conviction only a permanent disqualification if it is a felony? Misdemeanor conviction would only make him ineligible for 5 years. I say that because he was given deferred adjudication, which does not disqualify him under federal law.

Or am I missing something

[cck781]

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.

[cck781]

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.

[Keith B]

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 woudl be equivelent 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.

[cck781]

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?

[WildBill]

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?

IANAL You seem to be missing the point. It doesn't matter who can or can not see your records.

[cck781]

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.

[WildBill]

“An ounce of prevention is worth a pound of cure.”

― Benjamin Franklin

[mikeloc]

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.

It made be cheaper than having it expunged. But if it is expunged even it shows up to DPS they it would not disqualify you.

GC §411.171. DEFINITIONS. In this subchapter:
(1) “Action” means single action, revolver, or semi-automatic action.
(2) “Chemically dependent person” means a person who frequently or repeatedly becomes intoxicated by excessive indulgence in alcohol or uses controlled substances or dangerous drugs so as to acquire a fixed habit and an involuntary tendency to become intoxicated or use those substances as often as the opportunity is presented.
(3) “Concealed handgun” means a handgun, the presence of which is not openly discernible to the ordinary observation of a reasonable person.
(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;
(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.

Mike

[baron]

It made be cheaper than having it expunged. But if it is expunged even it shows up to DPS they it would not disqualify you.

He's past the 5 year mark for misdemeanors so if he can legally buy a firearm from a FFL what's the problem for TX CHL?

[mikeloc]

It made be cheaper than having it expunged. But if it is expunged even it shows up to DPS they it would not disqualify you.

He's past the 5 year mark for misdemeanors so if he can legally buy a firearm from a FFL what's the problem for TX CHL?

According to the ATF if the offense is a domestic violence offense it does not matter weather it's a felony or misdemeanor. Once convicted you're banned under federal law for life. However if he was not convicted than there should not be a problem buying a gun or getting a Texas CHL, but if there is any doubt and you can get the arrest expunged it's something to consider. Again I'm not a lawyer and I agree if he can buy a firearm through 4473 he will probably qualify for Texas CHL. In the last century he could've called DPS and they would tell him weather or not the incident as stated would keep him from getting his license.

Mike

[jbarn]

It made be cheaper than having it expunged. But if it is expunged even it shows up to DPS they it would not disqualify you.

He's past the 5 year mark for misdemeanors so if he can legally buy a firearm from a FFL what's the problem for TX CHL?

According to the ATF if the offense is a domestic violence offense it does not matter weather it's a felony or misdemeanor. Once convicted you're banned under federal law for life. However if he was not convicted than there should not be a problem buying a gun or getting a Texas CHL, but if there is any doubt and you can get the arrest expunged it's something to consider. Again I'm not a lawyer and I agree if he can buy a firearm through 4473 he will probably qualify for Texas CHL. In the last century he could've called DPS and they would tell him weather or not the incident as stated would keep him from getting his license.

Mike

Mike you are correct, a CONVICTION for a DV is a dis-qualifier for possession of a firearm under federal law regardless of the category of the conviction. However, the OP received deferred. The question is if the deferred is a conviction in LA for federal purposes. Since he can buy from a dealer, I believe he is not ineligible for a Texas CHL.

Agree?

[mikeloc]

Mike you are correct, a CONVICTION for a DV is a dis-qualifier for possession of a firearm under federal law regardless of the category of the conviction. However, the OP received deferred. The question is if the deferred is a conviction in LA for federal purposes. Since he can buy from a dealer, I believe he is not ineligible for a Texas CHL.

Agree?[/quote]

I agree with you. He should be eligible, but like I said I'm no lawyer and don't entirely trust the system.

Mike

[cck781]

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.