TexasCHLforum.com

srothstein wrote: A much better way would be to just apply again and go through the whole procedure over again, this time with the lawyer at the ready. Interestingly enough, I find nothing in the law (and I may have missed something) that says a person denied a CHL cannot reapply at some later point in time. I feel he must be able to later, because what if he was denied for a class B misdemeanor within the time limit. As soon as the time limit is out, he could reapply and get it. So, Kungfu might be able to reapply and go through the procedure again, this time with an attorney to appeal to the County Court at law.

Or he could just re-apply and answer, "No", to the relevant questions, assuming that his attorney can determine that this answer is legally accurate.

And if DPS digs up his earlier application and/or denies the new one, he can have the lawyer handle the appeal.

srothstein wrote: I disagree. I think he may be able to get a Texas CHL, especially with a good attorney. I will agree that his time limit for the appeal is gone and he cannot now appeal the denial.

But, Texas has a two year statute of limitations on general torts. Since the Government Code specifically says the license is a benefit, he MIGHT be able to sue the state under the general torts act.

A much better way would be to just apply again and go through the whole procedure over again, this time with the lawyer at the ready.

Excellent points and yes, you have a lot more class than I do.

Yah. OK TXI. So I say OJ was aquitted due to jury nullification and you say that is my opinion - not fact. Then you go on to say that OJ was aquitted based on reasonable doubt. And this is somehow not just an (specifically, your) opinion?

This isn't the first time I have seen a tendency in your posts for you to simply assume that anything you say is a fact.

Besides the fact that in many cases where someone says to another, "That's just your opinion.", it is because they do not have a good reply to the logic or facts that the person cited to substantiate their opinion. So the only thing they can do is to try to dismiss it as "just" an opinion.

I've been observing people do this since you were in diapers. Don't think you invented the technique.

So let's get it on the table. I really don't give a red lollipop what your opinion is on any subject. If you offer one, and you can back it up with facts and/or logic, it will get due consideration. If you simply assert an opinion, it has little value on its own.

I stated that Kungfu qualifies for a CHL in TX, based on the fact that he has no criminal record that is required to be legally disclosed. I suspect that if you researched Arkansas expungement law, you would find that to be correct. I also think that if someone ran a criminal background check on Kungfu in Arkansas, assuming his posts to this board have been factual, it would come out clean.

You disagree with this, saying, "I disagree. he does NOT qualify. he was convicted of Possession with intent to distribute. "

That sounds like an opinion to me. And the reason you cite, his conviction, conveniently ignores the fact that that conviction was expunged by a court of competent jurisdiction. So I don't put much stock in that opinion.

Then, you go on to offer us more of your opinions.

"If a person is convicted of a crime that is called a misdemeanor in their state, but Texas calls it a Felony, it is a felony for CHL purposes. "

Note that I happen to agree with this opinion so long as the conviction remains on the person's record.

Still more opinions: "Accordingly, if a person receives a legal benefit called Expunction in their state, but Texas has a DIFFERENT definition, the Texas definition stands. Just like DPS and a court decided in this case."

DPS and a JP decided this in a case where the guy had no representation. You have no idea whether it would have turned out differently had Kungfu's lawyer been able to cite case law on the status of offenses expunged in other states, or even if such case law exists.

So you're talking through your hat.

Now then, if you happen to be a sitting justice on the Texas Supreme Court, just say so and I will take care to give your opinions more weight in the future.

txinvestigator wrote:

frankie_the_yankee wrote:

txinvestigator wrote:You guys realize that state law gave him two appeals, one of which a Justice Court Judge agreed with DPS' ruling, the other appeal he did not make in the time allocated by law.

He ain't getting a CHL in Texas, regardless of how much money he spends on an attorney.

Tell that to OJ Simpson.

OJ was aquitted by a jury of a criminal violation based on reasonable doubt. How is THIS the same?

There was no reasonable doubt as to OJ's guilt. He was aquitted mainly because Mark Fuhrman had used some bad language at some time in the past and lied about it on the witness stand. Also, the fact that OJ's attorneys were even allowed to pursue such an irrelevant line of questioning speaks to the massive incompetence of the prosecution team and Judge Ito as well.

OJ's aquittal was one of the most notorious cases of jury nullification in modern history.

As to how Kungfu's case is related, it's simple.

1) At the time OJ was aquitted he was the guiltiest man in America.

2) He had a ton of money and he spent it on lawyers.

3) If not for #2 above, he would probably have gotten the death penalty.

4) You spend enough money on good lawyers, and you can move mountains.

Now in Kungfu's case, we have a guy who actually does qualify for a TX CHL, but who spoiled things for himself by giving the wrong answer when he filled out his application. He gave that wrong answer because he did not avail himself of proper legal advice first.

If he had consulted a lawyer before filling out his TX CHL application, he would have been told to answer "no" to the question of had he ever been convicted of a felony (or whatever it is they ask exactly).

It's not up to Texas as to whether they recognize an Arkansas expungement. The crime wasn't committed in TX. Kungfu has never been convicted of anything in TX or by TX. And if TX did a criminal background check on Kungfu in Arkansas or in any other state, it would come back clean.

Because as far as Arkansas is concerned, Kungfu's slate has been wiped clean.

Then after messing up his application, he foolishly tried to work things out himself, again without the benefit of legal advice or representation. He was expecting DPS and the JP to be reasonable and interpret the law correctly. They did not.

It's clear that DPS and the JP were wrong in the way they decided this case.

Now it says here, you throw enough legal talent (and money of course) at that situation and it WILL get corrected.

Maybe Kungfu's legal team files suit in state or federal court claiming his civil rights were violated. After all, if you're a law-abiding citizen who meets the requirements, you have a "right" to a CHL in TX, right?

Kungfu may not have those resources available to him, in which case he is out of luck. But he can still pursue getting an out of state CHL, (as you suggested early on) provided that he gets good legal advice in helping him make the attempt.

Me? I'm stubborn. If I think I'm getting pushed around by ignorant or hostile public officials, I push back.

Yeah, I know. I'm not logical. I don't understand reality. I don't make any sense. Etc.

txinvestigator wrote:You guys realize that state law gave him two appeals, one of which a Justice Court Judge agreed with DPS' ruling, the other appeal he did not make in the time allocated by law.

He ain't getting a CHL in Texas, regardless of how much money he spends on an attorney.

Tell that to OJ Simpson.

HankB wrote:I don't see how Texas procedures & procedures on expunctions have any relevance whatsoever to an Arkansas expunction of an Arkansas conviction before an Arkansas court for an Arkansas law violation.

IANAL, but I tend to see it this way.

1) Has Kungfu been convicted of a felony in or by the state of Texas?

No.

2) Has Kungfu been convicted of a felony in or by the United States?

No.

3) Has Kungfu been convicted of a felony in or by any other state?

Since his Arkansas conviction has been expunged by the state of Arkansas, if you ask that question of Arkansas or any other state, and that state does a criminal records check, the answer you will get will be, "No."

I believe that Kungfu made a mistake when he stated that he had an expunged conviction on his TX CHL application. I don't have an application in front of me, but unless the question is worded so that it specifically says to include expunged convictions and/or details of the expungement order, he should have simply answered "No" to the question. Now that DPS knows about it, they are jerking him around.

I think a lawyer will advise him that if he encounters a "have you ever been convicted of a felony" question ANYWHERE where it doesn't specifically say that expunged convictions are included, he should answer "No", and that in doing so he will be telling the "legal truth".

A good lawyer can probably pound his application through DPS if he wants a TX CHL. (That's what I would do.) But if he is satisfied with one from FL or some other state, that should be a piece of cake.

It might even be a good move to get one from another state first, then have the lawyer pound it to DPS. That would almost render their position moot.

KungFu wrote: The paperwork I have from Arkansas says "Order to Seal", lists the case#, etc., and is stamped "Expunged" across the top.

I dont think Id want to risk simply "not telling" Utah or Florida about the incident... Id be afraid that it would show up, expungement or not, and I dont want to get into any more trouble...

I think you're mistaken about that. I think you should consult a lawyer.

KungFu wrote: It doesnt show up on the DPS web-check thats available to civilians, but does it show to LE?
Is there any way I can have a check done by a LEO, just to see if it shows up?

Consult a lawyer.

KungFu wrote: After looking at some related threads, I see that regardless of what the States think, the Feds arent going to want me to have a weapon and would find me in violation.

I think you're wrong about that too. Get a lawyer.

KungFu wrote: I thought I had put this whole thing behind me years ago...

You probably have. Get a lawyer. Tell him waht you want to do. Tell him you wish to fully comply with the law. Pay him some money and do what he says.

KungFu wrote:I think you're right about the offense (possession of a controlled subst w/ intent to deliver)...

No, like an idiot, I didnt have an attorney with me at the hearing. I had talked with a couple of attorneys in the weeks preceeding, about representing me but one that sounded most sure of the case, wanted $1500 and offered no guarantees... so yeah, I was unarmed

I appreciate all the quick replies, good suggestions and leads... Wish I had found this forum Before the hearing

For future reference, no honest lawyer will "guarantee" results. What they will say is, "You never know what's going to happen in court." It's not what you want to hear, but it's true.

The bottom line is, without a lawyer you have a huge chance of getting rubber-hosed. With a lawyer, you have a fair chance of coming out OK.

KungFu wrote: Unfortunately for me, the DPS attorney and the JP read it as TXI has been stating all along... that since I WAS convicted of a felony, I wasnt eligible...

I don't think they read it that way at all. I think the particular offense that you had expunged is one that TX does not allow to be expunged.

KungFu wrote: I wasnt aware I could appeal the JPs decision from the hearing, and its been more than 30 days, so thats out... looks like a Pardon from the governor may be my only answer.

Did you have a lawyer accompany you to the JP hearing? If not, let that be a lesson to you.

Remember the first rule of a gunfight - HAVE A GUN! Never go to a court of any kind without an attorney unless you are simply pleading guilty and/or are fully resigned to losing and paying the maximum penalty.

If you don't already have one - get a lawyer. Whatever it costs, it will seem cheap when you're done.

Been there, done that, got the teeshirt, and working on the book deal.

KungFu wrote: After my first post, I looked at getting a Utah CHL, but one of the first things listed on the requirements section of their website is NO FELONIES.

At this point Im wondering if DPS would have a problem with me even Owning a gun.

I think the first thing you have to do is find out if the state of Arkansas considers you to be a convicted felon. Since they expunged the conviction, I would think not. But talk to a lawyer and have him find out exactly what your status is.

What you are seeing on the Utah website refers to current felonies - not expunged ones.

Normally, when a conviction is expunged, it is like it never existed for most purposes.

I think your problem in TX may be because the particular felony that you were convicted of is not eligible for expungement in TX. I don't know this, because I don't know what you were convicted of, but from everything you have posted it seems like that is what is holding you up.

Different states allow for different types of convictions to be expunged. I'd suggest you look up Utah's eligibility rules for starters.

Another thing you might do is try to buy a gun. Answer every question truthfully on the 4473. But first consult an attorney so you are sure as to what constitutes a truthful answer.

I have a friend in RI who had an old conviction expunged. Afterwards, his attorney advised him that if he was filling out a form that asked, "Have you ever been convicted of a felony?", the legally correct answer was, "No.". But the law might be different here and the requirements for 4473's might be different too. So be sure to see a knowledgeable lawyer about this.

Anyway, fill out the 4473 and see if you pass the NICS check. As long as you tell the legally correct truth you can't get in trouble even if you get denied. And if you get approved for the purchase, you know you're OK with the Feds and/or whoever does the NICS checks here. (Some states do their own.)

Lastly, don't take my advice. I'm not a lawyer. Make sure you consult one before going ahead with any of this. From what you've posted, it seems there should be some way for you to legally buy guns and even to legally carry them. You just need some expert help navigating the system.

txinvestigator wrote:

KungFu wrote:Cut & Pasted from the DPS website...
http://www.txdps.state.tx.us/administra ... chlaws.htm

GC §411.171. DEFINITIONS

(4) "Convicted" means an adjudication of guilt or 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.

As I wrote, In Texas an Expunction is not available for convictions. Since you WERE convicted, you are not eligible in Texas.

TXI, from where I sit it seems like you're reading this wrong. Where it says that a conviction, "does not include an adjudication of guilt or an order of deferred adjudication that has been subsequently:

(A) expunged; or....", it seems to be saying that convictions that have been expunged do not count as convictions for the purpose of disqualifying someone from getting a CHL.

So in other words, if you are convicted, which Kungfu was, and you subsequently get it expunged, which he did, the conviction doesn't stop you from getting a CHL.

In a later post, Kungfu explained that DPS denied him anyway because the offense that he got expunged in the other state is not eligible to be expunged in TX.

That's a whole different issue. And it could be something that even makes it difficult for Kungfu to buy a gun in the first place.

But all in all, if he can get a CHL in almost any other shall issue state he would be OK in TX because we recognize CHL's issued in many other states, even including ones that do not recognize our CHL's.

So he just needs to find a state that would recognize the expungement, and that issues non-resident permits.