TexasCHLforum.com

Congratulations. I am glad that it didn't take too long to get it cleared up. Did they give any reason for the initial denial?

Sorry to hear that they denied you. If your paperwork specifically says that it was "set aside" then I don't see how they could. It will be interesting to hear how this turns out.

Did they call it deferred adjudication, or was it regular conviction and straight probation that was "set aside" when you completed it? If you did receive deferred adjudication, then I suppose that would mean that successful completion of deferred adjudication (after which the charges are dismissed and there never was a finding of guilt) would no longer be considered a conviction for CHL purposes.

I went ahead and emailed DPS and asked them to clarify this.

I did find some more information that may or may not help. In Donovan vs. State of Texas, the Court of Criminal Appeals wrote:

"... Under the deferred adjudication scheme, a judge does not make a "finding of guilt"; instead the judge makes a finding that the evidence "substantiates the defendant's guilt" and then defers the adjudication. (8) Appellant argues that a finding that the evidence substantiates guilt is a finding of guilt. But this construction of Art. 42.12 §5 is inconsistent with our holdings on the meaning of deferred adjudication. A deferred adjudication is often referred to as a deferral of a finding of guilt. (9) Trial courts routinely say, upon adjudication, that they "find (the defendant) guilty." (10) A defendant on deferred adjudication has not been found guilty. (11) That is one of the signal benefits of deferred adjudication as opposed to, for instance, regular community supervision. When adjudication is deferred, there is no "finding or verdict of guilt."

Because there is no finding of guilt, there is nothing to "set-aside." That does seem a little odd though. An example:

1. Person A committed misdemeanor assault and received deferred adjudication, successfully completes it, and is then considered not convicted, but cannot apply for a CHL for 5 years from the date of conviction.

2. Person B committed misdemeanor assault and received straight probation. At the termination of probation, person B requests that the judge "set aside" the conviction and be allowed to withdraw their plea. The request is granted and the person is then eligible to immediately apply for a CHL.

Why would Texas CHL law be harsher on person A than B? It is the same offense, but it would seem that the person that was given an opportunity not to receive a conviction is being treated harsher in terms of a CHL. Would an order of non-disclosure be considered "sealing" the record for purposes of the new language?

I guess I am a little confused by that then. The law now reads that orders of deferred adjudication that have been: "vacated, set-aside, annulled, invalidated, voided, or sealed" are no longer convictions. If such actions are not possible in Texas, then what is the point of amending the law? What cases can be "set aside"? I would like to assume that this revision was made with Texas law in mind, but I suppose that may not be the case. I do know that a deferred adjudication cannot be pardoned.

The law now reads:

"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

My understanding of the deferred adjudication process is that a judgement is "deferred" while the person is on community supervision/ probation and then is subsequently dismissed upon successful completion of that probation. I have seen background checks where some of these conviction show up as unknown or unreported. Following that, an order of non-disclosure is possible to stop the record from being released to the public. This leaves the criminal record available to law enforcement agencies and other state approved entities, but not to general public release. Expungement is an option, but generally only if it can be shown the person was in fact not guilty in the first place.

Generally, the unsuccessful completion of a deferred adjudication probation results in a true conviction. These individuals will likely receive probation and will eventually be released from it, but are convicted. I think it is also worth noting that I think Texas may be the only state the specifically calls it "deferred adjudication" as well.

In the first link, DPS states: "The most common situation is likely to be a conviction "set-aside," which may (but need not) follow the successful completion of probation."

I would think that most people who have been on deferred adjudication and have successfully completed it and were not convicted would think that this language applies to them.

Has this changed since H.B. 2730? it is my understanding that the successful completion of deferred adjudication results in the conviction being "set aside." Doesn't this mean that after the conviction is "set aside" that an individual is again elgible for a CHL since they are no longer convicted?

Here is what I am looking at:

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

and

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