Expungement Delimma

[KungFu]

Ive been a lurker for awhile, but this is my first post so bear with me...

Background: I was convicted of a felony in Arkansas in 1995. After I completed my sentence and came back to Texas, I was able to get it Expunged.

Fast forward 10 yrs...

I'm married, 3 kids, house, professional job, etc... not so much as a speeding ticket since "arkansas incident".
The job (real estate appraiser) requires me to ocassionally be in neighborhoods that I dont feel "safe" in, so I look into the requirements for obtaining a CHL.

On the DPS website, (paraphrased) GC411.171(4)(A) says that... "the term Convicted does not include an adjucation [abbreviated profanity deleted] guilt that has been Expunged."

I talked with several people, including the instructor for my CHL class, and everyone assured me that as long as I disclosed everything in the application package there shouldnt be a problem. I provided certified copies from the courthouse in Arkansas of the Judgement & Commitment Orders and the Order to Expunge, everything else was as required in the application.

I paid the fees, took the CHL class, waited and waited (and waited some more).
...And then was denied my CHL...
I was told that the reason for the denial, was that an Expungement from Arkansas was not the same as an Expungement in Texas... ???

The DPS attorney told me, after the denial hearing, that my only other option was to get it Pardoned.

Im now in the process of trying to get a Pardon from the Governor of Arkansas, (a 10-12 month process Im told), after which I'll be able to re-apply for the CHL. (if its approved)

Is this true? Any advice?

[longtooth]

Charles will problbly be the only one able to answer. Sit tight & he will be on before the day is over.

[txinvestigator]

It is called an expunction in Texas, and yes, DPS is correct. You were actually convicted of a Felony. In Texas, an expunction is only available if the charges were dismissed or you were found not guilty. Due to that, expunctions are irrelevant to getting a CHL, as there was no finding of guilt, or deferred adjudication.

Perhaps you could obtain a license from another state that has reciprocity with Texas.

[KungFu]

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.


txinvestigator, Re: getting a license from another state, Im not familiar with the ins-&-outs of reciprocity... How would I go about doing this?... Wouldnt I run into similiar problems?

[txinvestigator]

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.

txinvestigator, Re: getting a license from another state, Im not familiar with the ins-&-outs of reciprocity... How would I go about doing this?... Wouldnt I run into similiar problems?

I don't know. Different states have different requirements.

The DPS website has a list of states with which Texas has reciprocity.

[frankie_the_yankee]

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.

[HankB]

IANAL, but aren't the states all supposed to recognize one another's legal adjudications?

If he was convicted in another state, the conviction would stand, and Texas would recognize it - it would be a disqualification for CHL.

Since the same state later expunged the conviction - saying, in effect, it never happened - then it seems that Texas is required to recognize that, too.

It sounds like someone who also isn't a lawyer may be applying their own interpretation to reject the application.

KungFu needs to consult with an attorney.

[txinvestigator]

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.

The fact that DPS denied him is De Facto evidence that is not the case.

If he had a hearing, it was done in a JP Court in his county as per TGC, 411.180 (a). It appears the JP agreed with DPS and me.

Of course, within 30 days of the JP ruling, he can appeal to County Court at Law. (TGC 411.180 (e))

[Photoman]

Sounds like the KungFu was not denied based on 411.171 (4)(A).

KungFu: What exact part of the law did they use to deny your application?

[cxm]

Of course the JP ALWAYS agrees with the DPS....

V/r

Chuck

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.

The fact that DPS denied him is De Facto evidence that is not the case.

If he had a hearing, it was done in a JP Court in his county as per TGC, 411.180 (a). It appears the JP agreed with DPS and me.

Of course, within 30 days of the JP ruling, he can appeal to County Court at Law. (TGC 411.180 (e))

[txinvestigator]

[quote="cxm"]Of course the JP ALWAYS agrees with the DPS....

V/r

Chuck


Why? DPS is not a voter in that county.

Man, lots of people sure have trouble with authority. It must be a conspiracy..............

[KungFu]

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.

Obviously Im not an attorney, but thats the way I (and the other non-attorneys I asked) read it too.

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 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.

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.

[Crossfire]

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.

Utah has different requirements than Texas, and they may handle expungements differently too. The best thing about Utah is, if you have aquestions about your eligibility, you can call and ask them before you apply.

Call 801-965-4445, or email dpsfirearms@utah.gov. They will give you an answer pretty quick.

[frankie_the_yankee]

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.

[Mike from Texas]

A friend of mine that is in an almost identical situation to yours ran into the same issues with getting a Texas CHL. He applied for a Florida CHL and basically they told him that as long as it has been at least 3 years since any probations that he is eligible for a Florida CHL and they reciprocate with Texas.

He goes by Jackson on here and maybe you could PM him and talk to him about it. He's still waiting to receive his license but they and Texas DPS legal basically said there was no problem with what he was doing. I even believe his instructor was a Florida holder as well.

Here's his original post:

http://www.texasshooting.com/TexasCHL_F ... ght=#73777