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.
Ahm jus' a Southern boy trapped in a Yankee's body
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
"Discontent is the first step in the progress of a man or a nation"
- an uncommonly wise fortune cookie
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.
Ahm jus' a Southern boy trapped in a Yankee's body
Yeah, I got the impression that the outcome had pretty much been decided before I even arrived... That it was just a procedural matter for them to tell me No and send me on my way.
"Discontent is the first step in the progress of a man or a nation"
- an uncommonly wise fortune cookie
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.
Texas does not allow expunctions for ANY conviction unless the conviction is subsequently pardoned
*CHL Instructor*
"Speed is Fine, but accuracy is final"- Bill Jordan
Remember those who died, remember those who killed them.
KungFu wrote:I wonder why its worded the way it is then?
it says Expunged or Pardoned.
There is actually one other case; in some curcumstances, if a person was convicted, but that conviction was later acquitted by the Court of Criminal Appeals, an expunction can be had.
*CHL Instructor*
"Speed is Fine, but accuracy is final"- Bill Jordan
Remember those who died, remember those who killed them.
I asked by CHL Instructor who is a LEO as well, he confirmed that if the charges were expunged, you should be eligable for a TX CHL. He asked if the case was deferred adjudication with expungment of records afterwards, then it is not true expungement.
Additionally, he said that many TX Attorneys do not know that the State treats any deferred adjudication as a conviction on the background.
He suggested that you call Legal and ask one of their attorneys to you in reference to Arkansas.
If it helps to understand this, I was just looking at the Arkansas statutes on Findlaw. Their code section 16-90-1201 says that a felony for drug possession will be expunged BUT that the effect will be as in the case for sex offenses (section 16-90-901). In the referred section, it says the record is sealed and isolated but not physically destroyed.
And in the next section (16-90-902), it says this:
(a) An individual whose record has been expunged in accordance with the procedures established by this subchapter shall have all privileges and rights restored and shall be completely exonerated, and the record which has been expunged shall not affect any of his or her civil rights or liberties unless otherwise specifically provided by law.
(b) Upon the entry of the uniform order to seal records of an individual, the individual's underlying conduct shall be deemed as a matter of law never to have occurred, and the individual may state that no such conduct ever occurred and that no such records exist.
As I read it, Kungfu may have a good case to go to court against DPS, despite the 30 day limit. But I would simply not tell Utah or Florida about the incident, if I understand it correctly.
Thanks for checking on the law, Steve. I haven't had time to do that.
Since we're talking about an Arkansas offense, KungFu might also check into getting an Arkansas CHL, which is reciprocal with Texas. It doesn't have the widespread acceptance of TX or FL, but it's a start.
This should clearify right to expunction in Texas. However, I think the real question in this thread is whether Texas and Arkansas have the same path to expunction.
Art. 55.01. Right to Expunction, Texas Code of Criminal Procedure
(a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:
(1) the person is tried for the offense for which the person was arrested and is:
(A) acquitted by the trial court, except as provided by Subsection (c) of this section; or
(B) convicted and subsequently pardoned; or
(2) each of the following conditions exist:
(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:
(i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or
(ii) the court finds that the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;
(B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor; and (C) the person has not been convicted of a felony in the five years preceding the date of the arrest.
(b) Except as provided by Subsection (c) of this section, a district court may expunge all records and files relating to the
arrest of a person who has been arrested for commission of a felony or misdemeanor under the procedure established under Article 55.02 of this code if the person is:
(1) tried for the offense for which the person was arrested;
(2) convicted of the offense; and
(3) acquitted by the court of criminal appeals.
(c) A court may not order the expunction of records and files relating to an arrest for an offense for which a person is subsequently acquitted, whether by the trial court or the court of criminal appeals, if the offense for which the person was acquitted arose out of a criminal episode, as defined by Section 3.01, Penal Code, and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.
(d) A person is entitled to have any information that identifies the person, including the person's name, address, date of birth, driver's license number, and social security number, contained in records and files relating to the arrest of another person expunged if:
(1) the information identifying the person asserting the entitlement to expunction was falsely given by the person arrested as the arrested person's identifying information without the consent of the person asserting the entitlement; and
(2) the only reason for the information identifying the person asserting the entitlement being contained in the arrest records and files of the person arrested is that the information was falsely given by the person arrested as the arrested person's identifying information.
Art. 55.03. Effect of Expunction, Texas Code of Criminal Procedure
When the order of expunction is final:
(1) the release, dissemination, or use of the expunged records and files for any purpose is prohibited;
(2) except as provided in Subdivision 3 of this article, the person arrested may deny the occurrence of the arrest and the existence of the expunction order; and
(3) the person arrested or any other person, when questioned under oath in a criminal proceeding about an arrest for which the records have been expunged, may state only that the matter in question has been expunged.
Texas CHL Instructor
Paralegal Division-State Bar Of Texas
NREMT
srothstein wrote:If it helps to understand this, I was just looking at the Arkansas statutes on Findlaw. Their code section 16-90-1201 says that a felony for drug possession will be expunged BUT that the effect will be as in the case for sex offenses (section 16-90-901). In the referred section, it says the record is sealed and isolated but not physically destroyed.
And in the next section (16-90-902), it says this:
(a) An individual whose record has been expunged in accordance with the procedures established by this subchapter shall have all privileges and rights restored and shall be completely exonerated, and the record which has been expunged shall not affect any of his or her civil rights or liberties unless otherwise specifically provided by law.
(b) Upon the entry of the uniform order to seal records of an individual, the individual's underlying conduct shall be deemed as a matter of law never to have occurred, and the individual may state that no such conduct ever occurred and that no such records exist.
As I read it, Kungfu may have a good case to go to court against DPS, despite the 30 day limit. But I would simply not tell Utah or Florida about the incident, if I understand it correctly.
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...
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?
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 thought I had put this whole thing behind me years ago...
"Discontent is the first step in the progress of a man or a nation"
- an uncommonly wise fortune cookie
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.
Ahm jus' a Southern boy trapped in a Yankee's body
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.
But then, IANAL myself, so I tend to be logical.
As frankie_the_yankee and many others have said . . . GET A LAWYER.
Original CHL: 2000: 56 day turnaround
1st renewal, 2004: 34 days
2nd renewal, 2008: 81 days
3rd renewal, 2013: 12 days
