TX CHL Applicant / Arrest Records Ponderment

[Shimitup]

At long last I'm taking CHL class and in reviewing the applicant form I'm reminded of an incident long ago (35 years ago in fact) in my rather stupid teens, of an arrest for criminal mischief in which the complainant dropped the charge. I was reminded of this also 15 yrs ago when I purchased a S&W 6906 and upon commencement of the background check and waiting period I was informed of my denial and arrest record. At that time in my life I had completely forgotten the incident. To resolve the problem I endeavored then to go through the steps to expunge the record. That done I went and picked up my pistol. Current dilemma, the applicant form of course requires listing of ANY arrest regardless of age or outcome. I assume this is irrelevant to expunging the record, after all I was arrested. If the courts have done what they are supposed to do, no record will be found. Of course I should list it to comply with the law to demonstrate I'm not hiding anything, but how would they know? It just complicates things for me to be absolutely certain I'm complying for the following reason.

(Quoted from form 78C)

"SUPPLEMENTAL INFORMATION (REQUIRED WITH THIS APPLICATION)
I understand that I must submit certified copies of all judgments and charging instruments from the courts or a record search indicating no record was found, for each Criminal History item listed above. Failure to report an arrest or conviction may result in denial or revocation of a license based solely on the material misstatement of fact in this application.

Yes
No"

Seems kind of silly doesn't it. I'm going to to tell them about an arrest record for which I will have to go run a criminal background check on myself showing no record found, they of course will run the same background check to find no record. So now they have a record of my arrest through my admission on the application form. GO FIGURE! Perhaps one of the most irritating things is that it's an embarrassing event in my life that I'd rather forget about.

Feedback appreciated.

 

[TexasRifleman]

Feedback appreciated.

I agree with you that it does sound silly.

I'm not a lawyer but as I understand it you may truthfully answer "never arrested" if there was an expungement ordered. Actual law posted below.

Not sure if the application would be considered "under oath" but it doesn't appear to be. Might be worth a call to a lawyer.

http://www.statutes.legis.state.tx.us/Docs/CR/htm/CR.55.htm

Art. 55.03. EFFECT OF EXPUNCTION. When the order of expunction is final:
(1) the release, maintenance, 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.

 

[paul]

I do not recall having to jump through hoops regarding my arrest and conviction for misdemeanor carrying a weapon, which occurred prior to the institution of CHL laws in Texas...
I got my carry license when it became available, with renewal (2-3 times?) since...

I do enjoy the fact that I was carted off to the station for having a pistol in my car 20 years ago, and now anybody not prohibited may carry in their auto, CHL, or no...

p

 

[sleepyone]

You need to list any arrest no matter how long ago and even if you were never indicted and the charge was dropped. I was arrested in 1986 for a DWI and the charge was dropped; yet the arrest still appears on my record. I discovered in the process of applying for my CHL last year. I stated on the app that I was not sure if it was even on my record, but I wanted to mention it so as not to appear to be hiding it. Sure enough the arrest placed my app in a hold status. My wife received her CHL and three weeks later I still had not. I called the CHL division of the Texas DPS and the nice lady said I was on her list to call. After asking me a few questions, she said everything was good to go and I received it within two weeks. So the point of all this is you should mention any arrest no matter long ago or how trivial it may have been. THEY know everything!

 

[rbernie]

I was arrested in 1986 for a DWI and the charge was dropped; yet the arrest still appears on my record.

That was because you did not have the record expunged. If you do so, then it will no longer appear and as I understand things it need not be disclosed.

 

[sleepyone]

I thought I remember on the app that it asks if you have ever been arrested. I don't recall it saying only lists arrests that have not been removed from your record. Could be wrong. It would not be the first time!

 

[sleepyone]

From the CHL-78C form:

"Indicate all criminal history information, regardless of the amount of time that has passed or in which state the offense occurred. Include juvenile cases, any assaults of any level and disposition in court, all charges that were dismissed, deferred adjudications and all pending charges, whether or not you believe these are disqualifying."

Does not say anything about expunged records. I believe it should because like you said you will be bringing something to their attention that does not exist. That being said, if it were me, I would list any arrest just because I would not ANYTHING to prevent me from getting my CHL. I love having mine and dread the day if I ever have to relinquish it do to old age. Better safe than sorry. I don't believe you will have any problem getting the CHL.

 

[Owen Sparks]

Arrested or convicted?
Are you not concidered innocent until proven guilty in a court of law? I know a preacher who was arrested and then quickly released in a case of mistaken identity. Does this disqualify him from a CHL?

 

[TexasRifleman]

Does this disqualify him from a CHL?

No but the way the CHL administrative rules work DPS is required to ask and verify if any arrest record exists. That's why I don't think an expungement is something to mention because the records are sealed even to DPS researchers for a CHL.

 

[Owen Sparks]

Why do you even need to tell them that you have been arrested? An arrest is NOT a conviction. The OP said that the charges against him were dropped so he has not been convicted of any crime.

You can be arrested on suspicion of a crime simply because you look like someone else.
If you are arrested the authorities have 48 hours to charge you with a crime or they must release you. Even if you are charged with a crime, your accuser must PROVE that you are guilty or the court will release you. up untill that point you are presumed innocent. This is how our system of justice is SUPPOSED to work. An arrest record is not proof of guilt. It just means that someone suspected you of doing something but could not go on to prove it, therefore you are still concidered innocent.

 

[sleepyone]

the reading of the CHL-78C form plainly states ALL arrests need to be listed regardless of the outcome. An expunged arrest is the only gray area, but I would hate for it to show up somewhere, somehow and not have listed it.

 

[ldsgeek]

I have some experience in this area, having had a conviction expunged in New Hampshire. I was told that it now officially never happened and if I am asked if I was ever arrested to answer no.

 

[TexasRifleman]

Why do you even need to tell them that you have been arrested? An arrest is NOT a conviction. The OP said that the charges against him were dropped so he has not been convicted of any crime.

Because the silliness of the Texas CHL administrative rules require DPS to ask the question. It's not a disqualifier on its own, but they have to ask.

An expunged arrest is the only gray area, but I would hate for it to show up somewhere, somehow and not have listed it.

Again, I don't believe the expungement is a grey area since the Code of Criminal Procedure outweighs DPS administrative rules and CP55 says expungements never happened except when you are under oath testifying in a criminal case.

 

[taxiflyr]

The arrest may

Not show on your records but the ones they see Will show, wheather they use it in there decision is you will not know
I had auotmatic expungment that i did not put down and the police said they see everything

 

[snubbies]

Arrests

I believe the Rules of Criminal Procedure do not rise to the level of a statute. If the agency requires answering the arrest question in the affirmative and you don't then you may be rejected for failure to fully disclose. This would violate the adminstrative requirement which may require rejection.

 

[TexasRifleman]

I believe the Rules of Criminal Procedure do not rise to the level of a statute. If the agency requires answering the arrest question in the affirmative and you don't then you may be rejected for failure to fully disclose. This would violate the adminstrative requirement which may require rejection.

Since expungements are not public record how will they ever reject someone for failure to disclose? It's not possible for the agency accepting the applications to ever be aware of the expungements. This kind of stuff is exactly why expungements exist in the first place.

If the OP is uncertain he should ask his attorney but I wouldn't hesitate to leave an expunged incident off of any paperwork.

The Texas CHL administrative stuff is in TX Government Code 411.172. This covers eligibility. Nowhere in there does it say anything about arrests, and being arrested is not a disqualifying event on its own.

GC 411.175 says of the application itself:

(b) An applicant must provide on the application a statement of the applicant's:
(1) full name and place and date of birth; (2) race and sex; (3) residence and business addresses for the preceding five
years; (4) hair and eye color; (5) height and weight; (6)driver's license number or identification certificate number is-
sued by the department; (7) criminal history record information of the type maintained by
the department under this chapter including a list of offenses for which the applicant was arrested, charged, or under an information or indict- ment and the disposition of the offenses; and
(8) history, if any, of treatment received by, commitment to, or res- idence in:
(A) a drug or alcohol treatment center licensed to provide drug or alcohol treatment under the laws of this state or another state, but only if the treatment, commitment, or residence occurred during the preceding five years; or
(B) a psychiatric hospital.

Since expunged records are not "of the type maintained by the department" (because they are sealed and off limits by a judges order) how can you ever connect it to being a requirement.

Just can't see what the problem is here.

 

[DCR]

This has long been a beef of mine with the law enforcement community. As has been previously pointed out, arrests are no more than accusations, not convictions. Accordingly, no weight should be given to an arrest, and law enforcement should not rely on an arrest record for any purpose whatsoever - it's only the convictions that count.

Problem is, to my knowledge it's official department policy in virtually every LE agency in the country- federal, state and local - to look into a person's arrest record and base all decisions about a person on it. From day one LEO's are taught to ask individuals if they've ever been arrested before, rather than if they've ever been convicted of a crime. Most LE agencies' policy is for officers to base the decision whether to arrest or cite and release individuals depending on whether that person has ever been arrested before. Thus, even if someone was arrested but never charged, arrested but the charges were dropped, or arrested and found not guilty, an LEO is going to lean toward arresting them rather than citing and releasing based on whether that person has only been accused - not necessarily found guilty - of a crime in the past.

My $.02: the OP's arrest is on file somewhere, quite likely at the federal level (local LE agencies all send arrest and fingerprint data to the feds), and denying a prior arrest, even though there was no conviction, will trip up the application. Unfortunately, when he explains it in the application, he's creating yet another record of the arrest. It's quite a catch-22, all because of LE's misguided reliance on arrests as opposed to convictions.

 

[ChefKristian]

The only reason why the DPS wants you to list ANY arrest is so that it does not delay your application. Regardless of the outcome. If they happen to find something that you did not disclose, they will investigate it. Which means more time spent... Your best bet would be to put as much information as you can. Since criminal mischief is not a disqualifying offense for the CHL and it has been longer than 5 years since as well as the charges being dropped, then you should be fine...

I just recently spent a lot of time and research to obtain my own CHL, since I have a couple of blips on my record from a misspent youth...

 

[orionengnr]

This has long been a beef of mine with the law enforcement community. As has been previously pointed out, arrests are no more than accusations, not convictions. Accordingly, no weight should be given to an arrest, and law enforcement should not rely on an arrest record for any purpose whatsoever - it's only the convictions that count.

Problem is, to my knowledge it's official department policy in virtually every LE agency in the country- federal, state and local - to look into a person's arrest record and base all decisions about a person on it. From day one LEO's are taught to ask individuals if they've ever been arrested before, rather than if they've ever been convicted of a crime. Most LE agencies' policy is for officers to base the decision whether to arrest or cite and release individuals depending on whether that person has ever been arrested before. Thus, even if someone was arrested but never charged, arrested but the charges were dropped, or arrested and found not guilty, an LEO is going to lean toward arresting them rather than citing and releasing based on whether that person has only been accused - not necessarily found guilty - of a crime in the past.

Hmmm...given the number of plea bargains given these days, combined with some of the travesties I have seen in jury trials (let's just start with OJ) I would counter that there are a lot of "guilty but never convicted" people out there.

So (within reason) I would tend to give more credence to the "arrest record" than I give the "conviction record".

Just my .02, and I'm not a lawyer or an LEO, but have served on a jury on several occasions. Mostly to my disgust and chagrin.

 

[UpTheIrons]

The only reason why the DPS wants you to list ANY arrest is so that it does not delay your application. Regardless of the outcome. If they happen to find something that you did not disclose, they will investigate it.

THIS.

Was this anywhere other than Harris County? If so, take a friendly trip to the courthouse and see what they say about your record. Or, if you know someone who knows the "people in the know", have them ask about it.

My wife had a bench warrant issued for a stupid traffic ticket that never should have been given. She was all knotted up that this incident (which happened 20+ years ago) would show up on her background check. Had a friend who knew someone in the department look it up to be sure, and there was no record of it. Of course, she was never arrested, as the stupid ticket was dealt with and removed (whatever the technical term is for a ticket that suddenly no longer exists), so she didn't have anything to worry about anyway. She didn't list it, and her license never hit a hiccup in the application process.

In any event, even if it was expunged, list it anyway - better to list it and them not find anything than not list it and you get delayed.

 

[TexasRifleman]

In any event, even if it was expunged, list it anyway - better to list it and them not find anything than not list it and you get delayed

There is a Catch 22 in that however. If you list it you are required to get something showing the disposition. You will not be able to get anything showing the disposition since the records are sealed by court order.

So, you've told them about it and can't give them any documentation about it. Then what?

Talk about a delay.....

 

[Shimitup]

Many thoughtful comments and I appreciate them all very much. A lot to consider. It's a hassle to go get a search done although it wouldn't hurt just to verify that all's OK. I have a couple of friends that just retired from HPD last year after 30 years of service, One a patrol officer, the other finished as a lieutenant in homicide, I'm sure they've seen their share of arrest records. I'm going to pick their brains and get their take on the situation. In the mean time as I'm tired of the legal poo I just loaded some 200gr SWC for my Randall for the range part of the test. Good for my aging eyes to see the holes, it kind of keeps me on track.

P.S.
TexasRifleman, they do state that a search showing "no record found" is acceptable, so at least I'll have that should I decide to present it.

Thanks again.

 

[TexasRifleman]

Well it was a very interesting question, please let us know what you decide to do and how it goes would you?

 

[Shimitup]

I will indeed post a follow up down the road.

Take Care.