Expert: Dan Haynes - 5/23/2011

Question
QUESTION: In Texas: A person with Aggravated Assault with a Deadly Weapon receives Deferred Adjudication (13 years ago), but subsequently qualified for an order of non-disclosure & had the case is SEALED, does this person qualify to receive a CHL (Does this fact alone disqualify an individual from receiving their CHL?)

ANSWER: Dale,

Thanks for inquiring.

If your record is sealed you most likely will qualify for a CHL. If not the charges still appear on the background check and you would need them expunged or pardoned.

Best regards,

Dan

---------- FOLLOW-UP ----------

QUESTION: I must admit, I like your answer best so far. I've posed this question to so many attorney's whom I believe just sort of 'guess' at the answer based on common sense.

I think Aggravated Assault with a Deadly Weapon makes a person go “UH, HELLOOO…..this guy is dangerous”  Which makes perfect sense until you look at the letter of the law. In fact, I could easily argue the fact that based on the wording on the CHL application alone, the answer to “Have you ever been arrested or charged with a crime? (Regardless if pending, dismissed, committed as a juvenile, was long ago OR was in another state.)

#1- The actual statute for a person whose history has been sealed (found here http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.411.htm) says the following:
A person whose criminal history record information has been sealed under this section is not required in any application for employment, information, or licensing to state that the person has been the subject of any criminal proceeding related to the information that is the subject of an order issued under this section.

#2-There is clarification to the question of “Have you ever been arrested or charged with a crime” and that clarification is “Regardless if pending, dismissed”  --  The outcome of my case is not pending or dismissed, it is sealed, and as such the wording could easily say something like “regardless of the outcome”

My problem is that I CANNOT, for the life of me, figure out where all these lawyers are coming up with “if you’ve ever been convicted of a felony assault, that’s an automatic disqualifier, regardless if it’s been sealed. REALLY? Even after completing Deferred Adjudication, a person hasn’t been “convicted”. The words convicted and deferred adjudication don’t even go together. Much less after being sealed.

So my question to you is this: Is there any possible way I may have overlooked some area that states that violent felonies, for the purpose of obtaining CHL, is an automatic disqualifier?     I tell you what, if you can show me WHERE it says that, I am going to write you one hell of a review.

Wording is EVERYTHING when reading the law….we all know that.

Thanks in Advance,
Dale

Answer
Dale,

I found these questions listed on a Florida CHL application form.

Have you been convicted of a felony as described in Section 790.23, Florida Statutes?

Have you had adjudication of guilt withheld on any felony?
Yes   No

IMHO there would be similar questions on any CHL application. If you answer yes to one or both of these two question, you most likely will be denied for a CHL.

Best regards,

Dan