criminal background check

A private investigator that has access to the Austin Criminal Defense Lawyer’s Listserv sent an email out a few days ago (I usually link to folks to give them some Google Juice, but in this case, I’m doing the guy a favor by not doing that):

This is quite interesting, lets you know who and what to watch out for!  Try it.

Interesting facts about your neighbors.

PLACE  YOUR ADDRESS IN AND SEE THE CRIME IN YOUR NEIGHBORHOOD

OR

ANY OTHER ADDRESS IN THE U.S.A.

Felonspy.com – You need to know who your neighbors are. Especially if they’re dangerous criminals

The email included a link to felonspy.com, which shows you certain felons living near you and what they were convicted of, when you type in your address.

I’d probably be able to claim that I’m a better person than I am had my interest not been piqued, but it’s kind of like slowing down to watch a car accident – I had to do it.

So after typing in my address, I take a look at some of the crimes felons near me have been convicted of:

  • Attempted Gang Assault in the Second Degree
  • Course of Sexual Conduct against a Child in the Second Degree
  • Attempted Arson in the First Degree
  • Attempted Manslaughter in the First Degree
  • Aggravated Assault against a Person Less than 11 Years Old

Wow! Not only is my neighborhood crawling with felons, but they are all from out of state – none of these convictions make any sense at all under Texas law. I’m about to fire off an email to the Listserv saying I doubt the veracity of this site, and while writing it, I click back again so I can list off some of the supposed convictions.

Voila. Now living dangerously close to me are folks convicted of:

  • Intimidating a Victim in the First Degree
  • Attempted Promoting a Sexual Performance by a Child
  • Unlawful Imprisonment in the First Degree
  • Aggravated Sexual Abuse in the Fourth Degree
  • Attempted Sodomy in the First Degree

Well, I’m glad all those bad guys living nearby moved out – and that it only took them 10 minutes or so to do it – but it’s a little odd that more bad guys moved in so quickly.

Just makes you wonder whether or not a credible private investigator might be able to figure out what’s going on here – even if they weren’t intimately familiar with the exact names and degrees of offenses in Texas. (If it need more explanation at this point: FelonSpy just randomly takes peoples names and ages and makes up offenses and ‘degrees’ and superimposes them over some sort of Google Map near your neck of the woods.)

By the time I had amused myself playing around with the site, several people had replied already. Someone pointed out that the site already had a listing on Snopes.com. My favorite comment came from one of the best criminal defense lawyers in Austin, Gerry Morris:

Is there a web site where I can go to make sure I don’t live next to anyone who spends time looking up information about their neighbor’s criminal histories?

Question (from an email): I have a situation that I need your help with if you don’t mind.

Here it is: I have three public intoxication charges in the past nine years. Got my first one at 21 and my last one at 29. I am 30 now.

The first one was in 1998, was arrested and put on deferred adjudication. Second one was in 2002, was arrested and put on deferred adjudication. Third one was November 2006, pretty recent. Was not arrested but put on deferred adjudication.

Of course I had fines to pay and my first one I had to attend AA meeting. I fulfilled all requirements without incident for all three. First on was in Austin, Texas….second in McKinney, Texas…third in Lake Dallas, Texas. I believe they are all class B misdemeanors correct?

I heard that when you get three then it changes to class A, is that so?

Anyway….In the last five years I have attended school and became a firefighter / Paramedic and am trying to get hired on to a Fire Department. Well, I was an idiot and got a freakin P.I. in November of 2006 and decided to stop drinking all together because it’s no good and I am ruining my chances of getting hired on anywhere.

The Fire Department is pretty strict about criminal history, even with misdemeanors and time is the only thing on my side to get hired on. Well, since I not only have three PI charges racked up but one being too recent I can’t get hired right now and it’s hurting me.

I heard of something called motion of disclosure…will this help me and is this what I need to sort of fix the problem. 

The least I could do is the most recent one…if not all of them…or even the last two. I don’t know.

What would you suggest be the best choice? I don’t lie on applications and I really don’t want to wait longer for time to pass separating me from the last charge. How much would it cost to do this? Please help me. Thanks.

Answer: One quick note, before I give a more substantive answer…

While I definitely don’t think that getting one Public Intoxication arrest makes someone an alcoholic (after all, it’s often more about your attitude than how much you’ve had to drink), I’m glad to hear that after 3 arrests and 1 ticket for PI, you’ve decided to stop drinking. 

Sounds like you either have incredibly bad luck, or quite possibly there’s an alcohol problem that needs addressing.

OK. So for the good news…Public Intoxication in Texas is a Class C misdemeanor, not a Class B, which makes quite a difference.

So, it’s ‘only’ the equivalent of a traffic ticket level offense, but, as you have found out, it can affect your employment possibilities…especially if you have a ‘history’ of PI arrests.

More good news? What you (and probably the Municipal Court prosecutors you dealt with) call ‘deferred adjudication’ for a Class C PI charge, was actually deferred disposition. That means the ‘probation’ you were on was non-reporting, the same way that you don’t check in monthly with a probation officer when you agree to take defensive driving to get your traffic ticket dismissed.

More good news? In Texas, a successfully completed deferred disposition entitles you to an expunction. Expunctions completely erase a record, whereas the Motion for Non-Disclosure that you talked about ‘mostly’ clears your record. So an expunction is better.

A quick digression based on your email before I get to the ‘bad news’…

A Public Intoxication arrest (or ticket) can be enhanced from a Class C, to a Class B misdemeanor, when you have 2 prior convictions. Again, if you successfully completed the deferred disposition, you have no prior convictions, so you aren’t in that category. But that’s what you ‘heard’ about enhancements for Texas Public Intoxication charges, and that part is true.

OK. You knew it was coming. The bad news…for you, anyway… (isn’t the cost of hiring the lawyer always the bad news?)

You can only expunge multiple arrests in Texas in one proceeding if they all happened in the same county. The petition to expunge must be filed in the county that you were arrested. 

Frankly, the majority of the costs involved in any expungement proceeding is preparing the paperwork. Personally, when I apply to erase my client’s criminal history in Austin, I charge an additional fraction of the initial cost to add multiple arrests to the petition. In other words, it doesn’t cost much more to expunge 2 arrests if they happen in the same county.

You were arrested in at least 3 different counties, so you will probably need to hire lawyers in all 3 jurisdictions to get the expunctions. Even if you hired the same lawyer for all three, it’s not just a matter of adding another few paragraphs to the expunction form to include the other cause numbers, etc. There will be separate filing fees for each County Clerk, and separate appearances for the attorney, etc.

I’ve got to end with some good news though. Sounds like your life is taking a turn in the right direction, and while it will cost some money to clear up your criminal history, you are eligible to do so, and in the long run…trust me, that’s what counts.

Someone called and asked me this today: Why did my deferred prosecution show up on a criminal background check?

They had successfully completed a Travis County Deferred Prosecution agreement for a shoplifting (theft) charge. The terms of the agreement were:

  • Complete 50 hours of community service
  • Attend a Theft/Shoplifting Class
  • Stay out of trouble for 1 year

Like all Austin Deferred Prosecution agreements, the case had been dismissed “up front”; meaning that the State dismissed the Theft charge when the agreement was signed, and came back and checked after a year to see whether the defendant had lived up to their end of the bargain.

The defendant had already turned in proof of the community service, and the certificate for completing the class, and had not gotten into any trouble.

Unfortunately for them, during a routine criminal background check by their employer, the arrest “showed up”. Why?

Because they had not gone back after the year was up and expunged the arrest.

Here’s the deal. Let’s say you were arrested in Austin and charged with [DWI, or Assault Family Violence, or Theft, etc.]

An officer with the Austin Police Department arrested you. You were booked into the Travis County Jail and turned over to the custody of the Travis County Sheriff’s Office (the folks in the brown uniforms). You were interviewed by Pre-Trial Services for a Personal Bond. You were magistrated by an Austin Municipal Court Judge.

(This next part of my hypothetical never happens, but I’m using it to prove a point…) As you are walking out the door of the jail, the prosecutor meets you at the door with a dismissal, and admits that a mistake was made: you should never have been arrested. You are free to go. You are no longer on bond. You don’t have ot go to court (or hire a lawyer).

Well…is that the end of the story? No!

All those agencies I mentioned will have a record that you were arrested in Austin, Texas on [a certain date] and charged with [whatever criminal offense]. Several more agencies, such as D.P.S., the County and/or District Attorney’s Offices, TCIC, NCIC (Texas & National Crime Information Centers) will have a that same record of your arrest in a matter of days or weeks.

Same thing when you hire a lawyer and get your case dismissed. There is still a record of your arrest. And that’s what expungement is for.

An Expunction is simply a civil lawsuit against all the government agencies that have a record of your dismissed or acquitted case, demanding that they destroy the records of the arrest.

Why is that necessary? Because, unfortunately, folks think that where there’s smoke, there’s fire. If they see that you were arrested, they very well may assume that you were guilty, even if you weren’t convicted.

Bottom Line? Getting a dismissal is not the same as “getting the arrest off your record.”

Question: 14 years ago I received a deferred adjudication for a misdemeanor.

Upon completion of my one year deferred adjudication, the case was disposed/dismissed. Because I did deferred adjudication, this means I do not have a conviction on my record. And, I’m in the process of submitting a non-disclosure of criminal records, however it has not been filed yet.

I am also in the process of completing a criminal background check for a future employer and I want to answer the questions truthfully to the question. They will be doing a background check for convictions (State or county).

There are 2 questions I must answer:

1. Have you ever been convicted of a felony or misdemeanor? To which I feel I can truthfully say "No" since I was not convicted.

2. Have you ever served time, been on probation, or currently serving a deferred adjudication? To which I also believe I can answer "No" since I did not serve time, I was not on probation as that term is defined, and I am not currently on a deferred adjudication sentence.

Because I’m worried about my background check results, I’ve run 3 separate checks, all which came back with nothing for convictions or anything else. I’ve had a police officer friend run my information through the county system where I was arrested and held, and they have no history of me being processed in the system.

Please advise if my answers to the above 2 questions are accurate.  Obviously, if the question "Have you ever been arrested" was asked, I’d have to answer "Yes". 

I don’t know if I should voluntarily offer the information that I was on deferred adjudication 14 years ago, since that was not specifically asked.  They may very well find an arrest record, but that was not asked and so I’m confused.

Answer: Some of this doesn’t actually lend itself to an easy answer, but I’m gonna give it a shot anyway.

For Question #1, “Have you ever been convicted of a Felony or Misdemeanor?” the answer is easy: No. Successful completion of deferred adjudication in Texas means you have not been convicted.

It’s Question #2 that becomes problematic. The part of the question that reads “been on probation, or currently serving a deferred adjudication” may imply that the employer thinks deferred adjudication is not probation. You yourself have characterized it as not probation “as that term is defined”

I think this is inaccurate – defendants on deferred probation in Texas are indeed covered by Article 42.12 of the Code of Criminal Procedure – the community supervision statute. (We used to formally call it probation; now it’s “community supervision”.)

And you checked in with a probation officer once a month, the same way that folks convicted and put on probation do. You were subject to random UA’s, and assigned a minimum of 24 hours of community service. You were on probation, as that term is defined. You just weren’t convicted.

The worst case scenario here is that you answer the question in the way that you believe is honest; but the prospective employer finds out about the deferred, and thinks you were intentionally lying.

Perhaps you can call the Human Resources department, if it’s a big enough company to have one, and anonymously ask how someone in your situation should answer the question.

Finally, I’m glad to see that you are applying for the Motion for Non-Disclosure, because this is the long term solution for this problem. Eventually, when that is granted, non-governmental employers won’t have access to see that you were arrested, and you won’t have to deal with this tricky situation anymore.

The answer: forever, if you don’t affirmatively do anything about it.

One of my new found pleasures in starting this blog is that I am starting to get emails from folks who find the site on the internet, and email me various questions. This one came from a guy in El Paso, who had completed Deferred Adjudication probation almost ten years ago, and was surprised that a prospective employer asked him why he had not admitted to being arrested for marijuana possession.

Why was he surprised? Well, the criminal defense lawyer he hired hadn’t fully explained the consequences of his accepting a plea bargain of deferred probation for his marijuana arrest. The lawyer had simply told him, “It will be dismissed and off your record”.

I hear this all the time from clients.  Probably at least once a week.

Well, here’s the bad news. You had a crummy lawyer, one that in my opinion committed malpractice by not fully advising you of the consequences of your plea. The lawyer wasn’t necessarily bad for advising you to take the plea; it very well may have been the best option available. But he should have let you know all the repercussions so you would have made a truly informed decision.

Yes, if you successfully complete a deferred probation in Texas, it’s “technically” true that the case is “dismissed” at the end of the probationary period, and you were never convicted. But that does not mean that it’s “off your record”, at least in the sense that the general public understands that phrase.

What clients are (rightfully) concerned about it this: “Will anyone ever be able to find out that I was arrested for this offense?” Because, let’s face it, when future employers (or family, friends, nosy neighbors, whoever) find out that you’ve been arrested, they assume that you are guilty. Where there’s smoke there’s fire, right?

Fortunately, the law in Texas now allows probationers who complete deferred adjudication to apply for a Motion for Non-Disclosure. While it’s not as good as an Expunction, which complete erases the arrest from your record, it’s still a good option. Basically, Motions for Non-Disclosure seal your criminal history in a way that allows the State to keep the record (and therefore knows about it if you are ever rearrested), but is prohibited from disseminating the information to the public.

Within today’s New York Times most emailed articles is this gem: Expunged Criminal Records Live to Tell Tales. It chronicles the difficulties folks have when facing an employer armed with a criminal background check when they have a minor offense on their record, and even when they were granted an expunction.

(R)eal expungement is becoming significantly harder to accomplish in the electronic age. Records once held only in paper form by law enforcement agencies, courts and corrections departments are now routinely digitized and sold in bulk to the private sector.

Some commercial databases now contain more than 100 million criminal records. They are updated only fitfully, and expunged records now often turn up in criminal background checks ordered by employers and landlords.

Just google “criminal background check”, and you’ll find hundreds of private companies willing to sell someone’s criminal history (for a fee, of course).

In Texas, the right to an expunction only accrues to someone who is acquitted, or whose case was dismissed. Sometimes my clients in Austin find themselves arrested for a “minor offense”, where the real punishment potentially comes not from what the judge will give them if they are convicted, but from the lifetime of explaining that DWI, Assault, Theft or Marijuana arrest on their record.

Unfortunately, the Texas Expunction statute only applies to governmental agencies, and does not reach the private companies that gathered the data between arrest and dismissal. I’ll have more soon on expunctions, and what can be done to “erase your criminal history”.

Article 55.01. RIGHT TO EXPUNCTION.

(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 ismissed or quashed because the presentment had been made because of mistake, false nformation, 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.

(a-1) Notwithstanding Subsection (a)(2)(C), a person’s conviction of a felony in the five years preceding the date of the arrest does not affect the person’s entitlement to expunction for purposes of an ex parte petition filed on behalf of the person by the director of the Department of Public Safety under Section 2(e), Article 55.02.

(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.