By Clarence Walker, Legal Business Writer
Editor’s Note: Recent studies by National Law Employment have showed that hundreds of thousands of American citizens are denied employment or denied a decent place to live because they have a criminal record. And in some cases a simple arrest that resulted in charges dismissed or reduced to a misdemeanor offense ( a less severe charge), have jeopardized employment future of citizens that have been rehabilitated and haven’t been in trouble with the law in several years.
The problem is so widespread in the U.S. that until many states passed laws to allow citizens with criminal history like an arrest or charge that was dismissed or if a person was acquitted of a criminal charge during trial by judge or jury, to expunge their record (if qualified) or have their criminal record sealed from public view under nondisclosure law if the person successfully completed a deferred adjudication probation term. Houston, Harris County Texas, is a place where a person with a felony criminal record does not qualify to work as a process server, serving court papers.
How often do job seekers with prior criminal history run across the following ADs:
(1) “No Exceptions! … No Misdemeanors Anddenied employment or denied a decent place to live all because they have a criminal record./Or Felonies Of Any Type In Your Background.”
(2) “Do Not Apply If You Have Any Prior Misdemeanors/Felonies.”
The aforementioned ominous words can often come back to haunt those who need work but have a prior criminal history.
Texas is one leading states responsible for implementing new laws to afford ex-offenders a chance to wipe certain charges off one’s record. Ex-felons do not qualify for expunction nor disclosure, only a pardon by a sitting governor. An expunction in Texas falls under Article 55.01(a) of the Texas Code of Criminal Procedure [Justia]. Non-disclosure falls under 411.02 of Texas Code And Procedures.
“I predicted 20 years ago that people who once got deferred adjudication probation would someday benefit from it further down the road,” says veteran criminal defense attorney Cheryl Irvin, of Irvin Law Firm based in Houston Texas (Harris County). “So now we have Texas nondisclosure law and the expunction as well,” Irvin said.
Both laws give a person another chance in life to not have a criminal history in their background,” Irvin articulated.
Imagine if you got into trouble with the law several years ago, and charged with a felony or misdemeanor crime. And assume your misfortune caused you to be on probation or non-supervision suspended sentence, and subsequently, your good behavior allowed you to successfully complete terms of a probated or suspended sentence. But later in life you apply for a well-paid job with good benefits, a career job that you qualify for, yet the employer or hiring manager call you into an office, close the door, and look at you with a dejected look, and with hesitation, say; “you meet our qualifications for the job but sorry we cannot hire you because of your criminal record.”
So there it goes. You just lost a job opportunity due to not knowing the law in many states that allow you to seal your criminal history or have specific arrests and charges expunged completely off public and law enforcement records.
A prior criminal history can have a major impact on future opportunities. Employers, apartment rentals, including colleges and other educational institutions require people to disclose any criminal history on an application. In many cases except for exceptions, your criminal history, depending on the charge can prevent you from landing a job, obtaining a state license or municipal license to run a business to make a living as well as housing assistance. Or consider this heartbreaking scenario: students have graduated from law school and weren’t able to obtain a state license to practice law due to a prior criminal charge.
This article only focuses on Texas expunction/non-disclosure law, but this link lists requirements for all U.S. states.
Background checks are a booming business and so why should there be an arrest on your criminal record that can be wiped clean or at least in many cases some defendants benefit from having their records sealed. Discrimination by employers toward those with criminal records seeking employment is widespread throughout the United States.
For example, in 2006, the Equal Employment Opportunity Commission declared in an open forum that when an employer uses “blanket policy” to engage in repeat refusal to hire a person with a history of arrests or convictions, they actually violate Title VII – in part because such policies disproportionately excluded members of certain racial or ethnic groups unless an employer can show a business need for using this criteria.
Read EL v. Southeastern Pennsylvania Transportation Authority – a case which an employee was fired from his job of transporting special needs patients after the company discovered a 40-year old conviction for manslaughter/murder, a conviction which, the lawsuit argued, did not relate to transporting patients. [Leagle]
Nondisclosure / Expunction Of Criminal Records Explained
First, any expunction or nondisclosure of a criminal record does not apply to anyone convicted of a violent crime or either put on probation or served time in prison/state jail for crimes such as aggravated robbery, sexual assault, kidnapping, carjacking, arson, murder, child abuse etc.
To file an expunction or nondisclosure, a person must first consult an attorney with experience in both areas to determine if their case qualifies to have law authorities legally remove documentation of their criminal offense off police and court record systems NCIC (National Crime Information Center). Expungement of a record literally means authorities will destroy the record and it never will be available again to the public.
Are You Eligible To Have Your Criminal Record Expunged?
Expunction of a criminal record (Felony or Misdemeanor) in Texas must meet the following conditions:
- the offense was never brought to trial or there was no indictment or the indictment was dismissed or quashed. And if a person was acquitted of a crime by a judge or jury or if the prosecutor dropped a case that person is eligible to have a “single charge or charges” expunged from public records. And if a charge was reduced from a felony to a Class C misdemeanor, the Class C arising arising out of a felony is good for expunction. Further, if a grand jury indicts a person on a crime and subsequently the indictment is dismissed (if investigation completed) – this course of action qualifies for expunction under Texas law.
- Any person successfully completes a pretrial diversion program in accordance with Texas law or if an indictment is based on false information or a mistake can result in expunction. A mistake in a case where a person was charged criminally can result in the indictment being void.
- You can petition to have the record of an arrest expunged if someone used your identity to hide their true identity upon arrest.
- A person convicted in court of an offense but later acquitted on appeal unless the offense involved a “criminal episode” whereby other charges can still be prosecuted.
- A criminal record listed in a person’s name which later proves wrong.
Crimes in Texas That Don’t Qualify For Expunction Or Nondisclosure Of Record Even If Defendant Placed On Deferred Adjudication Probation.
- Any form of conviction that resulted in a straight term probation http://criminal.lawyers.com/expungements/expungement-and-record-sealing-in-your-state.htmlhttp://criminal.lawyers.com/expungements/expungement-and-record-sealing-in-your-state.html(not deferred adjudication), or defendants convicted of felonies and sent to prison.
- Aggravated Robbery, Aggravated Assault, Family Violence
- Kidnapping, Sexual Assault, Murder, Manslaughter, Child Molestation
- Most crimes involving Violence or Sex-related Offenses
- Stalking, Injury to Child or Elderly, Indecent Exposure/Sex Performance of Child, Online Solicitation Of a Minor
- Possessing Child Porn
Please note that all violent and nonviolent offense are eligible for expunction if no other prosecutable charges derive from the episode considered for expunction.
– If a person do not qualify for expunction due to nature of offense, charge or conviction, it is possible to win a non-disclosure order. Although a non-disclosure order does not totally destroy a documented offense available to the public,http://criminal.lawyers.com/expungements/expungement-and-record-sealing-in-your-state.html the person still benefits from having a record or records sealed from public view.
Below is a list of misdemeanor crimes eligible for non-disclosure.
Misdemeanors Crimes in Texas Eligible For Non-Disclosure (Record Sealed)
- §42.08: Abuse of a Corpse
- §25.09: Advertising for Placement of a Child
- §22.08: Aiding Suicide
- §22.01: Assault
- §25.01: Bigamy
- §42.092: Cruelty to Animals
- §22.05: Deadly Conduct
- §42.11: Destruction of a Flag
- §42.12: Discharge of a Firearm
- §42.01: Disorderly Conduct
- §42.05: Disrupting Meeting or Procession
- §42.10: Dog Fighting
- §42.06: False Alarm or Report
- §42.07: Harassment
- §25.06: Harboring Runaway Child
- §46.06: Hoax Bombs
- §21.08: Indecent Exposure
- §42.062: Interfering with Emergency Phone Call
- §22.10: Leaving a Child in a Vehicle
- §46.13: Making a Firearm Accessible to a Child
- §42.03: Obstructing a Highway or Other Passageway
- §46.05: Possession, Manufacture, Repair or Sale of Switchblade Knife or Brass Knuckles
- §21.07: Public Lewdness
- §42.02: Riot
- §42.061: Silent or Abusive 911 Calls
- §22.07: Terroristic Threat
- §46.035: Unlawful Carrying of Gun by License Holder
- §46.02: Unlawful Carrying Weapons
- §46.04: Unlawful possession of Firearm
- §22.02: Unlawful Restraint
- §46.06: Unlawful Transfer of Certain Weapons
- §25.071: Violation of Protective Order Preventing Offense Caused by Bias or Prejudice
Texas Felony Criminal Offenses Not Eligible For Non-Disclosure
- §21.11: Indecency with a Child
- §22.011: Sexual Assault
- §22.021: Aggravated Sexual Assault
- §25.02: Incest
- §20.04: Aggravated Kidnapping – Burglary with Intent to Commit Any Above Offenses
- §43.03: Compelling Prostitution
- §43.25: Sexual Performance by a Child
- §43.26: Possession or Promotion of Child Pornography – Unlawful Restraint, Kidnapping, or Restraint of a Child Less than 17 Years Old – Attempt, Conspiracy or Solicitation to Commit Any of the Above Offenses
- §19.03: Capital Murder
- §19.02: Murder
- §22.04: Injury to a Child, Elderly or Disabled Individual
- §22.041: Abandoning or Endangering a Child
- §25.07: Violation of Protective Order or Magistrate’s Order
- §42.072: Stalking – Any Offense Involving Family Violence
Contact an attorney in your state with experience in handling expunctions or nondisclosures.
“Why should people be saddled with a conviction for the rest of their lives and not be able to progress and move forward,” attorney Cheryl Irvin said. PS: Any legal information is not a substitute for advice from an attorney. As laws are changing frequently, you may wish to speak to a criminal attorney for best results.