by Houston Criminal Defense Attorney

Collateral Consequences of Criminal Convictions

Posted By: ADAMO / ADAMO

A criminal conviction can follow you around like luggage.

So before you enter into a plea of guilty you need to understand the potential consequences of doing so.  If you are charged with a drug, sex, or violent offense you need to be on high alert.

I. Possible Financial Consequences

1. Loss of Employment

FELONY CONVICTIONS and convictions for CRIMES OF MORAL TURPITUDE* can lead to the automatic revocation of and ineligibility for a wide variety of federal and state licenses.  Once upon a time, one could enter a plea of deferred adjudication and be assured the offense would never be used against them.  This has since changed, and deferreds are routinely used as disqualifications to employment.

To see a list of potential Texas licenses that may be impacted click here.

*A Crime of Moral Turpitude includes, but is not limited to: Issuance of a bad check with the intent to defraud; prostitution; theft; swindling; false report to police officer; assault by a man against a woman; indecent exposure; bigamy by a lawyer; failure to identify; delivery of a controlled substance; violation of a protective order involving family violence; failure to stop and render aid (sometimes).

2. Loss of Funding and Assistance

A. Education Funding

i. Federal Loans/Grants

• Federal education grants are unavailable to those incarcerated in federal or state penal institutions (self-explanatory).  A conviction for possession or sale of a controlled substance can make a person temporarily or permanently ineligible for federal loans or grants under the Drug Free Student Loans Act of 1998.

ii. State Loans/Grants

• Similarly, Tex. Ed. Code §54.633 states one who commits a felony or class A misdemeanor, or an offense under the Texas Controlled Substances Act, forfeits a prepaid higher education scholarship.  This includes offenses of possession of marijuana, possession or delivery of drug paraphernalia, and falsification of drug test results.  Thus, even a minor Class C misdemeanor offense (i.e. drug paraphernalia) may result in the loss of education funding.
• Many schools have adopted “zero tolerance” policies covering potential consequences for any type of criminal offense occuring both on and off campus grounds.  Check your schools disciplinary code for additional information.

B. Federally Funded Assistance Programs

• Lifetime ban on food stamps and federally funded public assistance for felony drug convictions. 21 USC 862a.
• Mandatory ineligibility for federal health care benefits for federal distribution convictions. 42 USC 1320a-7.
• Federal grant, license contracts, and other benefits are restricted for felony drug convictions.  21 USC 862.
• Exclusion of federal subsidized or funded housing for drug offenders.  42 USC 1437(1)(b).

C. Asset Forfeiture

• Asset forfeiture is a possibility in both state and federal courts.  Your home, business, automobiles, and “cash stash” can all become property of the government.  Asset forfeiture typically applies in narcotic cases, but if you are charged with a Felony DWI your vehicle may be forfeited.  In order for the government to successfully become owners of your property they must prove, generally, that the asset is “connected to” the charged offense or criminal activity.

D. Surcharges (paid to keep your license)

• Certain convictions result in license suspensions and surcharges.
  • DWI – 1st offense = $1,000 per year for 3 years;
  • DWI – 2nd offense = $1500 per year for 3 years;
  • DWI – BAC > 0.16 = $2000 per year for 3 years;
  • Driving with Invalid License = $250 per year for 3 years.

II.  Possible Rights and Privilege Consequences

A. Possession of Firearms

i. Texas Law

• A convicted felon is prohibited from possessing a firearm.  Tex. Pen. Code §46.04.  This includes an individual placed on probation, unless their “rights have been restored” under Tex. Code Crim. Proc. art. 42.12 §20 where the court sets aside the veridic or permits the defendant to withdraw the plea and dismisses the complaint.
• A conviction of misdemeanor family violence under Tex. Pen. Code §22.01, prohibits a person from possessing a firearm before the fifth anniversary of the later of: (1) the release from confinement or (2) the date of discharge from probation.  Tex. Pen. Code 46.04(b).
• A conviction will affect a person’s ability to obtain a concealed handgun license (CHL).  Tex. Gov. Code § 411.172.
• Texas law allows a convicted felon to possess a gun at his/her residence after five years has passed since the release from confinement or community supervision, parole or mandatory supervision, whichever date is later.  Tex. Pen. Code §46.04.

But…

In Texas you must pay attention to federal laws too.  Courts have ruled, if a state law has any exception to the restoration of rights regarding firearms (and Texas does under Tex. Code Crim. Proc. art. 42.12 §20) then the felony conviction prohibits one from possessing, transporting, etc. firearms and ammunition.  524 U.S. 308.  See also U.S. v. Daugherty, 264 F3d 513 (5th Cir. 2001) (where the court affirmed the conviction of felon in possession who had successfully completed probation).

ii. Federal Law

• A conviction for an offense carrying a maximum punishment of more than one year in prison prohibits the person from possessing, shipping, receiving, or transporting a firearm or ammunition.  18 USC 922(g).
• If a person is has been placed on deferred adjudication or is still under indictment they are prohibited from acquiring firearms or ammunition.
• A person convicted of misdemeanor domestic violence is prohibited from possessing, shipping, receiving, or transporting a firearm.  18 USC 922(g)(9).

B. Driver’s License Restrictions

Graffiti	Discretionary one year suspension.
Racing (under 18 years of age)	Mandatory one year suspension
Theft of Motor Fuel	180 days for 1st offense;1 year for 2nd offense
Furnishing Alcohol to a Minor	180 days for 1st offense;1 year for 2nd offense
Possession of Fake I.D.; Allowing another to use one’s Driver’s License; Falsifying information on an application for a driver’s license; Using a driver’s license to represent one is over 21 when they are under 21	90 days – 1 year
Criminally Negligent Homicide (with a motor vehicle); Evading arrest; Intoxication assault; DWI with Child Passenger; Intoxication manslaughter; Any State Jail Felony offense with a motor vehicle involving personal injury or death	1 year suspension
Alcohol/Drugs and Minors: DWI, Minor (under 21); Purchase or attempt to purchase alcohol by minor; Drug offense under the Tex. Controlled Substance Act	1 year suspension (with exceptions);30 days – 1st offense; 60 days – 2nd offense; 180 days – 3rd offense; 180 days – 1 year
Drug offense under the Tex. Controlled Substance Act (adult)	180 days

C. Loss of Passport Privileges

• An issued passport may be revoked, even for misdemeanor drug offense, if the government finds that the criminal offense should give rise to such disqualifications.  22 USC 2714(b)(2).

D. Civil Rights

1. Voting: a convicted felon may not vote in a public election.  A conviction is considered final whether the sentence is imposed immediately or suspended (i.e. probation).   A convictions is not final if it is on appeal.  This ineligibility lasts until the offender has been “…fully discharged…or completed a period of probation ordered by the court.”  Tex. Election Code §11.002(4).

2. Public Office:  A convicted felon may not run for, or be appointed to, public elective office in Texas.  Probation counts as a conviction.  Except in limited circumstances (i.e. pardon), the offender is barred from life.

3. Jury Service:  A person convicted of, or currently charged with a misdemeanor theft may not serve on a jury.  This may apply to one serving a deferred adjudication.

E. Divorce/Child Custody

1. Evidence of abusive physical force against a spouse, child’s parent, or any person younger than 18 years of age and within two (2) years of a divorce being filed can be considered in regard to sole or joint conservatorship.  Tex. Family Code §153.004.

2. Evidence of a history or pattern of physical or sexual abuse may be considered by the court in awarding joint managing conservatorship (JMC).  A finding of such removes the presumption that the appointment of parents as JMC’s is in the best interest of the child.

3. The court may not allow access to a child if it is shown by a preponderance of evidence there is a history or pattern of family violence during the two (2) years preceding the date of filing the lawsuit.

4.   A conservator convicted or placed on deferred adjudication for:  indecency with a child; sexual assault, or aggravated sexual assault, is considered a material and substantial change of circumstances sufficient to justify a temporary order and modification of an existing order regarding conservatorship or possession and access to a child.  Tex. Family Code §156.104(a).

5.  A party may obtain a protective order if there are facts and circumstances of family violence.

F. Sex Offender Registration:  results in the imposition of significant restrictions and requirements, including losing your right to privacy in             electronic communication or data.

III. Immigration Consequences

if you are not a citizen of the United States you should consult an immigration attorney while your criminal case is pending.  Your criminal defense attorney may be able to refer you to a qualified immigration attorney.

1. Deportation/Removal

• You are not a U.S. citizen; AND
  • you commit a crime of moral turpitude;
    • with a punishment range of at least one year; AND
    • the crime is committed within five (5) years after admission to the United States or you commit two or more crimes that did not arise out of a single scheme of criminal misconduct any time after admission to the United States.

OR

• you commit an “aggravated felony”.
  • For an extensive list of what constitutes an aggravated felony see §101(a)(43) of the Immigration and Nationality Act (INA).
    • Examples include such crimes as murder; rape; drug or firearms trafficking; sexual abuse of a minor; child pornography; money laundering; fraud; tax evasion greater than $10,000; theft or violent crime with a sentence order of a least one year; treason; perjury with a sentence of at least one year; etc.
  • See also §247 of the INA for additional deportable offenses.

• Under 101(a)(48)(A) of the INA the definition of a conviction includes deferred adjudication.

The importance of knowing these issues can not be understated.  Too often we receive phone calls from individuals unable to escape the cloud of previous mistakes.  Make sure you are under the guidance of a qualified attorney.  BE PREPARED.

 

by Houston Criminal Defense Attorney

Cleaning your Record.

POSTED BY: ADAMO / ADAMO

In our line of work there is no greater satisfaction than hearing a prosecutor say a case has been “dismissed” or a jury saying “not guilty”.

 

The battle however does not end in the courtroom.  A dismissal or not guilty is only the first part of clearing your name.

In this “age of information” a non-expunged dismissal or not guilty is no better than a conviction for purposes of a person’s record.  Failing to take advantage of erasing or sealing your records will result in unwanted explanations with employers, landlords, cops, and anyone with access to a computer.

 

So let’s break it down.

WHAT IS A “CRIMINAL RECORD?

A record is the collection of public information.  A criminal record will show the cause number of your case/s, the offense charged, your name, and the disposition (i.e. final result).  See Example:

Case (Cause)Number	Style	File Date	Court	Status	Type of Action/Offense
1313131313 CRIMINAL-Complete (C)	The State of Texas vs. Walter White (SPN: XXXXXXX) (DOB: 00/00/0000	00/00/00	17	Defendant:Disposed (D)Disposition:Dismissed (DISM)	OFFENSE CHARGED

WHO MAINTAINS THE RECORDS?

The Department of Public Safety (DPS) is the “hub” for all criminal history information collected in the state of Texas.  Arrests and case related information are reported to the Texas Crime Information center maintained by DPS.  Additionally, either the original reporting agency or DPS will pass along the information to the National Crime Information Center overseen by the FBI.

WHO HAS ACCESS TO THE RECORDS?

These records are available to the general public via open records requests and online portals of court record information (i.e. District Clerk Websites).  The records are sold to private vendors of criminal history record information, private background check companies, mug-shot websites and anyone else willing to spend a little money.  Officers and district attorneys have access to this information as well.

IS AN EXPUNCTION AND NON-DISCLOSURE THE SAME?

This will be explained in greater detail below.  The only consistency is they are both remedies limiting access to criminal history/record information.

IS THERE ANYTHING I CAN DO TO ASSIST?

Obtain your secure criminal history from DPS.  This will help us to identify your eligibility for either an expunction or non-disclosure.

Use this link to obtain your criminal history: https://records.txdps.state.tx.us/DpsWebsite/CriminalHistory/About.aspx

EXPUNCTION

OKAY, I GET IT.  AM I ELIGIBLE FOR AN EXPUNCTION?

Expunctions are governed by Tex. Code Crim Proc. Art. 55.01.

Generally…

YOU ARE ELIGIBLE IF:	YOU ARE NOT ELIGIBLE IF:
Acquittal (i.e. not guilty verdict).	You received court ordered community supervision under Tex. Code Crim. Proc. Art. 42.12 (i.e. deferred adjudication or probation), unless the offense was a Class C Misdemeanor.
	If you have been acquitted of an offense but convicted or remain subject to prosecution for at least one other offense.  Also known as the criminal episode exception.
Unfiled Cases.  If you were arrested but no charges have been filed.	The records relate to an arrest/warrant for a probation violation.
Successful Completion of Pretrial Intervention or Diversion.	The records relate to the suspension of a driver’s license.
Posthumous expunction.  Where a close relative of the deceased where the defendant was acquitted, pardoned, or found actually innocent.	The records of financial transactions.
	Bail – Jumping.
Acquitted on appeal by the court of appeals.
*The Statute of Limitations has run.

PRACTICE TIP:  Typically you are not eligible for an expunction until the statute of limitations has run, however more and more agencies are not opposing expunctions filed before that time.  This is especially true with misdemeanor offenses.

I AM ELIGIBLE, HOW DOES THE EXPUNCTION PROCESS WORK?

Briefly, a petition for expunction is drafted and filed with the court.  The court issues a hearing date.  Any agencies in possession of records pertaining to your arrest are served and notified of the petition.  Absent an objection an Agreed Order of Expunction can be signed and filed with the court.  If a party objects a hearing will be heard.  Once signed by the judge all agencies listed in the petition are ordered to destroy their records or return the records to the court to be destroyed.  The order prohibits law enforcement and other state agencies from releasing, maintaining, disseminating or using the records for any purpose.

MY RECORDS HAVE BEEN EXPUNGED, IF I AM ASKED “HAVE I EVER BEEN ARRESTED”, HOW DO I ANSWER?

NO!  You are granted the right to say “No” to the question, have you ever been arrested or charged with crime.  You can also answer the question “Have you ever had a criminal charge expunged?” with a profound “NO”.

There is one exception.

If you are testifying under oath in a criminal proceeding.  You can not say “No”, but can say “The matter in question has been expunged”.  See Tex. Code Crim. Proc. Art. 55.03.

NON-DISCLOSURE

I AM NOT ELIGIBLE FOR AN EXPUNCTION, BUT MAY BE ELIGIBLE FOR A NON-DISCLOSURE.  WHAT IS THE DIFFERENCE?

The primary difference is an expunction is the destruction or erasing of your records.  A non-disclosure results in “sealing” your records.  With a non-disclosure your records are blocked from the public.  Law enforcement, district attorneys, certain state agencies and licensing boards still have access to the records.

I SUCCESSFULLY COMPLETED DEFERRED ADJUDICATION, AM I  ELIGIBLE FOR A NON-DISCLOSURE?

Non-Disclosures are governed by Tex. Gov’t Code Section 411.081.

Generally…

YOU ARE ELIGIBLE IF:	YOU ARE NOT ELIGIBLE IF:
You have successfully completed deferred adjudication	You have been previously convicted or placed on deferred for:-An offense requiring registration as a sex offender;-Aggravated kidnapping;-Murder, Injury to a Child, Abandoning or Endangering a Child, Violation of a Protective Order, Stalking; or-An offense involving family violence
	You have been convicted or placed on deferred adjudication for any offense (not including Class C misdemeanors) during the term you were on deferred or within certain time periods.

IT SEEMS I AM ELIGIBLE FOR A NON-DISCLOSURE.  ARE THERE WAITING PERIODS?

OFFENSE	WAITING PERIOD
Most Misdemeanors	Eligible for Non-Disclosure immediately upon successfully completing deferred adjudication.
Certain Misdemeanors:-Kidnapping and Unlawful Restraint;-Sexual Offenses;-Assaultive Offenses;-Offenses against the family;-Disorderly conduct, obstructing, harassment, interference with a 911 call;-Weapons	Eligible for Non-Disclosure TWO YEARS after successfully completing deferred adjudication.
Felonies	Eligible for Non-Disclosure FIVE YEARS after successfully completing deferred adjudication.

PRACTICE TIP:  The waiting periods apply to the offense for which you plead guilty to and were placed on deferred adjudication for, not the offense for which you were originally charged.  For example:  Walter White is arrested for Felony Drug Possession.  His attorney, Saul, negotiates a plea bargain allowing Mr. White to plead guilty to misdemeanor drug possession and receive deferred adjudication.  Upon the successful completion of deferred adjudication Mr. White is immediately eligible to non-disclose his record (as opposed to waiting five years).

HOW DOES THE PROCESS WORK?

A petition for non-disclosure is drafted and filed with the court.  A hearing is set.  If the court finds it is in the “best interest of justice” for the records to be sealed, the judge will sign the petition’s order requiring DPS to notify all law enforcement agencies, jails, other detention facilities, magistrates, courts, prosecuting attorneys, correctional facilities, central state depositories of criminal records, and other officials or agencies subject to the order of the pertinent records to be sealed.

MY RECORDS HAVE BEEN NON-DISCLOSED OR SEALED, IF I AM ASKED “HAVE I EVER BEEN ARRESTED”, HOW DO I ANSWER?

While you can not deny being arrested (as you can with an expunction), you do not have to disclose the arrest and prosecution in applications for employment.

THE BOTTOM LINE

Erasing (expunction) or sealing (non-disclosure) your records is absolutely essential to keep from reliving the day you were arrested.  A clean slate can mean the difference between having a job, obtaining a license, having a place to live, or even traveling to another country.  Take advantage of this immeasurable tool.

Case Dismissed,

Law Office of ADAMO / ADAMO