Background check.

[RWills]

What is the name of your state (only U.S. law)? Texas

Hello. Just joined, hope this is the right forum for this topic.

Back in 2007, my son was placed one 2 year "deferred adjudication probation" (it's this special type of offered by TX courts in a plea deal, you are "technically" not convicted, but aside from still being able to vote, hold office or serve on a jury, you are pretty much still considered a convicted felon.) for a non-violent state jail felony. He has long since completed his probation and is currently applying for a job with GM. Here's the problem: I have done 3 background checks (plus looking through the county's online records) one via the DPS (Texas department of public safety), Publicdata.com and using a paid cellphone ap called "been verified" (I do not recommend the latter of the three to those e seriously looking for criminal records). Anyway, all three (4 if you count the county's records) have came back CLEAN. DPS, the most prestigious law enforcement agency in the state (and, if im not mistaken, the primary source other companies get their data from), has NO record of his case. At first I thought the system was down, but I have checked both DPS and publicdata multiple times and can still find NO record. I've been told by a friend who is a retired policeman that there are RARE occasions where cases get lost in the system or are never properly reported.

So, how does he answer the dreaded question: "have you ever been convicted/arrested of a crime?" If he answers "yes", he may not get the ob, but if he answers "no", there is probably a 90% chance their background check will reveal the same results mine did. What do you suggest he do?

 

[Zigner]

What is the name of your state (only U.S. law)? Texas

Hello. Just joined, hope this is the right forum for this topic.

Back in 2007, my son was placed one 2 year "deferred adjudication probation" (it's this special type of offered by TX courts in a plea deal, you are "technically" not convicted, but aside from still being able to vote, hold office or serve on a jury, you are pretty much still considered a convicted felon.) for a non-violent state jail felony. He has long since completed his probation and is currently applying for a job with GM. Here's the problem: I have done 3 background checks (plus looking through the county's online records) one via the DPS (Texas department of public safety), Publicdata.com and using a paid cellphone ap called "been verified" (I do not recommend the latter of the three to those e seriously looking for criminal records). Anyway, all three (4 if you count the county's records) have came back CLEAN. DPS, the most prestigious law enforcement agency in the state (and, if im not mistaken, the primary source other companies get their data from), has NO record of his case. At first I thought the system was down, but I have checked both DPS and publicdata multiple times and can still find NO record. I've been told by a friend who is a retired policeman that there are RARE occasions where cases get lost in the system or are never properly reported.

So, how does he answer the dreaded question: "have you ever been convicted/arrested of a crime?" If he answers "yes", he may not get the ob, but if he answers "no", there is probably a 90% chance their background check will reveal the same results mine did. What do you suggest he do?

I would suggest that he not lie. Way to go, parental unit.

 

[dave33]

What is the name of your state (only U.S. law)? Texas

Hello. Just joined, hope this is the right forum for this topic.

Back in 2007, my son was placed one 2 year "deferred adjudication probation" (it's this special type of offered by TX courts in a plea deal, you are "technically" not convicted, but aside from still being able to vote, hold office or serve on a jury, you are pretty much still considered a convicted felon.) for a non-violent state jail felony. He has long since completed his probation and is currently applying for a job with GM. Here's the problem: I have done 3 background checks (plus looking through the county's online records) one via the DPS (Texas department of public safety), Publicdata.com and using a paid cellphone ap called "been verified" (I do not recommend the latter of the three to those e seriously looking for criminal records). Anyway, all three (4 if you count the county's records) have came back CLEAN. DPS, the most prestigious law enforcement agency in the state (and, if im not mistaken, the primary source other companies get their data from), has NO record of his case. At first I thought the system was down, but I have checked both DPS and publicdata multiple times and can still find NO record. I've been told by a friend who is a retired policeman that there are RARE occasions where cases get lost in the system or are never properly reported.

So, how does he answer the dreaded question: "have you ever been convicted/arrested of a crime?" If he answers "yes", he may not get the ob, but if he answers "no", there is probably a 90% chance their background check will reveal the same results mine did. What do you suggest he do?

The reason why people take deferred adjudication and jump through the hoops is to be able to answer "no". The absent records may be one of the perks, since "technically" he was not convicted. This is just a guess since I am not from Tx.

 

[Zigner]

The reason why people take deferred adjudication and jump through the hoops is to be able to answer "no". The absent records may be one of the perks, since "technically" he was not convicted. This is just a guess since I am not from Tx.

How would you answer the question relating to arrests?

 

[dave33]

How would you answer the question relating to arrests?

I think if I were in this situation, I would try and contact the attorney who handled the case and ask him what benefits the def. adj. can afford me.

 

[Zigner]

I think if I were in this situation, I would try and contact the attorney who handled the case and ask him what benefits the def. adj. can afford me.

That is a good suggestion.

 

[swalsh411]

Questions about "arrests" should be illegal. From an ethical standpoint I have no problem whatsoever lying about arrests since the question shouldn't be asked in the first place. The only risk I see would be if they hired him, found out, then fired for lying on the application.

 

[cbg]

And you would not BELIEVE how easy it is for an employer to find out background information on an employee, sometimes when they're not even looking for it.

 

[CavemanLawyer]

When you complete a deferred adjudication probation the arrest, the probation, and the discharge from probation stay on your criminal history. It is true that dispositions of cases can fall through the cracks and not get reported correctly but you cannot know this for sure by using public criminal history searches because their quality varies dramatically and they cannot ever guarantee accuracy. The true database is maintained by DPS and only law enforcement has direct access to that. Even if somehow the clerk's office did not send the information to DPS to put in their database, that clerk's office will surely have the record of his case including his plea paperwork and probation judgment. It sure would suck to lie on your application and then have your boss find your old probation case. If he is applying for any kind of government work they sometimes make you swear to your answers which would mean he would be committing perjury.

He can honestly answer that he has never been convicted, but he would be lying if he did not admit to the arrest.

OR... he can spend a few hundred dollars and get this cleared up for good. He can apply for a nondisclosure which will prevent DPS from releasing the record of the arrest, etc... except to law enforcement and certain other governmental agencies. And once a nondisclosure has been granted you are then permitted to deny the arrest entirely.... truthfully. That is the only way for him to honestly state on a job application that he has never been arrested.

Take a look at Government Code Sec. 552.142.

EXCEPTION: CONFIDENTIALITY OF RECORDS OF CERTAIN DEFERRED ADJUDICATIONS. (a) Information is excepted from the requirements of Section 552.021 if an order of nondisclosure with respect to the information has been issued under Section 411.081(d).

(b) A person who is the subject of information that is excepted from the requirements of Section 552.021 under this section may deny the occurrence of the arrest and prosecution to which the information relates and the exception of the information under this section, unless the information is being used against the person in a subsequent criminal proceeding.

 

[RWills]

I would first like to thank all of you for your kind replies. Thank you.

The reason why people take deferred adjudication and jump through the hoops is to be able to answer "no". The absent records may be one of the perks, since "technically" he was not convicted. This is just a guess since I am not from Tx.

deferred adjudication is rather tricky. You are technically not convicted, but for all intents and purposes, you are still convicted. DPS maintains a PUBLIC record of the arrest, plea and "disposition". The only upside, aside from being able to vote, hold office and have a firearm (I may even be wrong about this) is the fact SOME defendants are EVENTUALLY eligible for an order of non-disclosure. His lawyer says

Questions about "arrests" should be illegal. From an ethical standpoint I have no problem whatsoever lying about arrests since the question shouldn't be asked in the first place. The only risk I see would be if they hired him, found out, then fired for lying on the application.

I'm not sure what GM's requirements are, but most Texas employers have caught on the the whole deferred adjudication thing. Most applications now read "Have you ever been convicted OR plead guilty/no-contest to a felony of misdemeanor". The reason they word it in this specific manner is because deferred adjudication is "technically" not a conviction and that a defendant can truthfully answer no to questions regarding convictions. With it being worded in this manner, the applicant cannot sue the employer. Kinda defeats the whole point of DA, but it is what it is...

When you complete a deferred adjudication probation the arrest, the probation, and the discharge from probation stay on your criminal history.

True.

It is true that dispositions of cases can fall through the cracks and not get reported correctly but you cannot know this for sure by using public criminal history searches because their quality varies dramatically and they cannot ever guarantee accuracy. The true database is maintained by DPS and only law enforcement has direct access to that. Even if somehow the clerk's office did not send the information to DPS to put in their database, that clerk's office will surely have the record of his case including his plea paperwork and probation judgment. It sure would suck to lie on your application and then have your boss find your old probation case.

The DPS Comprehensive Criminal Hstory data base is public record and, for a fee, available to the public via their webstie. Again, there have been multiple searches conducted by both him and myself, and we can find NO record. Just to verify the accuracy, I put in my brothers information (he plead guilty and recieved 2 years DA for a drug charge back in 02) and came back with his records. I also searched another person I know and came back with their records as well. Very confusing. How often do cases get lost? 10% of the time?

Here is what DPS post on their webpage concerning their database.

Answer: Under Texas law, deferred adjudication and conviction records are considered public information and may be made available the general public. Please visit our C.R.S. Public Site to conduct an online name-based search.
Answer: Chapter 60, Code of Criminal Procedure requires that information on arrests, prosecutions and disposition of the case for persons arrested for Class B misdemeanor or greater violation of Texas criminal statues be included in CCH.
Answer: The Department of Public Safety is the criminal history repository for the State of Texas; our records are comprised of information submitted by criminal justice agencies only within the State of Texas. If a deferred case has resulted in probation, although the case has been deferred and the terms of probation satisfied, the arrest and probation will remain on file.

OR... he can spend a few hundred dollars and get this cleared up for good. He can apply for a nondisclosure which will prevent DPS from releasing the record of the arrest, etc... except to law enforcement and certain other governmental agencies. And once a nondisclosure has been granted you are then permitted to deny the arrest entirely.... truthfully. That is the only way for him to honestly state on a job application that he has never been arrested.

Take a look at Government Code Sec. 552.142.

Looks like he has a couple years to go....

Thank you all for your kind replies. Not trying to be argumentative. I am only trying to help my son live a decent life. If, by some act of chance, his records have been lost, it could not have happened to a better person. Since his arrest, he has gotten his GED, completed college courses, stayed out of trouble (got away from the crowd who got him in trouble to begin with) and even volunteers at the local church on weekends. complete 180.

 

[Three]

Looks like he has a couple years to go....

Where did you get that from? I read over the information three times and didn't see any timeframe mentioned.