NICS denial / deferred adjudication question

[PARTSGUY]

I know for sure that you would be denied for CHL, as far as just buying a gun- not sure, but possible.

Are you sure about this???? This happened 21 years ago. A couple of posters above seem to think differently. Can anyone clarify this or refer me to the appropriate law that deals with CHL and deferred adjudication. As soon as I get my NICS issue cleared up, I intend to pursue my CHL. Hopefully!

[dicion]

I know for sure that you would be denied for CHL, as far as just buying a gun- not sure, but possible.

Are you sure about this???? This happened 21 years ago. A couple of posters above seem to think differently. Can anyone clarify this or refer me to the appropriate law that deals with CHL and deferred adjudication. As soon as I get my NICS issue cleared up, I intend to pursue my CHL. Hopefully!

If It's considered a felony, and Deferred adjudication counts as a conviction for the purposes of CHL, which it does, then yes, as long as it exists, you are ineligable for a CHL.

You will need to have it completely expunged from your record in order to get a CHL.

[ScottDLS]

I know for sure that you would be denied for CHL, as far as just buying a gun- not sure, but possible.

Are you sure about this???? This happened 21 years ago. A couple of posters above seem to think differently. Can anyone clarify this or refer me to the appropriate law that deals with CHL and deferred adjudication. As soon as I get my NICS issue cleared up, I intend to pursue my CHL. Hopefully!

If It's considered a felony, and Deferred adjudication counts as a conviction for the purposes of CHL, which it does, then yes, as long as it exists, you are ineligable for a CHL.

You will need to have it completely expunged from your record in order to get a CHL.

Unless the "Theft" was related to burglary of a habitation, it appears that you could qualify for a CHL, since a felony deferred adjudication is not considered a "conviction" after 10 years.

GC § 411.1711. CERTAIN EXEMPTIONS FROM CONVICTIONS. A
person is not convicted, as that term is defined by Section 411.171, if an
order of deferred adjudication was entered against the person on a date
not less than 10 years preceding the date of the person's application for
4 GC §411.172. TEXAS CONCEALED HANDGUN LAWS
a license under this subchapter unless the order of deferred adjudication
was entered against the person for:
(1) a felony offense under:
(A) Title 5, Penal Code;
(B) Chapter 29, Penal Code;
(C) Section 25.07, Penal Code; or
(D) Section 30.02, Penal Code, if the offense is punishable
under Subsection (c)(2) or (d) of that section; or
(2) an offense under the laws of another state if the offense contains
elements that are substantially similar to the elements of an offense listed
in Subdivision (1).

[PARTSGUY]

Thanks scottDLS for the reference. That is what I thought from reading on the forum, but I couldnt find the proof!

[rm9792]

It may be that your application was denied because you "lied" by not revealing the deferred adjudication. I would consult a lawyer who knows what he is doing with regard to NICS.

I never did say yes to the conviction before I had a CHL. I had deferred adjudication and was buying pistols the whole time. I got some denials but usually was called back within an hour. I chalked it up to a common name. Most purchases went right thru.

I may be wrong, but the above makes it seem that when you say "denied" you actually mean "delayed". The two are very different and it would help us to comment more helpfully if we were clearer on which you mean.

You are correct, delays. Posting and sleepy dont mix.

[rm9792]

I know for sure that you would be denied for CHL, as far as just buying a gun- not sure, but possible.

Are you sure about this???? This happened 21 years ago. A couple of posters above seem to think differently. Can anyone clarify this or refer me to the appropriate law that deals with CHL and deferred adjudication. As soon as I get my NICS issue cleared up, I intend to pursue my CHL. Hopefully!

If It's considered a felony, and Deferred adjudication counts as a conviction for the purposes of CHL, which it does, then yes, as long as it exists, you are ineligable for a CHL.

You will need to have it completely expunged from your record in order to get a CHL.

Incorrect, there is a waiting period but then you are good to go. Trust me, I know. The clarification he seeks is pretty easy to locate on the state website under the CHL section.

[baldeagle]

Well, there's lots of smoke here but not much light. With the exception of ScottDLS, no one has even bothered to provide a cite to back up their statements about the Texas CHL. So, let's look at what Scott posted.

GC § 411.1711. CERTAIN EXEMPTIONS FROM CONVICTIONS. A
person is not convicted, as that term is defined by Section 411.171, if an
order of deferred adjudication was entered against the person on a date
not less than 10 years preceding the date of the person's application for
4 GC §411.172. TEXAS CONCEALED HANDGUN LAWS
a license under this subchapter unless the order of deferred adjudication
was entered against the person for:
(1) a felony offense under:
(A) Title 5, Penal Code;
(B) Chapter 29, Penal Code;
(C) Section 25.07, Penal Code; or
(D) Section 30.02, Penal Code, if the offense is punishable
under Subsection (c)(2) or (d) of that section; or
(2) an offense under the laws of another state if the offense contains
elements that are substantially similar to the elements of an offense listed
in Subdivision (1).

The obvious question is, is PARTSGUY's deferred adjudication a disqualifying factor for him to obtain a CHL. To answer that question, we have to address each element of the law as it applies to his particular circumstances. Since his offense occurred in Texas, we can ignore subsection (2) of Section 411.172, since it refers to offenses committed in other states. (Or can we? PARTSGUY?)

• Section 411.1711 states that his deferred adjudication must predate, by 10 years, his application for a CHL. It does.
• Title 5, Penal Code, Offenses Against Persons, CHAPTER 19. CRIMINAL HOMICIDE, CHAPTER 20. KIDNAPPING AND UNLAWFUL RESTRAINT, CHAPTER 20A. TRAFFICKING OF PERSONS, CHAPTER 21.SEXUAL OFFENSES, CHAPTER 22. ASSAULTIVE OFFENSES. He stated his offense was a felony theft, so none of these would apply.
• Chapter 29, Penal Code, Robbery. Ditto.
• Section 25.07, Penal Code, VIOLATION OF CERTAIN COURT ORDERS OR CONDITIONS OF BOND IN A FAMILY VIOLENCE CASE. Ditto.
• Section 30.02, Penal Code, BURGLARY, if the offense is punishable under Subsection (c)(2) or (d). Ditto.

So it looks like, according to the law, he is free to apply for a CHL without fear that his deferred adjudication will prevent him from receiving one. (There may be other factors that would, but he hasn't made us aware of those. HIs question addressed the specific issue of deferred adjudication for a felony theft.)

Now that we have that out of the way, we can get back to his original question, which had nothing to do with a CHL. He asked if he could buy a gun (pass the NICS check) with his deferred adjudication. Several people have addressed that, so I won't add to the confusion.

[ScottDLS]

Yes. Thank you. I did check each element of the the Penal code to see if theft was in any of the references and as you have clearly detailed, PARTSGUY appears to be eligible for a CHL. I think the NICS denial may be the result of outdated information regarding the disposition of his case or the Feds misreading the deferred adjudication as federally disqualifying...which it is not.

-Scott

[PARTSGUY]

Thanks baldeagle and scottDLS for the references above. Yes this was in Texas. From what I have read above, I should be eligible for a handgun purchase and my CHL. This is truly good news. My wife and I both plan to get our CHL in the near future.

[safety1]

First things first. You must get the issue of eligibility to purchase a firearm clarified. This is a requirement of getting your CHL. If you cant purchase a gun you obviously you can not get your CHL. Go through the appeal process and resolve that first. Good luck!

[PARTSGUY]

Well, I sent an email to NICS as follows..................................................................................

I recently attempted to purchase a handgun and was denied by the NICS check. I need to know the reason for the denial.

On the application, it asked if I had ever been convicted of a felony and I answered no.I received deferred adjudication for a felony back in 1989, and my lawyer told me that the correct answer would be no, that I had not been convicted. If this is the problem, would you please advise me how to proceed to get this purchase approved.

Their response, less than 24 hours later.........................................................................................


This is in response to your email received by the FBI Criminal Justice Information Services (CJIS) Division's National Instant Criminal Background Check System (NICS) Section on November 17, 2010. An appeal will be initiated on your behalf with the NICS Section Appeal Services Team (AST).

The NICS AST will send a written response to your request within five full business days. The Brady Act defines a business day as any day in which the state offices in your state of residence are open. This response may request that you provide additional information and/or proof of identity such as a set of rolled fingerprint impressions prepared by a law enforcement agency to support your appeal.

NICS Section
CJIS Division



I got the paperwork today, and the reason I was denied wasn't even related to my deferred adjudication. It was because "either myself or another individual with a similar name and/or similar descriptive features has been matched with a prohibitive criteria: It shall be unlawful for any person who is under indictment or information for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate commerce any firearm or ammunition or receive any firearm or ammunition which has been ...blah blah blah.....
This is not me! Now all I have to do is get my fingerprints done and return them and hopefully all will be well. Thanks for all the help!!!!!

[safety1]

Good Luck! I hope it all works out for ya!

[stealthcrf]

Well, I sent an email to NICS as follows..................................................................................

I got the paperwork today, and the reason I was denied wasn't even related to my deferred adjudication. It was because "either myself or another individual with a similar name and/or similar descriptive features has been matched with a prohibitive criteria: It shall be unlawful for any person who is under indictment or information for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate commerce any firearm or ammunition or receive any firearm or ammunition which has been ...blah blah blah.....
This is not me! Now all I have to do is get my fingerprints done and return them and hopefully all will be well. Thanks for all the help!!!!!

Actually this is most likely due to your incident. You would have been charged/indicted with a felony and that is left open until your deferred adjudication is completed and then should be considered disposed. Many times the first two things happen and then the courts never finish updating your case disposition status. In other words their files show that you have been under indictment for 20+years and are thus still ineligible.

[Beiruty]

best course of action, is to contact the court where the initial charge was filed and ask for documentation on the case and how it was disposed (dismissed).

[michael e]

I had this same issue almost a year ago. Your are going to have to send in your finger prints. After waiing almost a month they will tell you its not you. You have 30 days to go back to the same place and get the fire arm. The FBI was very rude and unhelpful in the situation. After all this they just said its not our problem and just deal with it. I went at got my CHL in part due to that reason