By Criminal Defense Lawyer Jeremy Rosenthal
It’s heartbreaking for me to hear current clients and folks who’d gone through some rough patches before be extremely excited about a potential job opportunity only to have the opportunity repeatedly crumble at the last minute over and over.
My Approach To Answering “How Should I Answer the Arrest Question”
First – I advise my clients they usually don’t have a duty to answer questions which aren’t asked depending on the job they’re applying for. Many folks think they get brownie points for disclosing things they might not have to disclose – and in a perfect world this would be true. My experience is the opposite, though.
It’s really important to read the question being asked, answer that question, and not answer questions which aren’t being asked. It’s my experience many employers (and their lawyers) sometimes draft imprecise or clunky questions about previous arrests. These are questions which might allow you to answer the questions honestly yet not require you to disclose your situation.
Remember your potential employer will also probably do a background check on you too. You don’t want to get ‘too cute’ answering a question about your criminal history only to have the potential employer not hire you anyway.
Expunctions and Non-Disclosures are the best way to solve these problems. An expunction allows you to deny the entire situation occurred in the vast majority of situations and a non-disclosure hides the affair from the public.
Quick Texas Guide to Background Check Questions
Have I Been Convicted?
Situations where the answer is “No”
- If you were on deferred adjudication and successfully completed Deferred successfully for a felony or misdemeanor
- If you are currently on deferred adjudication community supervision for either a felony or a misdemeanor
- If your case is currently pending and you have yet to enter a plea
- If you are waiting for your case to go to trial
- If you went to trial and were found “not guilty”
- If your case was dismissed for any reason
Situations where the answer is “Yes”
- If you have ever plead guilty to a Federal offense
- If you’ve gone to TDC or State Jail
- If the judge found you guilty even if you were on probation
Have I Been Charged with an Offense?
“Charged” is a tricky word in these contexts. What concerns me about the wording is I worry some may not agree with my interpretation or might not really understand what this term means.
To me, you are not “charged” with an offense unless or until the prosecuting authority (normally a District Attorney’s Office) files either an information against you in a misdemeanor or an indictment against you in a felony.
But we often hear on television or read in the newspaper someone was “arrested and charged with…..” That’s usually not an accurate statement because normally the indictment or information follow an arrest weeks or months later.
So I do worry about folks who answer a background check question they have not been “charged” with an offense greater than a traffic ticket but who have been arrested – because the prospective employer might not understand the difference.
I always tell my clients – current and former – please call me with any questions about how to answer a specific question.
*Jeremy Rosenthal is board certified in Criminal Law by the Texas Board of Legal Specialization. He is a Texas Super Lawyer as designated by Thomson Reuters. Nothing in this article should be considered legal advice.