How Should I Answer Questions on a Job Application if I’ve Been Arrested?

October 14, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

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.

Overriding Advice

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.

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The List of Who Can See a Non-Disclosed Criminal Record in Texas

July 8, 2013

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

A non-disclosure can generally be described as “hiding” a criminal record from the public.  This means your record never really goes away.  Certain agencies and entities can always view your criminal record.

You can read about eligibility requirements here for a petition for non-disclosure.

Here is the list currently provided by the Texas Government Code 411.081(i) of agencies that can see non-disclosed criminal records.

  • The State Board for Educator Certification;
  • School Districts;
  • Charter Schools;
  • Private Schools;
  • Regional education-service center;
  • Commercial-transportation companies;
  • Education shared-service arrangement companies;
  • Texas Medical Board;
  • Texas School for the Blind and Visually Impaired;
  • Board of Law Examiners;
  • State Bar of Texas;
  • A District Court regarding petition for name change;
  • Texas School for the deaf;
  • Department of Family and Protective Services;
  • Texas Youth Commission;
  • Department of Assistive and Rehabilitation Services;
  • Department of State Health Services;
  • Local mental health services;
  • Local mental retardation authorities;
  • Community centers providing services to mentally ill or retarded persons;
  • Texas Private Security Board;
  • Municipal or volunteer fire departments;
  • Texas Board of Nursing;
  • Safe houses providing shelter to children in harmful situations;
  • Public or non-profit hospital districts;
  • Texas Juvenile Probation Commission;
  • Securities Commissioner;
  • Banking Commissioner;
  • Savings and Mortgage Lending Commissioner;
  • Consumer Credit Commissioner;
  • Credit Union Commissioner;
  • State Board of Public Accounting;
  • Texas Department of Licensing and Regulation;
  • Health and Human Services Commission;
  • Department of Aging and Disability Services;
  • Texas Education Agency;
  • Guardianship Certification Board;
  • County Clerks office in regards to appointment of a guardian;
  • Department of Information Resources;
  • Court Reporters Certification Board;
  • Texas Department of Insurance;
  • Teacher Retirement System of Texas.

Non-dislclosures should not be confused with expunctions which are generally a complete destruction of a criminal case on one’s record.  You can read about expunctions here.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Petition for Non-Disclosure

March 15, 2010

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

A Petition for Non-Disclosure is an intermediate tool used to clean someone’s record.  It essentially hides your record from the public.  It is not as sweeping or as beneficial as an expunction, but it can lessen the blunt force of a conviction.

The Non-Disclosure statute is very complicated and is loaded with qualifications and exceptions.  What it means, in general, is that your criminal record stays intact (unlike an expunction where an arrest record is destroyed), but the state is limited in it’s ability to disseminate the information of your record to the general public.  As you can see by reading the statute, there are numerous agencies which are exempted from honoring the non-disclosure (such as professional licensing bodies), and there are tons of offense which don’t qualify for non-disclosures (such as sexual assault, stalking, and family violence affirmative findings).

Here is how it generally works:  If you plead guilty and are placed on deferred adjudication, you may be eligible to file a petition for non-disclosure two years after the date of your Tex.Code.Crim.P. 42.12(5)(c) dismissal on misdemeanor cases and five years after the dismissal of your felony.  Your petition is discretionary meaning the prosecution can fight it and you must prove to the judge that granting it is in the best interests of justice.

The code was recently amended to allow for immediate non-disclosure of most misdemeanor offenses after successfully being discharged from deferred adjudication.

The benefit of a petition for non-disclosure is that your criminal record shouldn’t be readily available to private companies that do general background searches.  The downfall is that they can be challenging to get and even though the information s difficult to attain, it hasn’t been destroyed as with expunctions.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be considered legal advice.  For legal advice you should always consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

What is an Expunction in Texas?

February 7, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

A criminal arrest record can be like the legal equivalent of cancer.  It can cost you a job, a promotion at work, or countless other opportunities.  The damage is done when someone hears about the arrest.  Most aren’t interested in details that you were acquitted or the charges were dropped.

An expunction is the legal equivalent of curing the cancer that is a criminal arrest.  A state district judge orders the records stemming from a criminal arrest destroyed.  This includes records which were part of the arrest or that reference the arrest such as court records, the district attorney’s file, and even transcripts of the trial.  When people refer to having something “taken off” their record, an expunction is generally what they mean.  This also means that the state’s agencies can’t give information about your these arrests to private companies who gather criminal data for distribution for private background checks.  Tex.C.Crim.P. § 55.03(2) even allows for a person with an expunction to “deny the occurrence of the arrest…” in certain circumstances.  The code has specific details you should be aware of for that provision.

What is unknown by most is qualifying for an expunction can be somewhat difficult.  Though expunctions can be highly complex in certain circumstances where (where multiple allegations stem from the same arrest for example) – most are cut and dry.  If prosecution against you has been barred as a general rule, you are probably entitled to an expunction.  Prosecution can be barred where you are acquitted by a judge or jury, where the statute of limitations has expired and the case hasn’t been filed, or if prosecution has been barred for some other reason.

It is a common misconception that getting deferred adjudication ‘magically’ drops the criminal arrest record on it’s own for any offense.  Deferred only entitles you to an expunction for (most) class “C” misdemeanors in Texas.  These are the lowest level of offense, which include traffic tickets and petty offenses ranging from minor in possession, possession of drug paraphernalia, and theft below $50 in value as examples.  Even though you weren’t taken to jail on a class “C” doesn’t mean there isn’t a record either!  An Expunction may still be necessary.

Deferred adjudication for offenses from class “B” misdemeanors and above may entitle you to apply for a petition for non-disclosure which generally limits who can know about your criminal case but is different from an expunction.

An expunction doesn’t happen on it’s own.  A state district judge must approve your petition for expunction.  This is a very technical process and is commonly handled by lawyers.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. This article is not intended to be specific legal advice.  Please consult an attorney for questions regarding this subject matter.

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Posted by Jeremy Rosenthal, Esq.