Will a Misdemeanor Show up on a Background Check?

Criminal defense attorney Eric Torberson

This question on whether a misdemeanor will affect a background check is too vague and needs to be more specific to answer accurately. So maybe the question should be this….

Will Dismissed Charges Affect Employment?

The answer is maybe. At least in Texas an arrest will show up on a background check until it is expunged and erased from a person’s record. I tell my clients to carry a copy of the court order of dismissal with them if the issue arises. Then they should explain that this will be erased from their record very soon assuming that they are pursuing an expunction in the county of arrest. It also depends on what the exact wording in the job application is. Some ask about felonies. Some ask about convictions. Some ask about both and arrests as well. Leaving out what the application is asking for can be negative for the applicant because the employer will expect honesty from a potential employee foremost.

Will Being Charged But Not Convicted of a Felony Affect My Job?

Again it depends on the job. There are many jobs that hire convicted felons to do various work. This question seems to apply to a pending case or one that only has recently been dismissed. Otherwise it would be prudent to get it expunged as soon as possible. Some employers do not want to hire someone with a pending case and need it to be resolved. It depends on company policy and certain liability issues with regard to the criminal charge. Some jobs require driving or being around money. The type of pending case will really determine what the company will want to do assuming they are aware of the charge.

What Do They See on My Criminal Record if not Convicted?

The arrest will show up on most criminal records until it is expunged. Again I tell people to carry the dismissal order to show that it is over and done with. The background check will show the arrest date, charge and where it took place. You will want to contact a local attorney in that town or county in which the arrest happened in order to find out how to get it erased or expunged.

How Long Do Arrests Stay On Your Record?

Arrests will stay on your record forever. Since the modern age of computers has come to be, arrests are in most local computer systems. Those records get sent to the Department of Public Safety’s system and are available to everyone from there. Which is why I send notice to DPS when I do expungements for my clients.

If Charges Are Dismissed Do You Have a Criminal Record?

In a way yes depending on how you define the term criminal record. The criminal history will have unexpunged arrests which may raise eyebrows of potential employers. For instance a bank may think twice about hiring someone with dismissed theft charges on their record. Or maybe multiple theft charges that were dismissed. Someone wanting to work at a daycare may have a hard time getting a job even with a domestic violence charge first offense on their record even if they are dismissed. A future nurse would not want prescription fraud charges and the list can go on and on.

Jobs You Cannot Get With a Criminal Record

There are many jobs that restrict applicants to having a clean record. The military can be extremely selective on who they let in. This especially true in non-war times when troop numbers are being reduced. Law enforcement is very selective. In Texas a peace officer can have a misdemeanor on record but is must be 10 years or more old. Pilots cannot have records including intoxication offenses. Many of the regulated licensing jobs such as teachers, nurses, and lawyers require strict background searches before licensing. It can be especially difficult with a felony in the background.

How a Domestic Violence Charge Ruined My Life

I had a client visit me at my office looking for Austin assault attorneys. He was charged with an assault family violence commonly referred to as a domestic violence charge. He had previously had a domestic violence allegation called in on him by a girlfriend he used to live with. He wanted the case over quickly so he didn’t hire the best attorney and took the probation offer that the prosecutor gave to him in court. He did not know that the conviction would get him fired from his job when they did a background check. While he was unemployed he still have to do 130 hours community service and pay a $3000 fine. He had a concealed handgun license he had to give up as well as not possess guns for 5 years in Texas. Texas has its laws but under Federal Law he can never possess a gun. This is not the worst part. He recently had an argument with a new girlfriend and she accused him of assaulting her. This time is was a 3rd degree felony. Once a person has a family violence finding in Texas the next accusation becomes a felony by enhancement. That means he could potentially face 10 years in prison maximum. Luckily for him I got the case dropped and we expunged it later on. It’s too bad he didn’t have my representation on his first case. It would have saved him from a tremendous amount of stress.

How To Get a Misdemeanor Expunged in Texas

The procedure for expunging a misdemeanor and a felony are the same. A petition and order are filed in the clerk’s office just like any civil lawsuit would be file. The following topic will explain the general process for expunging a case in Texas state court.

How To Expunge a Dismissed Case

A dismissed case or an acquitted trial case can be expunged. The dismissed case may require a waiting period before an expungement can take place. Some prosecutors offices will oppose an expungement until the statute of limitations has expired. Or hopefully sometimes they will agree to an immediate expungement. Once an expungement is ready to begin, an attorney will prepare a petition and order. The documents will contain the critical details about the arrest with data and dates to identify the exact arrest to be expunged. The document gets filed at the clerk’s office just as any civil lawsuit would. A waiting period of 30 days is required before it is set in district court for a judge to examine. Once the judge determines that the expungement paperwork is proper the order is signed. The expungement is then taken to be filed a the clerk’s office. The attorney will then get certified copies for the client. The clerk’s office will forward a copy of the order to the various agencies listed in the order who will have the arrest in their records. This can be the police, jail, court, bondsman, clerks, prosecutors, and the DPS. Other online reporting sites may need to be included as well. They can be hard to reach. This notification time period can take several months. Sometimes the expungement order doesn’t get sent properly to each agency and another copy of the order needs to be sent. It is satisfying for me once I have completed an expungement. I was able to get the case dismissed and then expunged. It means the client can move on with their life to bigger and better things.

Texas Expungement Cost After Acquittal

After a trial by judge or jury, a defendant is entitled to an expungement immediately. For it to be cost free it needs to be done within 30 days for the filing fee to be waived. This doesnt mean the attorney will be doing it for free, the cost should be several hundred dollars cheaper that otherwise.

Eligibility For Clemency and Pardon in Texas

This discussion would not be complete without a discussion on pardons. It is the third and most unlikely way to qualify for an expunction in Texas. Each year the governor pardons a handful of people who are screened and make it through the process. An application is posted on the Board of Pardons and Paroles. The Board recommends clemency matters, including pardons, to the Governor as it states on their website. The number of pardons are very few. There were only 10 pardons given in 2013 by former Governor Rick Perry. Governor Abbott pardoned 5 people in 2016. There are different pardons. A pardon for innocence is by far the best pardon to receive. It declares a person innocent wipes the conviction from their record completely. This is only available for felonies. A conditional pardon involves conditions to complete during a time period or the pardon will be revoked by the governor. A full pardon clears the felony or misdemeanor conviction and restores most rights. The person will not be eligible to become a peace officer. A pardoned convict will never be able to become a Texas police officer.

How to Get My Criminal Record in Texas

There are options for people to search their own criminal records. A common site to use is the Texas DPS criminal records search https://publicsite.dps.texas.gov/DpsWebsite/CriminalHistory/.  There are other sites as well that require a small fee. Another way is to look for county website data in the county where there may be possible criminal history. The problem is that many rural counties do not have records posted online and will require a paid manual search that can take quite a bit of time.

Texas Background Check Laws

The Texas Workforce Commission website has some rules regarding employers background checks for employers to obey. Also there are suggestions to employers in order to be fair to someone who may have been in trouble in the far past. They suggest to “try to consider only criminal history that is recent enough to be relevant, given the nature of a particular offense, the nature of the job, and the corresponding level of risk of harm – the remoteness of an offense is a factor in the job.” The EEOC site also has guidelines and suggestions about employers inquiring into criminal background. It might be prudent for a person to read over these suggestions to help understand the employers position and approach to interviewing applicants.

Author: Eric Torberson

Eric Torberson is a licensed attorney in Texas as well as licensed in the federal courts of the southern and western districts of Texas.

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