My son was convicted in 2008 in TX for an incident in 2007 in which he was pulled over by a police officer who claimed he had more than 2 oz. of marijuana (he had less than 1 oz, but the herb was in a glass vial that the police weighed along with the contents). Against my advice, he pled guilty and paid the fine rather than go on probation for 6 mos. because that would have entailed staying in state for random tests and he already had a job lined up in California. So now he's out there and has been for 3+ years. The problem came up when another company wanted to hire him. He accepted and started on the job, then was informed that they had to terminate due to the conviction for a Class A misdemeanor in Texas. By that time, he could not go back to his old employer and now this has kept him from working at anything approximating his old job for several mos. I was hoping that his case could be sealed so that prospective employers would not be able to see the conviction after 5 years.
Country relating to Question: United States
State (if USA): California
Is this true? If not, what can be done. Is California Labor Code section 432.8 relevant to this situation? The incident occurred in Sept 2007 and the conviction a few mos. later.
No. That CA section of the code would not be relevant to this matter. Actually, 432.8 refers back to 432.7 which states a CA employer cannot ask about anything that did not result in a conviction.
Therefore, what must be done must happen via Texas Courts.
Because he pled guilty, he has a conviction on his Texas record.
Therefore, he has to have it expunged via Texas courts.
As a practical matter, what can be done about a young kid making an incorrect choice such as this. Is he at the mercy of the specific judge that hears the case, or is there a specific course of action that can be pursued? And is expungement the only avenue? Is there not a time lapse in which the conviction no longer appears?
How old was he when this happened?
He was 21
Well, no. There is no time lapse that a matter automatically disappears
And no, he is not at the mercy of the sentencing judge.
There is a process he needs to go through.
If he had been on probation and did it successfully he could have requested an Order of Non Disclosure
Since he pled guilty and paid the fine, he now has to Petition the Court for an expungment.
When I asked if he was "at the mercy" of the judge, I meant the judge that would hear his appeal now.
He will have to apply for a Governor's Pardon before he can even begin the Expungment process
As in, is it discretionary of is the court "compelled" to expunge if my son does A - B - C?
There are two separate processes
The first is at the Executive Level, where he applies for the Pardon/Clemency
And the next step is to Petition the Court
And no, the court is not "compelled" to issue the expungement
The Pardon will not guarantee that the court will expunge the record but it is a necessary step
which makes him eligible to Petition the Court
Who or what can issue the pardon?
Please use this link to read more on the Governor's Pardon/Clemency process
And also the forms are available there.
Only the governor may issue a Pardon/Clemency but it comes at the recommendation of the Parole Board, even though he was never on Parole. Because they do the "groundwork" for the Governor in this regard
So he will get the application
He will fill it out, submit it and Wait
There is a waiting list of about 18 to 24 months for a Pardon
It is not an overnight process. But it is the only way to get the expungement
Once he is granted the Pardon/Clemency he will them Petition the Court of Conviction for the record to be expunged and sealed
You want to be sure to get the sealing in addition to the Expungement because that is the arrest records, too.
Let me approach this another way. How long can prospective employers use this single incident - he has no other record, and this was simple possession - NO violence, NO resisting arrest, NO DUI, NO intent to distributed - as a reason to not hire?
There are no laws precluding any employer from inquiring into a criminal history or not hiring someone because of it.
Remember, employers can hire and fire At Will as long as it is not discriminatory
based on race, religion, gender, disability, etc
One reason I am asking you these questions is because of the lawyer we used at the time - who I still communicate with some times - says we need to move the "case" to another court because he thinks another judge may be more agreeable on this subject than the prior one was. The goal is to get the records sealed, but if I'm understanding you correctly, there is no legal basis for the judge doing so unless and until we have the pardon in hand. is this correct, or can a local judge in the district allow the records to be sealed?
Ok. Well, it is not up to the Judge. You see, once a pardon is granted, and a Petition filed for the Expungment, then it needs to be served onto the District Attorney
Now, the DA can oppose it.
But if they agree it should be expunged, there is no reason for a Judge not to agree to it
There are certain eligibility criteria to get an expungement
Probation successfully completed
or a Pardon
These make one "eligible" for the removal of the record and the sealing of the arrest record
Court record conviction and the Arrest record are separate matters also
So, if one is arrested and charges are dismissed or not filed, then they are eligible to have the arrest records sealed
If they are arrested, charged and convicted, as your son was, then there needs to be a pardon to make him "eligible:
"eiligble" to have the expungment and the arrest records sealed
So there appears to be no value to "taking it to another court" at this time.
That would be correct
In my estimation alot of wasted time and money
It is not about the judge. And generally the judge who took his plea will not likely be the one who gets the Petition
These matters are "circulated" among the judge's. Again, it is up to the District Attorney
because they will need to be served. But all this is getting ahead of the game
The Pardon is the first step
Meanwhile, my son is at the mercy of whatever review process prospective employers choose to utilize in their individual hiring practices . . . if they want to say "Class A misdeanor = no hire", they can. Even though it was for a simple marijuana possession, which is pretty mundane everywhere but Texas.
Yes, unfortunately. As can landlords
They often times require background checks and do not have to lease to anyone with a criminal record of any kind
There are no laws - even in California - that limit the length of time that such a relatively minor transgression can hold that over his head?
It would not matter if the Courts in CA handle these matters differently. This is a Texas Conviction.
So it needs to be handled via the Texas court system with those procedures
There is no fee to apply for the Pardon
It is his starting point
And once he applies, he can always put on an application that while he has a simple possession of marijuana conviction, he is appling for a pardon
to get it expunged
Remember on the job application it will ask
Have you ever been convicted of a misdemeanor or felony?
He can explain - Yes, a simple marijuana possession that I have applied to be Pardoned on
Many times, when an employer sees a conviction, they dont even know what it is for
It just says Misdemeanor. And they don't care. So if he explains it, before they do the check on his background that may help
Thanks for the info. Not what I wanted to hear, but what I feared and needed to know.
You're welcome. Now you have the whole scoop and how it works. Once you accept this chat, it will convert to a Q&A format and you can refer to it at your convenience in your question list
Handle criminal matters in both state and federal courts
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