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  1. #1
    Join Date
    Aug 2014
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    4

    Default Record Still Shows Felony Conviction Set Aside 30 Years Ago

    My question involves criminal records for the state of: Texas

    Long story short my father plead guilty(even though he wasn't but was kind of forced to) to felony possesion of marijuana. Sentenced to probation for 9 years. He succesfully completed probation in 1985 filed the papers and moved on with his life. Has gone through life thinking he was a convicted felon. We started talking about his little experience this past weekend. I wanted to see the papers he got from the judge. Low and behold....In 1985 when he was released from probation the judge also SET ASIDE his conviction, WITHDREW is guilty plea, and restored all of his rights. 29 YEARS HAS PASSED SINCE THE LETTER WAS ISSUED. He never knew what this meant. I pulled his criminal record and it says CONVICTED. The courts never updated his set aside.

    What should I do?


    Also, once the DPS record is updated does that mean his FBI file will be updated as well? Doesn't this mean that he has all his rights back including right to own a firearm and ,therefore, pass the NICS?

    I'm still in shock that all this time has passed and nobody knew this!

  2. #2
    Join Date
    Sep 2005
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    98,846

    Default Re: Record Still Shows Felony Conviction Set Aside 30 Years Ago

    See what the DPS Error Resolution Unit can do for him.

  3. #3
    Join Date
    Feb 2011
    Location
    Arizona
    Posts
    387

    Default Re: Record Still Shows Felony Conviction Set Aside 30 Years Ago

    This is not at all uncommon. Sounds like an updated Disposition Report was never sent to DPS. He definitely should check with the Error Resolution Unit. Also, be aware that restoration of civil rights does not always mean restoration of the right to possess a firearm.

  4. #4
    Join Date
    Aug 2014
    Posts
    4

    Default Re: Record Still Shows Felony Conviction Set Aside 30 Years Ago

    Thanks For the feedback. I talked to the error resolution unit here in Texas. They have updated the record in Texas. The lady said she is sending fingerprints and info to the FBI which should take two weeks or so. I'm assuming once the FBI has updated the record as well, We should be good to go as far as NICS background checks are concerned.

    As far as the gun issue, I pulled this from the attorney general of texas:

    You similarly ask whether a person whose felony conviction has been "set aside" under article 42.12 of the Texas Code of Criminal Procedure is convicted for the purposes of section 46.04 of the Penal Code. Request Letter, supra note 1, at 1. We assume that you refer to the procedure under article 42.12, section 20 by which a judge may set aside a defendant's verdict or permit the defendant to withdraw a plea. See Tex. Code Crim. Proc. Ann. art. 42.12, 20(a) (Vernon Supp. 2001). Because a defendant whose verdict is set aside or who is permitted to withdraw a plea under article 42.12, section 20 is generally "released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty," id., we conclude that a defendant whose guilty verdict has been set aside or who has been permitted to withdraw a plea is, like a pardoned felon, not subject to section 46.04 of the Penal Code.
    As I read it...It says that since it has been set aside and plea withdrawn, you cannot be prosecuted for felon in possesion. So basically you have your gun rights back. The federal government goes back to what the orginal jurisdiction says...So in Summary since there was no conviction, the gun rights are still present.....THOUGHTS?

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