What will show up on my Texas Criminal Background Check and History?

The Internet has revolutionized methods by which employers can review potential candidates for a job.   With the simple click of a button, HR departments and employers can see your prior criminal history. In Texas, where jobs are hard to come by as it is, a criminal offense on your background check will most likely put you behind other candidates -- even less qualified ones.  It could even terminate your chances of being hired at all.

So what shows up on your Texas Background check?  The answer is not as simple as you might think.  First, it depends on who is running the background check, and where the information is coming from.

DPS and State Agencies.  DPS is the central storage center for all convictions and arrests in Texas.  Courts forward case information to them, and the, DPS sells the criminal information to third parties, which are typically Online Background Check businesses.  Yup, that's right: DPS is making money from criminal history data.  This database used to include Class C tickets as well, since they are technically (and still quite officially) Misdemeanor criminal offenses.  At the time of this writing, it seems DPS is no longer tracking Class C's, although that information still might be available through some of the other businesses or agencies below.

Internet Background Check sites.  Some possible employers or landlords (or colleges) use specific criminal history and background check companies, the majority of which are online.  One of the most popular is Intelius.com, where basically anyone can sign up and view criminal background history.

So what shows up on your criminal record (or a friend, co worker, etc...)?  The best way to determine that is to run your own check.  Many online sites can do a quick, instant search for just a couple dollars.  There are even sites that offer coupon codes for leading background check companies: for instance, try http://www.criminalbackgrounddetective.com/coupons-codes.php.

Otherwise, you can check with DPS, although they will require fingerprints and payment of close to $30 for the most complete background check.  You can find more information about that background check service at: http://www.lawofficeofrobertkeates.com/criminaldefense/expunge.php.

Expunctions, and Clearing your Record.  The most important reason to check your record is to see what  employers will see, and IF an offense shows up, DO something about it.  Whether your case is eligible for an Expunction, NonDisclosure, or Pardon, there are ways to clear and seal the offense from the public.  for more information, please visit: http://www.lawofficeofrobertkeates.com/expunctions/expunction.php

Medical Marijuana in Texas? Texas Marijuana Stamp Tax Act

Medical Marijuana in Texas currently (as of 2013) does not exist.  Because the Federal Government has no laws that allow for implimentation of a Medical Marijuana statute in the entire US, States have opted to enact their own Medical Marijuana Laws.  However, Texas has none.

It is not a defense to possession of marijuana in texas if you have an out of state medical marijuana prescription or license.  Let me repeat: It is not a defense in Texas if you have a medical marijuana prescription.  While another state may endorse Medical Marijuana, all controlled substances are still technically governed by Federal laws, and as such, there is no right to interstate commerce with Medical Marijuana Rx the way that Driver's Licenses can be used state-to-state while traveling.

Texas Marijuana Stamp tax Act

I believe Fox News ran a segment lately about the Texas Marijuana Stamp Tax Act.  How anyone who is interested in the legalization of marijuana happened to catch the segment on Fox news is beyond me, but people have been constantly calling, asking how to legally get their hands on some taxed, legal marijuana in Texas.  In short, you cannot.

How much are these stamps? Marijuana is listed at $3.50 per gram. What does that mean? It means you've paid a tax on marijuana, a still-listed controlled substance.  In a way, it's a bold admission of possession of Marijuana.  Not only do you intend on (and probably at that time) possess marijuana, but you've gone a step further to pay a State tax on it!  Unfortunatly, paying tax on contraband does not mean it's legal.  So the marijuana you've paid tax upon is still illegal according to the Texas Penal code.  

In fact, the Tax Code itself makes it plain as day that your taxed marijuana is still illegal, by indicating:

"Nothing in this chapter provides a defense or affirmative defense to, exception to, or immunity from prosecution under the penal laws of this state relating to controlled substances, counterfeit substances, simulated controlled substances, or marihuana."

Yes, for some reason Texas statutes and laws still refer to marijuana as "marihuana."

Another interesting question I've been asked: Is your information instantly turned over to law enforcement when you buy a stamp? Answer:  It's a class B misdemeanor for the comptroller to release a buyer's information, but since it appears that possession even with a stamp is still illegal it's difficult to say who has access to the information.

So, our advice:  Don't waste your money to pay taxes on an illegal substance or contraband, since it's still illegal, and don't think that your medical marijuana Rx is valid in any state or area other than the one issuing it to you.

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Can I be Arrested for Giving Away Marijuana in Austin?

Can I be Arrested for Giving Away Marijuana in Austin?

Years ago, I represented a fellow who decided to stuff stockings with a small bag of marijuana and give them to friends for Christmas.  The case was not in Austin, and unfortunately for him, he was pulled over with the set of marijuana filled stockings in his backseat.  The officer said he could smell the marijuana right away; when the officer saw the marijuana gifts stacked neatly on the backseat, he actually laughed.

Comedy aside, my client was arrested for Sale of Marijuana (Delivery of a Controlled Substance, in Texas). Clearly packaged as gifts, we had little use of the common defense "I plan on smoking all of it myself."

Luckily, Texas law recognizes there is a difference between marijuana being sold and marijuana being given away.


Texas Health and Safety Code Section 481.120, entitled OFFENSE: DELIVERY OF MARIJUANA, indicates that

"a person commits an offense if the person knowingly or intentionally delivers marijuana."

The language in the code section above makes no distinction between how the marijuana is delivered; be it by selling, trading, or giving away.  But more information about giving away marijuana is listed in subsection (b). which reads:

"An offense under Subsection (a) is a Class B misdemeanor if the amount of marijuana delivered is one-fourth ounce or less and the person committing the offense does not receive remuneration for the marijuana;"

So not only must the marijuana be given as a gift without any type of remuneration -- which includes more than merely money -- the marijuana must also be a small amount.

What if a person gives away more than a 1/4 ounce of marijuana as a gift, and receives no remuneration ?  Well, I assume the legislature didn't bother with that scenario, since it would seem uncommon for individuals to be handing out -- for free -- large amounts of marijuana.  But, if a generous drug dealer did happen to be giving away larger amounts of marijuana, the conduct would be covered under the main statute.  Remember, the code makes it illegal to 'Deliver' marijuana in general, and only provides the subsection above to mitigate against very small amounts being transferred.  If you gave away larger amounts, you'd be on the hook for a Delivery of Marijuana offense.

A second interesting subsection makes selling small amounts of marijuana a misdemeanor.  It's a Class A misdemeanor if the amount of marijuana delivered is one-fourth ounce or less and the person committing the offense receives remuneration for the marijuana.

If you end up giving away, trading, delivering, or selling any amount of marijuana more than 1/4 an ounce, the offense is a State Jail Felony, punishable between 6 months in the county jail and up to two years in the State Jail -- day for day credits.  Larger amounts increase the level of felony, all the way up to  first degree felony.