Bad Checks

Sure you can ferret out the slimeballs in our midst? Guess again if you're relying on standard background searches in Texas

Third-party background checks are covered by the Fair Credit Reporting Act. Since deferred adjudication isn't a conviction, any case resolved by it shouldn't be reported after seven years by agencies such as Safe Schools, no matter how relevant the original offense (stealing a camera to film adolescent girls) might seem to the job (working with teenagers).

Katy took the extra step by hiring Safe Schools, but ironically the district missed the chance to see Williford's arrest record by not using DPS.

"There is no way anybody could convince me that the responsibility doesn't fall squarely on Katy ISD," says Rick Hedges. "It's just so mind-boggling to me. That stuff shouldn't happen."

Doug Boehm

Rick Hedges's reaction seems justified, but some criminal justice advocates see the issue a little differently.

"People need to be able to get jobs at some point," says Scott Henson, whose blog, Grits for Breakfast, deals exclusively with the Texas criminal justice system. "Would you prefer they robbed your house?"

Henson thinks far too many jobs are restricted based on criminal history. He's concerned about a 2006 report from the State Auditor's Office that looked at a sample of agencies and found that 26 percent of them had given access to folks who weren't allowed to look at the DPS's secure site.

"It's one thing to run a check and say, 'Has someone been convicted?' " he says. "What this database does is say, 'Have you been arrested?' "

You can get arrested for just about anything. Being found guilty is a whole other matter, and for this reason the state restricts those who can look at arrest records. Unauthorized access only increases the chance of folks being passed over based on their backgrounds, says Henson.

"People's lives are on the line," he says, "and decisions about whether they can find employment and whether they can access servicesÉare based on these databases that are completely out of control and that have grown both in their size and in the types of uses for them beyond what anyone envisioned when they were first created."

Dallasite Rob Sandifer was so concerned about folks being denied employment and housing based on their backgrounds that he helped found the Texas Association for Justice and Legal Reform, an organization devoted to changing the laws concerning deferred adjudication.

"It's not the purpose of our organization to create an environment," he says, "where real, hard-core criminals, people who've committed real acts of violence, get off and go unpunished for their misdeeds." But TAJLR is concerned about the treatment of the estimated two million Texans who've received deferred adjudication as a form of probation.

"Deferred adjudication criminal records are being reported side by side with conviction records," he says, "leaving everyone with the impression that these people were convicted."

Daryl Knowles is a case in point.

After the showdown 15 years ago at City Lights, Knowles did 40 hours of community service in a bookstore, went off to college, got a job and rarely thought about that evening again. That is, until last year, when he tried to get an apartment in Dallas and was told he'd lied when asked if he'd ever been convicted of a felony.

"They refused to refund my deposit," he says, "because they said I'd committed fraud on my application."

Nonplussed, Knowles didn't do anything until the same thing happened later that year at an apartment complex in Austin. He then learned that third-party screeners had been incorrectly reporting the outcome of his case as aggravated assault with a deadly weapon. The Texas DPS has it listed as such -- instead of the charge of reckless conduct.

"You can't throw chicken in a pot and expect beef stew to come out," says Knowles's attorney, Danny Freisner.

Knowles was further screwed when the apartment complexes misread the deferred adjudication as a conviction and took his deposit. (They learned about the case in apparent violation of the Fair Credit Reporting Act.) He now keeps a copy of the original court documents on file.

"I'm still basically serving a sentence," he says.

DPS spokesman Lesko says the department has a legal obligation to report cases resolved by deferred adjudication, although he does acknowledge many landlords and employers might not understand what it is.

"A lot of folks," he says, "find it easier just to not give a person a job than to try to chase down what the facts of the matter are."

Kenneth Schustereit knows all about being denied employment because of a background check.

Thirty-two years ago, he got busted picking up what he thought was scrap metal from a parking lot in Victoria. He had hoped to make nine bucks from the sale of the scrap but ended up getting charged with felony theft. The charge was later dropped to a misdemeanor and he spent 51 days in jail the summer before his senior year.

Life went on. Schustereit joined the Army National Guard and the Army Reserve. He became an electrician. He got involved in local politics. But when he applied for a job at The Home Depot in 2001, he was told he couldn't be hired on account of what was on his background.

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