By Chris Lane
By Jeff Balke
By Aaron Reiss
By Angelica Leicht
By Dianna Wray
By Aaron Reiss
By Camilo Smith
By Craig Malisow
Not so fast.
Fifteen years ago, a 19-year-old Daryl Knowles drove up to City Lights, the unofficial make-out spot of Greenville, Texas, and caught his girlfriend cheating on him with another guy. He shone his headlights inside the car, the paramour got out, and words were exchanged. But their conversation was cut short by the girlfriend, who was out past curfew. So she got home and concocted this tale of Knowles flashing a knife and maybe even hitting the other guy's car from behind, saying whatever she could to get her folks off her back for being late. They believed her, and next thing Knowles knew, he was charged with aggravated assault with a deadly weapon. The charge didn't stand, namely because the district attorney got kicked off the case for being related to the other guy, who also happened to contradict the girl's story, but Knowles ended up with deferred adjudication and six months of probation on the lesser charge of reckless conduct, a class B misdemeanor.
Twelve years ago, a 20-year-old Timothy Williford was arrested for burglary in Gatesville, Texas. He had broken into a house, stolen a video camera and later used it to film adolescent girls through windows, according to an affidavit prepared by the Texas Rangers. Several videotapes were recovered, and Williford told the cops he couldn't control his voyeuristic urges and admitted he masturbated while watching the tapes. The court gave him deferred adjudication for the theft and put him on probation. Despite this history, he still shows up clean in official records.
By now you're probably thinking Williford wasn't the better choice for assistant coach after all. But how were you supposed to know? The online screening service you used was the Texas Department of Public Safety's criminal history conviction database, the repository of criminal records from all 254 Texas counties. You had limited access to the same data used by cops and prosecutors (to find and charge suspects) and by school districts and state agencies (to screen applicants for sketchiness). And that's the problem.
The Texas DPS database is full of mistakes and omissions. According to a compliance report the department released last year, only 71 percent of the criminal history records for 2004 are complete. For 2003, it's only 73 percent. Close to 200,000 records are missing from each of those years, and it's unlikely many older records will ever be put into the system.
On top of that, a recent report by the State Auditor's Office found many unauthorized users with access to the DPS's secure site. These users can see records they shouldn't be looking at, further muddying the integrity of the state's criminal histories.
"The database is corrupt and a piece of garbage," says Scott Henson, a political consultant in Austin. "The thing has just turned into its own animal."
So far this year, the public portion of the Texas DPS criminal history database has been searched a half-million times by coaches, employers and other folks looking for a little peace of mind. A basic search costs three bucks, plus a small processing fee, making it an inexpensive way to find out who's who.
But the DPS relies on individual counties to report arrests and dispositions, or outcomes, and this is the first step in a system wrought with misinformation. Counties have been required by law to hand over their crime records since 1993, yet the mandate was unfunded and many have been slow to rally.
A 2005 compliance report released by the department revealed that Grimes County, for example, had completed only 8 percent of its reporting for 2004. Out of the 646 charges the county submitted, the DPS has a record of only 49 dispositions, meaning the department has no idea what happened in the other 597 cases. For 2003, the numbers are a little better: Out of 712 charges, 107 dispositions have been reported, giving the county a score of 15 percent.
What does all this mean?
Basically, you could get arrested and convicted of a heinous crime in Grimes County and there's little chance someone searching the DPS database would ever find out about it. Public users are allowed to see records only in which the final outcome has been reported, so they wouldn't even know you'd ever been arrested.
Other Houston-area counties aren't doing so great either. For 2004, Liberty County's records are only 45 percent complete. And then it's 51 percent for Waller, 63 percent for Brazoria, 72 percent for Chambers, 76 percent for Galveston, 77 percent for Fort Bend and 81 percent for Montgomery. Harris tops the list at 104 percent, meaning it somehow reported more outcomes than arrests for 2004.
When asked about all the omissions in the system, DPS spokesman Mike Lesko responded, "The quality of the database is strictly up to what's reported."
What he didn't say was "Counties need to get their shit together and start submitting their info."
Public users who rely on the Texas DPS database might be getting their $3 worth, but that's about it. And it's not much better for school districts that use the database as the only source when screening applicants.
In February and March, the Houston Press made public information requests to 63 local school districts, asking for, among other things, each district's policy concerning background checks (see "Needling the Haystack," May 18). Fifty-seven districts responded and said that yes, they indeed do some kind of background check on all employees. (Of the districts that never responded, North Forest made news earlier this year when a janitor with an extensive criminal past was accused of sexually assaulting a student.)
The Press followed up with the responding districts and learned that at least 17 of them rely solely on the Texas DPS database for background checks. They are Brazos, Brazosport, Clear Creek, Columbia-Brazoria, Conroe, Dayton, Devers, East Chambers, Galveston, Hitchcock, Huffman, Liberty, New Caney, Santa Fe, Sweeny, Tomball and Willis.
These school districts have it better than your average Little League coach, since they're eligible for secured access to the database and can see any arrest record that's ever been reported, regardless of whether the outcome is also in the system. This access is meant to tip them off to applicants who might need a closer look, but there's no telling how many arrests never make it to the DPS.
A 2002 audit of 30 counties by the Texas Criminal Justice Policy Council, an independent advisory agency, found more than 88,000 arrests and subsequent dispositions that weren't in the system. Many older arrests will probably never get reported, as counties slow to embrace the digital age are too busy dealing with current convictions to get around to cataloging past ones.
But that's not even the half of it. The Texas DPS database has records from only this state, which means any school district relying solely on it wouldn't learn about a criminal conviction in another part of the country.
In other words, you could murder a kid in Louisiana, do your time, move to Galveston and apply for a job as a janitor in an elementary school -- no worries.
So what's the alternative?
Twenty-six local school districts, including Houston, Cy-Fair, Katy and Friendswood, told us they use Safe Schools for background checks. Founded by a former Dallas ISD administrator, Safe Schools cross-references credit reports and checks criminal records for every place an applicant has lived, leapfrogging the problem of counties not reporting to the DPS.
When the program was started in the late '90s, many school districts weren't doing any background checks at all, says Mark Myers, a spokesman for First Advantage, the company that later acquired Safe Schools. Of the districts that were checking, he says, "99 percent of them were only doing the Texas Department of Public Safety check."
Some 175 Texas school districts now use Safe Schools. Myers says it's one of the best ways to supplement a DPS check, although he does acknowledge there's no "100-percent, iron-clad method" of finding every criminal conviction in the nation.
"You could have a criminal record in a location where you never had a residence," he says. "If I went out this summer and got convicted of assault and battery in Las Vegas, that's never going to be identified by a social security trace."
Another wrinkle appears with deferred adjudication, a form of probation designed to give offenders a second chance by not putting convictions on their records. And this brings us back to Timothy Williford, the guy who got busted 12 years ago for stealing a video camera in Gatesville.
One morning last October, 16-year-old Heather Hedges went into her parents' bedroom and said someone was looking through her window, according to a report filed by her father. Her dad went outside, saw the family cat and assumed the rascal had startled his daughter. But five minutes later Heather was back in his room, crying and saying, "I saw his hands, his eyes and something shiny like a telescope or something." Rick Hedges went back outside and this time saw a large man coming from the side of the house and walking toward the street. When queried as to what he was doing, the man mumbled, "Nothing," hopped in his Suburban and took off, but not before Rick memorized his license plate.
Heather went to classes at Cinco Ranch High School later that day, unaware the alleged peeper, one Timothy Williford, worked in the school as a special education teacher and football coach. Williford eventually resigned when the dots were connected. He was charged with disorderly conduct for the incident. A further charge of tampering with a government record was later added, since he had declined to mention the Gatesville incident when he applied for the job.
But here's the thing: Before being hired by Katy ISD, Williford tried to get a job at Fort Bend ISD and was denied after district officials found the Gatesville arrest in the secure portion of the Texas DPS database. (No record of the arrest shows up in the public portion, the part used by sports coaches and various employers, because Coryell County apparently never reported the final outcome of the case to the DPS.) Katy ISD didn't know about his arrest, though, since the district relies solely on Safe Schools, which found the record but was prohibited from reporting it.
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."
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.
ChoicePoint, an Atlanta-based data company, had reported his misdemeanor as a felony and told The Home Depot he'd served seven years in prison. ChoicePoint says it got the bad data from the Texas DPS; the department admits it had Schustereit's conviction misclassified, but "the seven-year prison stint was not of our doing," says Lesko. "It is not reflected anywhere in our records."
By the time Schustereit got ahold of his original disposition, The Home Depot had already found someone else for the job.
"I've got two honorable discharges and a service citation for serving my country," says Schustereit, "and they won't let me sell wire nuts to the public at Home Depot." He says he fell into a depression after the incident, further compounded by a thyroid problem that went untreated because of a lack of insurance. "It's just been very hard on me."
Over the past three years, the DPS reports more than a quarter-million dollars in revenue from the sale of criminal histories to third-party vendors such as ChoicePoint. The DPS knows these records are incomplete, but it passes them along anyway. These data are then mixed with records from other sources, often being grouped solely on the basis of a name rather than a fingerprint match, and third-party vendors sell the information to employers and landlords, promising a more thorough check than the competition.
Criminal histories bounce around the Internet in an almost viral fashion, making it especially hard to track down exactly where mistakes are introduced. There's also no guarantee a correction is going to follow the same path. When Schustereit contacted the DPS about getting his record corrected, he says he was told he'd have to contact hundreds of third-party vendors individually and send them a notarized copy of his disposition.
"If you had something on your Experian credit, you'd write and you'd challenge it," says Daryl Knowles, who went through the same rigmarole, "but with these criminal background companies there seems to be no recourse."
Thanks to the Texas DPS criminal history database, good people have been labeled bad and bad people have been labeled good, and neither of these options is good for anybody but the baddies. Part of the fault lies with county clerks and database end users, but as the official hub for the state's criminal history information, there's no way the DPS can duck all the blame.
In its official response to the 2006 report by the State Auditor's Office, the department said, "We have recognized that the ever increasing use of the criminal history data for licensing, employment, volunteerism, and other 'non-criminal justice' purposes naturally creates a corresponding responsibility for controls over those entities. Our limited resources have prevented an adequate response to this rising need."
Ten years ago the DPS wouldn't have been held to such high standards, but now that you can Google your rooftop in seconds, folks have come to expect accuracy when they hop online and look up criminal histories. They have faith a background check sponsored by a state agency will contain all the relevant info. They have faith the system works.
And it doesn't.