CRIMINAL ID THEFT: Taking the First Steps to Resolve It

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1 CRIMINAL ID THEFT: Taking the First Steps to Resolve It A program of the Texas Legal Services Center supported by Grant No VF-GX-K032 awarded by the Office for Victims of Crime, Office of Justice Programs, U.S. Department of Justice. Points of view in this document are those of the author and do not necessarily represent the official position or policies of the U.S. Department of Justice.

2 Becoming a victim of identity theft is awful, but finding out that you are a victim of criminal identity theft is unimaginably frightening. This packet of materials will help you to understand criminal identity theft and guide you through the steps necessary to clear your record. Work through these additional materials as you work through the Victim's Toolkit. It is critical that you get a copy of your credit report and place a fraud alert on your credit history because the impostor that has enough information to convince the police that you have committed a crime has enough information to open bank accounts or get credit cards in your name. Included in this packet are: 1. Fact Sheet from the Identity Theft Resource Center that discusses general strategies for dealing with criminal identity theft. 2. A copy of the Federal Trade Commission's fraud affidavit. Fill out the fraud affidavit and sign it in front of a notary public. Make several copies and attach a copy of your fraud affidavit and a copy of your driver's license to every letter that you send regarding your criminal identity theft. 3. A Texas Department of Public Safety affidavit requesting a change of drivers license or ID card number. Fill it out, sign it in front of a notary public, make a copy for yourself, and take the original in person to the nearest DPS office. They will void your old drivers license or ID number and issue you a new one. 4. A synopsis of Texas laws relating to Criminal Identity Theft. 5. Instructions for establishing a Stolen Identity File in the Department of Public Safety database. 6. Form application for requesting a court determination of identity theft. Texas District Courts can declare a person to be a victim of identity theft and issue a court order that a victim can show to businesses or law enforcement as proof. Use this as a last resort because it requires you to pay a filing fee or prove that you are indigent to avoid paying the fee and attend a hearing in front of the judge to prove that you are a victim. 7. Fact Sheet from the Federal Trade Commission explaining your right to get a copy of your credit/criminal history report from a potential employer. 8. Materials from the Texas Partnership for Legal Access explaining expungement of criminal records in Texas. VICARS is here to help you. If you have questions about using our materials, or if you would like the assistance of an attorney in restoring your identity, please call us at

3 Texas Laws Relating to Criminal ID Theft Stolen Identity File: Texas Code of Criminal Procedure Art Information Related to Misused Identity When contacted by a police or sheriff's department regarding an identity theft, the Texas Department of Public Safety shall make a notation in the state criminal history database that the victim's identity was stolen and used as an alias in the commission of a crime and shall separate the victim's identifying information from that of the impostor. Law enforcement officers call this a "Stolen Identity File." Texas Code of Criminal Procedure Art Duties Regarding Misused Identity When a police or sheriff's department receives information showing that a person's identifying information was falsely given by a person arrested as the arrested person's identifying information, they shall notify the identity theft victim that his or her identifying information was misused by an impostor, give the victim instructions for establishing a stolen identity file with the Department of Public Safety, notify the victim of his or her right to expunction of records, and notify the Department of Public Safety. Texas Government Code Information Regarding Fraudulent Use of Identification To establish a stolen identity file with the Department of Public Safety, a victim must sign a declaration stating that his or her identity has been used by an impostor to frustrate law enforcement without the victim's consent. This declaration is made available by the sheriff's department and district attorney's office where the victim lives. The declaration is filed with the Texas Department of Public Safety. The contents of the declaration are: victim's name, social security number, driver's license number, date of birth, and any other identifying information requested; statement that the victim's personal identifying information has been used by another person to frustrate law enforcement (must be specific about the identifiers that were used); and a name, word, number, letter, or combination of 30 or fewer characters chosen by the victim that will be used as a password. The stolen identity file must be made available to authorized users of the criminal history database. Expunction of Records: Texas Code of Criminal Procedure Art Right to Expunction A victim of criminal identity theft may have criminal records expunged (removed) if the victim can prove that a person arrested for a crime gave the victim's identifying information to law enforcement without the victim's consent and the only reason for the criminal record is that the impostor falsely gave the victim's identifying information to law enforcement.

4 If you are interested in having your records expunged please contact VICARS. ID Theft Declaration: Texas Business and Commerce Code ( , et seq.). Court Order to Declare Individual a Victim of Identity Theft. A person may request that a civil court declare the person to be a victim of identity theft. This law is useful when a victim has been unable to restore his or her credit because creditors and credit reporting agencies do not believe that the person is truly a victim of identity theft. It can also help those who have been victims of criminal identity theft and are unable to resolve issues with law enforcement. To obtain a court order declaring that a person is an identity theft victim, the individual must file an application in a civil district court. The court holds a hearing in which the victim produces evidence of the identity theft. If the evidence is sufficient, the court can execute an order declaring the person to be an identity theft victim. The victim may request that the records of the proceeding be sealed. Courts charge fees to file the application. Each county has a different fee schedule, and individuals with very little income can request that the fee be waived. Because obtaining a declaration requires filing an application in District Court, gathering proof in admissible form, and attending a hearing, this procedure may not be time effective or cost effective for some victims.

5 INSTRUCTIONS FOR GETTING A STOLEN IDENTITY FILE 1. Gather all the documents and other information that you have regarding your stolen identity and the crimes that you believe another person committed using your name or other personal information. 2. Gather all the documents and other information that you can that will prove that you could not have committed the crime(s) committed by the impostor. 3. Go to your local police or sheriff's department. Take the documents and information you have gathered in steps 1 and 2 with you. Tell an officer that you are a victim of identity theft and that you want to do two things: make a report of identity theft and set up a stolen identity file with the Department of Public Safety. 4. The police officer or sheriff's deputy will: a. Take your report; b. Ask you to fill out and sign a fraud affidavit that describes your identity theft and asks you to designate a password for your file; c. Take your photograph; d. Take your fingerprints; and e. Give you a letter or form that says you have made a report of identity theft. 5. The police officer or sheriff's deputy will make a short investigation to verify that you are a victim of identity theft and that you did not commit the crimes that the impostor committed using your name or personal information. Then, the police officer or sheriff's deputy will give you a letter of clearance that says you did not commit the crimes, and s/he will forward a copy of everything to the Texas Department of Public Safety (DPS). This will allow the DPS to set up a stolen identity file. Keep your letter of clearance with you at all times. Keep a copy in the glove compartment of your car. If you get stopped by law enforcement, show them the letter. They will ask you for your password. Give it to them, and they will be able to access your stolen identity file. This is the basic procedure outlined in the Texas statutes. Each police or sheriff's department may be a little different. Do not allow yourself to get frustrated. Be patient and polite and follow the directions given to you by the officer who is taking your report. If you, or your investigating officer, have any questions, please call VICARS at