Juvenile Vs. Criminal Law

April 11th, 2012

By Martin Miller

The fundamentals of the two systems of justice — juvenile and criminal law — can be found principally in three different Texas codes. The juvenile system is outlined in the Texas Family Code, and the criminal system can be found primarily in the Texas Penal Code and the Texas Code of Criminal Procedure.

The two systems have basic similarities, including the right to receive Miranda warnings, the right to be free from self-incrimination, the right to an attorney during critical court proceedings and plea bargaining, the right to a jury at the delinquent/not delinquent or guilty/not guilty stage of a trial, the requirement that the state prove its case beyond a reasonable doubt, pretrial detention, community supervision (probation), community service hour requirements and restitution when appropriate.

Differences in the two systems mainly exist because of the distinction in their purposes. The juvenile system’s principal function is to protect and rehabilitate a delinquent child, while it can be argued that the main goal of the adult systems is to punish a guilty offender.

Even the terminology created for the juvenile system is one based on civil rather than criminal standards. A juvenile is referred to as a respondent, not as a defendant. A juvenile is alleged to have committed a delinquent act rather than a criminal offense. A juvenile is generally not charged by an indictment or information; he or she is brought before a juvenile court by the filing of a petition. A juvenile is not arraigned in court at his or her first appearance, but is instead held to appear for a detention hearing. While a juvenile is detained and adjudicated, an adult is arrested and convicted.

Age determines the jurisdiction of a juvenile court while the type of offense determines the jurisdiction of a criminal court. Juvenile court procedures are usually informal and may be held privately, while criminal court procedures are more formal and open to the public. Identifying information about a juvenile, as a rule, cannot be released to the media, while information about an accused adult offender is considered public information. In the juvenile system, parents/guardians are encouraged and sometime required to be involved in their child’s rehabilitation, but not so in the adult system. A juvenile may be released into the custody of a parent/guardian while an adult will typically be required to post bail.

Under most circumstances, a juvenile’s adjudication/disposition records will be eligible for sealing, while for an adult there are only limited circumstances in which an expunction or order of non-disclosure may be granted. A juvenile who is certified as an adult cannot be sentenced to death for a capital offense that occurred before the juvenile was 18 years of age. Finally, the juvenile court’s main objective is to focus on the best interests of the child in determining what services or protections are needed to benefit the juvenile, while the criminal court generally focuses on invoking a punishment proportionate to the crime.

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Suing drunk drivers…and the bars that served them

April 11th, 2012

By Randy Turner

Last year more than 10,000 Americans were killed by drunk drivers. Thousands more suffered catastrophic injuries. Of course, the victim or the victim’s family has a legal claim against the drunk driver, but what happens if the drunk driver doesn’t have liability insurance or has insurance but the policy limits aren’t enough to adequately compensate the victim? (Texas law only requires drivers to carry minimum limits of $30,000 per person). If the drunk driver happened to be on the job at the time of the accident then the victim may also have a claim against the employer. The victim should also look to his or her own automobile insurance policy for “uninsured/underinsured motorist” coverage. This insurance pays when a negligent driver either didn’t have any insurance or didn’t have enough. An experienced personal injury attorney will also investigate the possibility of bringing an action against the bar or establishment that served or sold alcohol to the drunk driver.

Texas Dram Shop Law

Dram shop laws are laws that allow a person who is injured by a drunk driver to bring a claim against the bar, restaurant or person that sold alcohol to the drunk driver before he got on the road. In 1987 the first Texas Dram Shop Act was signed into law as Section 2.02 of the Texas Alcoholic Beverage Code. It provides that a person or business is liable for providing, selling or serving an alcoholic beverage to someone if it was “apparent to the provider” that the person was “obviously intoxicated to the extent that he presented a clear danger to himself and others” and his intoxication was a proximate cause of the damages suffered.

Proportionate responsibility

In 2007 the Texas Supreme Court ruled that a business that sells alcohol to a drunk driver is only liable for damages based on its proportion of responsibility. In F.F.P. Operating Partners v. Duenez a convenience store sold a 12-pack of beer to an obviously intoxicated man who then drove his car in the wrong lane and collided head-on with the Duenez family’s car. The family sued the drunk driver, the store and the store clerk. The Supreme Court held that the store’s liability is determined by the percentage of responsibility that the jury assigns to the store. For example, if the jury finds that the drunk driver was 70 percent responsible for the accident and the store was 30 percent responsible, then the store is only liable for 30 percent of the damages caused by the wreck. However, if the jury finds that the store is 51 percent responsible or more, then the store is liable for all of the damages.

Conclusion

Drunk drivers cause thousands of tragic injuries and deaths each year and often do not have enough insurance to adequately compensate their victims. Sometimes an irresponsible bar, restaurant or store provided the alcohol that caused the driver to become intoxicated. The Texas dram shop law gives an experienced personal injury attorney the ability to hold alcohol providers legally accountable for their negligence and make them pay for the damages caused by drunk drivers.

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Recent Changes in Texas Criminal Law

November 8th, 2011

By Cole Fulks

The 82nd Texas Legislature convened in January 2011, and began making changes to various Texas laws. Those changes became effective September 1, 2011. Some of those changes include:

House Bill (H.B.) 351 and Senate Bill (S.B.) 462 made changes to the process of expunging (sealing) criminal records. Expunging the record happens when an individual is accused of or charged with a crime but ultimately not convicted of that crime. Reasons for this range from the charges never being brought after arrest or the case being dismissed to the accused individual being found not guilty at trial. The new law reduces the waiting period previously required before expunging that person’s record. Now, instead of waiting until the statute of limitations (deadline) on the offense alleged has expired, applicants now only have to wait six months to a year for most offenses, or three years if the offense was a felony, before requesting that their criminal record be expunged. In some instances, there is no waiting period at all.

The state legislature in 2011 examined the tragic reality of human smuggling and trafficking in Texas. H.B. 260 created a separate office for human smuggling and made it a felony crime. H.B. 3000 created an offense for multiple instances of trafficking, and H.B. 2329 gave victims of human trafficking the right to ask for protective orders.

Identity theft, a growing problem in the age of cashless transactions, received legislative attention as well. H.B. 1215 now makes it easier to prosecute people for the use of credit/debit card “skimming” machines or telephoto lenses used to illegally obtain financial information.

Drug dealers have increasingly turned to the manufacture of cocaine, LSD and methamphetamine-like substances derived from chemicals commonly used in the making of bath salts. Texas law now prohibits the possession of bath salts or chemicals related to the making of bath salts, and makes possession of them a felony crime. Possession or manufacture of marijuana-like substances, known as “Spice” or “K-2,” is now also a felony crime in Texas under S.B. 331.

One of the unfortunate realities of underage drinking is fatal alcohol poisoning. H.B. 3474 and S.B. 1331 addressed the issue, providing immunity from criminal prosecution for minors seeking emergency medical help and for persons summoning emergency medical help for potential alcohol overdose situations, if the overdosing minor remains on-scene and co-operates with offered medical assistance and law enforcement investigation. S.B. 407 created a new offense of “sexting” for minors (the sending/receiving of sexually explicit images by mobile telephones). Provisions were added for frequent offenders, as well.

In other areas of interest, laws pertaining to cockfighting received legislative attention, by the passing H.B. 1043 and creating of a separate offense (as opposed to the existing offense of cruelty to animals) so that now the practice can be prosecuted as a felony crime.

Texas also made some changes in the laws involving recreational boating, fishing and hunting. H.B. 1806 now makes it a crime for someone to alter the length or weight of a fish to affect the outcome of a fishing tournament. This misdemeanor crime can become a felony if the tournament prize exceeds a value of $10,000. Boaters are now allowed under H.B. 25 to carry a weapon, including a firearm, on a personal watercraft as long as the weapon is hidden from plain view and the person carrying the weapon is not engaged in a crime, a member of a gang or is otherwise not prohibited from having a firearm. This new law also makes it clear that it is legal to carry weapons while hunting, fishing or engaging in other similar sports, or when traveling to where the event will be taking place.

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Three Reasons to go to Trial, or Why Going to Trial May be Your Best Option

August 31st, 2011

By Kristie Williamson

OK, most of us have seen “Matlock,” “Perry Mason” and, of course, a defense favorite, “My Cousin Vinny.” But in reality, how often do trials go the way you as a client or we as defense attorneys want? The result defendants and defense attorneys want is a resounding 10-minute verdict of NOT GUILTY. Additionally, we would like an apology from the prosecutor for putting our client’s freedom in jeopardy and creating irreparable damage to their reputation, livelihood, and physical and mental health. However, those of us who choose to do battle with the dark side on behalf of our clients know that the sweet taste of victory is like nothing else in the world and we would like to see each one of our clients receive that kind of justice. So when faced with the option of choosing between the lesser of two evils — a guaranteed plea bargain the client does not really want or the risk of going to trial — what is a client to do?

First and foremost, as a defendant you need an aggressive, competent professional to be your advocate. As you know, hiring a lawyer is one of the most important decisions you will make if you are the target of a false accusation. Once you have proper representation, you can then make an educated and informed decision with your lawyer about your second most important decision — to go to trial or not.

With the public’s often archaic view of defense attorneys (thank you CNN and Nancy Grace) coupled with the modern demonization of winning at trial (again, thank you Nancy Grace, Casey Anthony and O.J. Simpson), exercising your right to have the state prove your guilt has never come under fire as it has today. Throw in the uncertainty of potentially going to jail or prison and the decision to exercise our civil rights is sadly becoming extinct.

So, in my opinion what are the three reasons for choosing going to trial? One: principle. Yes, that’s right, simply for the principle of the matter. You are falsely accused and you are innocent! Under the Texas and United States Constitutions you have a Sixth Amendment right to a fair trial. You have a right to a speedy trial. You have the right to face your accusers and compel witnesses to testify on your behalf. Under the Fifth Amendment, you have a right to not be a witness against yourself. That means the state cannot force you to testify against yourself. So, go ahead and tell your lawyer everything and let him or her help you. That is a very powerful reason; however, it’s only reason number one.

Two: you have a good case and the risk of losing is outweighed by the strength of your case. What is a good case is something you and your lawyer will have to decide together. It usually means a combination of sound legal arguments and good facts on your side. For instance, purely hypothetically, say you are accused of possessing a handgun. The state’s evidence consists of a handgun and an allegation that you fired the gun. The handgun has no fingerprints or DNA on it. Your hands were tested and no gunshot residue was found to be present. Furthermore, the state has no witnesses to testify you were ever in possession of the gun. The lack of evidence — no prints, DNA or gunshot residue — can all be used in considering reasonable doubt. Reasonable doubt equals a NOT GUILTY verdict. Additionally, no witness to place the handgun in your possession is a good legal argument for a judgment of acquittal by the judge. In the above hypothetical case, one may conclude that you have a good case.

Third: you have nothing to lose. Unfortunately, we sometimes encounter prosecutors who choose not to make a reasonable offer — for instance, if you are charged with a third-degree felony where the maximum penalty is 10 years and the offer is 10 years. You can’t do any worse by going to trial, so why not take your chance and roll the dice. Sometimes, in high-profile cases, the prosecutor may not make any offer in an effort to appear tough on crime. In those cases, you are essentially forced to go to trial. There are several other scenarios where it may seem that the offer is essentially a life sentence to the defendant and those concerns need to be discussed with your lawyer.

I have spoken about rolling the dice and taking chances with a very serious consequence — your freedom. False accusations and the severe damages that come as a result of loose allegations are never a game, however. That is why it is so incredibly important to even out the odds by hiring an experienced attorney. The state may think it holds all the cards, but they do not have the final say. Here at Bailey and Galyen we put our clients’ needs first and are willing and able to help you navigate your legal minefield. So, when you make the decision to go to trial, you will have the best team to get you the best result.

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Traffic Tickets in Texas and Why You Should Not Just Pay the Fine

August 31st, 2011

by John Robinson

Many people consider traffic tickets and their associated fines just part of life. Some people just pay the fine without a second thought. If a person rarely gets a ticket, this may not be that big of a problem. However, as little as two tickets in three years can become a big problem. Not only do traffic violations have an impact on a person’s automobile insurance, they can also get a driver’s license suspended before the person realizes it is going to happen.

The Texas Transportation Code provides for the “Driver Responsibility Program” in Chapter 708. This is essentially a tax and penalty system that applies to a driver upon a certain number of moving violations within a fixed time period via a “point” system. The State of Texas began keeping track of points for all traffic convictions after September 1, 2003.

Basically, the Driver Responsibility Program creates a “point” system that applies to each traffic violation conviction a person receives. Two points are recorded for a moving violation conviction in Texas or from another state. Three points are recorded if the violation involved an accident. Non-moving violations, such as driving without a seat belt, having an expired inspection, having an expired registration and equipment violations, do not accrue points. Once a driver reaches six points within a 36-month period, a surcharge (code word for penalty) is applied. This surcharge is $100 for the first six points and $25 for each additional point. This surcharge must be paid to the Texas Department of Public Safety each year for three years. If you do not pay surcharge, the Department of Public Safety automatically suspends your driver’s license.

Certain offenses are treated more seriously. If you receive a single conviction of Driving While License Suspended (DWLS) or No Financial Responsibility (No Insurance), the point system doesn’t apply — you owe a surcharge of $250 per year for three years. Driving with No Valid Operators License (No DL) will also result in a surcharge of $100 per year for three years.

Points only apply to convictions. This is why it is very important to try to get your ticket dismissed or get deferred adjudication. Even though a deferred sentence involves a fee paid to the city in which the violation occurred, the ticket does not result in a conviction. Only convictions are sent to the Department of Public Safety to be entered into the system for points.

At Bailey and Galyen, we strive to avoid a conviction on each traffic ticket that we represent in court. If you are charged with a traffic offense, call Bailey and Galyen to minimize the damage.

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Traffic Laws You Should Know

July 27th, 2011

The rules of the road in Texas are governed primarily by the Texas Transportation Code.  This is the law, along with city ordinances, that police officers are trained to enforce.   The only review of these laws for most Texas drivers was in their driver’s education course.  Below are some of the traffic laws that are violated in very high numbers simply because drivers do not know that they are the law.

 

1.  WIDE RIGHT TURN.  In this situation you are approaching an intersection with the intent to make a right turn.  The street you are turning onto has several lanes going each direction.  Many drivers will swing out and turn into the first or second lane toward the center of the road.  This is a legal violation that law enforcement refers to as a “wide right turn”  The Transportation Code provides:

Sec. 545.101. TURNING AT INTERSECTION. (a) To make a right turn at an intersection, an operator shall make both the approach and the turn as closely as practicable to the right-hand curb or edge of the roadway.

As you can see, you are required to turn “as closely as practicable” into the lane nearest to the right hand curb or edge of the roadway.  The “practicable” exception could be if you were pulling a trailer and could not make the turn without going into the center or left lane to complete the turn.

 

2.  TURN SIGNALS:  In this situation you approach an intersection with the intent to turn right.  However, you do not turn on your signal until you are at the intersection.  This is a Fail to Signal violation as the Transportation Code requires that you signal your intent to turn at least 100 feet before inititiating the turn.  The Transportation Codes states:

Sec. 545.104. SIGNALING TURNS; USE OF TURN SIGNALS. (a) An operator shall use the signal authorized by Section 545.106 to indicate an intention to turn, change lanes, or start from a parked position.

(b) An operator intending to turn a vehicle right or left shall signal continuously for not less than the last 100 feet of movement of the vehicle before the turn.

Interestingly, the 100 foot requirement only applies to turns and not lane changes.  Although you are required to signal you intent to change lanes, the law is silent on how long before the lane change your signal must be given.

 

3.  FOLLOWING TOO CLOSELY:  This is one of the most difficult to assess violations in the Texas Transportation Code.  The law reads as follows:

Sec. 545.062. FOLLOWING DISTANCE. (a) An operator shall, if following another vehicle, maintain an assured clear distance between the two vehicles so that, considering the speed of the vehicles, traffic, and the conditions of the highway, the operator can safely stop without colliding with the preceding vehicle or veering into another vehicle, object, or person on or near the highway.

 

This broadly written  law puts law enforcement in the position of making a judgment call on if your vehicle is too close to the one in front of you. The best advice is always keep several car lengths of distance between you and the car in front of you.

 

4.  DRIVING ON SHOULDER:  You are approaching a slower vehicle on a two lane road.  You want to pass this vehicle but there are cars in the opposite lane of traffic that won’t allow you to pass on the opposite lane of traffic. You then proceed to pass on the shoulder.  This is a violation of the law.

 

Sec. 545.058. DRIVING ON IMPROVED SHOULDER. (a) An operator may drive on an improved shoulder to the right of the main traveled portion of a roadway if that operation is necessary and may be done safely, but only:

(1) to stop, stand, or park;

(2) to accelerate before entering the main traveled lane of traffic;

(3) to decelerate before making a right turn;

(4) to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn;

(5) to allow another vehicle traveling faster to pass;

(6) as permitted or required by an official traffic-control device; or

(7) to avoid a collision.

The law does not allow you to pass on the shoulder unless the car you are passing is disabled or slowing in the lane of travel to turn left.  However, the slower car is allowed to use the shoulder to allow you to pass in the main lane of travel. You can use the shoulder to slow down before making a right hand turn.  Finally, you may use the shoulder when required to avoid a collision.

 

5.  PASSING EMERGENCY VEHICLE.   This law was passed in 2003 and has drawn the ire of many motorists.  In this scenario you are driving down the highway in the right lane when you notice a police car with his emergency lights on that has another driver stopped on the right hand shoulder.  You continue in the same lane at the same speed as you pass the police vehicle.  You have violated the law.  The law states:

Sec. 545.157. PASSING AUTHORIZED EMERGENCY VEHICLE. (a) On approaching a stationary authorized emergency vehicle using visual signals that meet the requirements of Sections 547.305 and 547.702, an operator, unless otherwise directed by a police officer, shall:

(1) vacate the lane closest to the emergency vehicle when driving on a highway with two or more lanes traveling in the direction of the emergency vehicle; or

(2) slow to a speed not to exceed:

(A) 20 miles per hour less than the posted speed limit when the posted speed limit is 25 miles per hour or more; or

(B) five miles per hour when the posted speed limit is less than 25 miles per hour.

This law requires you, when on a road with two or more lanes traveling in the direction of the emergency verhicle, to put a lane between you and the officer if you are going to maintain your speed.  If you are on a two lane road or remain in the lane next to the officer, you must slow to a speed 20 miles per hours less that posted speed if the speed limit is 25 or more.

.           The above are just a few of the most often violated portions of the Texas Transportation Code.  Reviewing the laws periodically will certainly give you the knowledge to better understand what violations law enforcement are looking for.

 

 

 

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What Every Parent Should Know About Possessing Marijuana In Texas

July 12th, 2011

by Chris Hesse

Parents beware! It is amazingly easy for your child to be arrested for possessing marijuana. Some of you may already be saying, “My child does not use marijuana, so I don’t need to be afraid of this.” To those of you who are thinking this, I say it doesn’t matter if your child uses marijuana or not.

The simple fact is that marijuana usage among teens is a very common thing. Many junior high and high school kids use marijuana. Some marijuana users may appear obvious; for example, the way a kid dresses or acts may be an indicator. Other marijuana users may be a complete surprise to many adults. These other users may be part of the “jock” crowd, or “popular” or “preppy” crowd. The main point is that an adult can’t entirely be sure.

Because we, as adults, can’t be sure that one kid is using marijuana versus another, we must educate our children on what to do if they even suspect that someone has or uses marijuana.

Imagine this. Your child gets a ride home from school from a classmate. Your child doesn’t know this classmate very well. The classmate gets pulled over for a traffic violation. Let’s say that the officer smells marijuana or, after patting down the driver for any possible weapons, finds marijuana on the driver. It is at this point that the officer searches the car for any other contraband. If the officer finds any other drugs in the car, every one of the occupants will get arrested. Why? Because theoretically, the marijuana found in the car is within everyone’s reach, and that’s probable cause to arrest all occupants. Now you must bail out your child and hire an attorney to defend him or her in court. Whether your child truly possessed marijuana is a matter for the courts and your attorney to hash out. The main point is that the heartache has already begun.

Also imagine that your child goes to a house party. You believe that this party is monitored by adults, but you come to find out when your child arrives that there is no adult there. In addition, your child discovers while at the party that some people there are smoking marijuana, or your child can see a marijuana pipe or actual marijuana on a coffee table. Officers arrive to respond to noise complaints and someone lets them in. They see the marijuana on the coffee table. Now at this point, everyone in the room will get arrested for possessing marijuana, possibly the whole house. Again, theoretically, the marijuana found on the coffee table is within most people’s reach or control. Now you must bail out your child and hire an attorney to defend him or her in court. Whether your child truly possessed marijuana is a matter for the courts and your attorney to hash out.

Parents, you don’t want to experience this heartache. Tell your kids that if they even suspect that marijuana is present, leave immediately. In the first scenario, the driver may have said to your child that they like marijuana or have it on them, or your child may simply have smelt it. If this is the case, he or she should tell the driver to stop and get out immediately. In the second scenario, if your child even suspects marijuana is present, he or she should leave immediately.

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Engaging in Organized Crime

July 8th, 2011

by Martin Miller

A person commits an organized crime offense if he or she commits or conspires to commit one or more of the following, with the intent to establish, maintain or participate in a combination or in the profits of a combination or as a member of a criminal street gang: murder, capital murder, arson, aggravated robbery, robbery, theft, credit card abuse, aggravated kidnapping, kidnapping, aggravated assault, aggravated sexual assault, sexual assault, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle or unauthorized use of a motor vehicle.

“Combination” means three or more persons who collaborate in carrying on criminal activities even if:

  1. the participants may not know each other’s identity;
  2. membership in the combination may change from time to time; and
  3. participants may stand in a wholesaler-retailer or other arm’s-length relationship in illicit distribution operations.

“Conspires to commit” means that a person agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense and that person and one or more of them perform an overt act in pursuance of the agreement. An agreement constituting conspiring to commit may be inferred from the acts of the parties.

Example

Joe and three of his friends — John, Scott and Phil — all work at different stores in the local mall. The guys come up with an idea to steal items from the stores where they work. They collect credit card numbers from people who shop at the stores, and use the numbers at each other’s stores to steal merchandise. They each figure if they use the numbers at different stores, they will not get caught. The scheme works for a while, but they forget about the security cameras in each of the stores. The credit card charges are reported as unauthorized, and the security cameras are checked to see who made the purchases on the credit card numbers on the questionable dates. The guys are all arrested for credit card abuse. The charge is then enhanced to engaging in organized crime, which increases the punishment possibility by one level. The credit card abuse offense is a state jail felony offense with a possible punishment of up to two years in state prison and a fine up to $10,000. The new charge, engaging in organized crime, is a third-degree felony offense and the punishment possibility for the guys goes up to 10 years in prison and a $10,000 fine.

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Steps After Being Arrested

June 27th, 2011

by Martin Miller

Being arrested, or having a loved one arrested, is one of the most stressful and frightening things that you could imagine. I want to provide you with some steps to assist you should you need to help a friend, coworker or family member get out of jail. First, locate which jail facility this person has been transported to. For example, Southlake, Keller, Westlake and Colleyville all use the Keller jail facility. Fort Worth utilizes the Mansfield jail facility.

Second, contact the jail with the person’s name and date of birth and ask whether or not the magistrate or judge has been contacted to set the bond amount. Keep in mind that the booking-in process can take time, depending on the facility. In some cases it can take up to a day for a person to be booked into jail and have a bond set by the judge.

For a first-time DWI with no contact with law enforcement, the bonds usually range from $500 to $1,500. But, I’ve seen a first-time DWI bond set as high as $5,000.

Third, contact a bail bonding agency with the person’s name, date of birth and bond amount if set, and inquire about an estimate. Typically, the price to bond someone out of jail should be around d 15–20 percent of the bond amount. If the bond set is high, you could contact a criminal defense attorney to request a bond reduction. Some criminal defense attorneys have the ability to post attorney bonds for their clients as well.

You may not need to contact a bail bonding company if the arrestee wants to post a cash bond or is going to sign a Personal Recognizance (PR) bond. Jails allow people to bond themselves out of jail using a credit card or by having someone post a cash bond. There is also a bond called a Personal Recognizance bond that some jails offer depending on the severity of the case. A PR bond is an agreement stating that the arrestee agrees to check into the criminal court on a specified date.

For juveniles, there is a different procedure. If your child (ages 10–16) has been arrested, the police department occasionally notifies the parent to come pick up the child at the police station, or the police department would transport the child to the local juvenile detention facility. You cannot post bond for juveniles. The juvenile judge is required to hold a detention hearing, and at least one family member should appear at the hearing. Contact the juvenile facility, court coordinator or the pre-court probation officer assigned to your child’s case to inquire about the hearing date. The juvenile detention facilities do have visiting hours, so call the facility to obtain that information as well.

After bonding out of jail, the police department forwards the case information to the local district attorney’s criminal intake division and the assistant district attorney will decide whether or not to file a case on behalf of the state of Texas. Depending on the county, criminal cases are filed within 60 or 90 days. But I have seen cases that have taken more than a year before they were filed.

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Can You Get Your Record Expunged?

June 27th, 2011

by Justin Dinsdale

An expungement proceeding is a type of lawsuit in which a first-time offender convicted of a criminal act seeks that the records of that earlier conviction process be sealed, thereby making the records unavailable through the state or federal repositories. If successful, the records are said to be “expunged.” Black’s Law Dictionary defines “expungement of record” as the “Process by which record of criminal conviction is destroyed or sealed from the state or federal repository.”  While expungement deals with an underlying criminal record, it is a civil action in which the subject is the petitioner or plaintiff asking a court to declare that the records be expunged.

A very real distinction exists between an expungement and a pardon. When an expungement is granted, the person whose record is expunged may, for most purposes, treat the event as if it never occurred. Rather, it constitutes forgiveness. In the United States, an expungement can be granted only by a judge, while a pardon can be granted only by a governor (for state law offenses) or the president (for federal offenses).

Each jurisdiction whose law allows expungement has its own definitions of expungement proceedings. Generally, expungement is the process to “remove from general review” the records pertaining to a case. In many jurisdictions, however, the records may not completely “disappear” and may still be available to law enforcement, sentencing judges on subsequent offenses and corrections facilities to which the individual may be sentenced on subsequent conviction.

Who can get a court record expunged?

Eligibility for an expungement of an arrest, investigation, detention or conviction record will be based on the law of the jurisdiction in which the record was made. Ordinarily, only the subject of the record may ask that the record be expunged. Often, the subject must meet a number of conditions before the request will be considered. Some jurisdictions allow expungement for the deceased.
Requirements often include one or more of the following:

  • Fulfilling a waiting period between the incident and expungement;
  • Having no intervening incidents;
  • Having no more than a specified number of prior incidents;
  • That the conviction be of a nature not considered to be too serious;
  • That all terms of the sentence be completely fulfilled;
  • That no proceedings be pending;
  • That the incident was disposed without a conviction; or
  • That the petitioner completed probation without any incidents.

Types of convictions that are often not eligible for expungement include:

  • Felonies and first-degree misdemeanors in which the victim is under 18 years of age
  • Rape
  • Sexual battery
  • Corruption of a minor
  • Sexual imposition
  • Obscenity or pornography involving a minor

In some jurisdictions, all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person’s detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system can be expunged. Each state sets its own guidelines for what records can be expunged or for whether expungements are available at all. The petitioner requesting an expungement of all or part of their record will have to complete forms and instructions to submit to the appropriate authority. The petitioner may choose to hire an attorney to guide them through the process, or he or she can decide to represent themselves. This is called appearing pro se.

Most jurisdictions have laws that allow, or possibly even require, the expungement of juvenile records once the juvenile reaches a certain age. In some cases, the records are destroyed; sometimes they simply are “sealed.” The purpose of these laws is to allow a minor who was accused of criminal acts or, in the language of many juvenile courts, “delinquent acts” to erase his or her record, typically at the age of 17 or 18. The idea is to allow the juvenile offender to enter adulthood with a “clean slate,” shielding him or her from the negative effects of having a criminal record.

Texas expungement law allows expungement of arrests that did not lead to a finding of guilt and class C misdemeanors if the defendant received deferred adjudication and completed community supervision.  The release, dissemination or use of expunged records by any agency is prohibited. Unless being questioned under oath, the defendant may deny the occurrence of the arrest and expungement order. If the defendant was found guilty, pled guilty or pled no contest to any offense other than a class C misdemeanor, the record is not eligible for expungement. However, it may be eligible for nondisclosure if deferred adjudication was granted. If the person who has had a record expunged is applying for enlistment into the armed services, the charge must be revealed or the person shall be disqualified from enlistment and may be liable for criminal action for fraudulent enlistment if the charge is not revealed.

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