Possession of Drug Paraphernalia

Drug Paraphernalia

In Texas Possession of Drug Paraphernalia (PODP) is a class C misdemeanor punishable by up to a $500 fine. Delivery of Drug Paraphernalia or possession with intent to deliver is a class A misdemeanor. With a previous conviction the minimum jail time is 90 days. Delivery or possession with intent to deliver to a child under 18 and at least 3 years younger than actor is a state jail felony. It is punishable by 6 months to 2 years in a state jail or probation 2 years up to 5 and a possible $10,000 fine.

In Texas the Texas Controlled Substances Act Ch 481.125 (a) is Drug Paraphernalia use or intent to use. It presumes use or intent to use. The statute says a person knowingly or intentionally uses or possesses with intent to use drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, or conceal a controlled substance, or to inject ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of Health and Safety Code Chapter 481.

The previous list also applies to delivery and possession with intent to deliver.

What is Considered Drug Paraphernalia in Texas?

There is a variety of items that somehow can be considered drug paraphernalia with several examples as follows:

  • A kit used or intended for use in a species of plant considered a controlled substance or derived from.
  • A material, compound, mixture, preparation, intended for use in manufacturing, compounding, converting, producing, processing or preparing a controlled substance.
  • Device intended for use in increasing the potency of a species of plant that is a controlled substance.
  • Testing equipment used in identifying or in analyzing the strength, effectiveness, or purity of a controlled substance.
  • A scale or balance used in weighing or measuring a controlled substance.
  • An adulterant, such as quinine hydrochloride, mannitol, inositol, nicotinamide, dextrose, lactose, or absorbent, blotter-type material, that is used to increase the amount or weight of or to transfer a controlled substance.
  • A sifter used or intended for use in removing twigs and seeds from or refining marijuana.
  • A blender, bowl, container, spoon, or missing device used in cleaning or refining marijuana.
  • A capsule, balloon, envelope, or other container used in packaging small quantities of a controlled substance.
  • A container used in storing or concealing a controlled substance.
  • A hypodermic syringe, needle, or other object used in injecting a controlled substance in the human body, and
  • An object used ingesting, inhaling, marijuana, cocaine, hashish or oil in into the human body, for example a pipe.

I have to admit most of my cases only involve bowls, pipes and rolling papers. Sometimes bowls as well. Many times drugs are found as well. Drugs are the more serious crime and paraphernalia tickets become a low priority. Many of the previous items can be used for completely legal uses as well.

Driver License Suspension for Drug Paraphernalia

With a conviction for PODP (Controlled Substances Act) a person can get a 180 drivers license suspension. A minor can lose their driver’s license for a year or 18 months with a subsequent suspension. So it is best to avoid even a first conviction.

Sec. 521.372. AUTOMATIC SUSPENSION; LICENSE DENIAL.

(a) A person’s driver’s license is automatically suspended on final conviction of: (1) an offense under the Controlled Substances Act; (2) a drug offense; or (3) a felony under Chapter 481, Health and Safety Code, that is not a drug offense.

(b) The department may not issue a driver’s license to a person convicted of an offense specified in Subsection (a) who, on the date of the conviction, did not hold a driver’s license.

(c) Except as provided by Section 521.374 (b), the period of suspension under this section is the 180 days after the date of a final conviction, and the period of license denial is the 180 days after the date the person applies to the department for reinstatement or issuance of a driver’s license.

Contact me, Eric Torberson, to help solve your legal problems. http://erictorberson.com

What are the Miranda Rights?

In Phoenix, Az in 1963 Ernesto Miranda was asked to accompany police officers to the station to answer question about the kidnapping and rape of 18 year old Lois Ann Jameson. Miranda voluntarily went the station. He stood in a lineup and afterward asked how he did. The officer told him he was positively identified. Then after 2 hours of interrogation, he gave a confession without being warned of his right to have an attorney and right to remain silent. He was convicted and appealed.

What is the Miranda Rights Script?

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

What Does Miranda Rights Law Mean?

The police are required to advise a person of their right to remain silent and also have an attorney present during questioning. These rights were not made known to Miranda prior to his questioning. His case was appealed to the supreme court and his conviction was overturned. The case set forth the importance of the 5th and 6th amendments. These right need to be read to a person who is in a custodial interrogation.

What is Custodial Interrogation?

A Texas case Dowthitt v State, 931 S.W. 2d 244, 255 (Tex.Crim.app.1996) describes four situations which may constitute custody.

  • The suspect is physically deprived of his freedom of action in any significant way
  • When a law enforcement officer tells the suspect that he cannot leave
  • When law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement have been significantly restricted
  • When there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave

What this sums up is being detained and not free to leave. Even though this is now commonly known to law enforcement, there are still times that these right are violated.

Richard Nixon was Against the Miranda Decision

“The Miranda and Escobedo decisions of the high court have had the effect of seriously hamstringing the peace forces in our society and strengthening the criminal forces…[t]he balance must be shifted back.”

 Richard Nixon, “Toward Freedom from Fear” (1968)

Richard Nixon was elected in 1968 and supported congress to pass the Omnibus Crime Control and Safe Streets Act of 1968. This limited the Miranda rights decision. But legislation had little effect, as federal courts retained the power to determine the scope and applicability of the Constitution.

In 1986 Ronald Reagan’s Attorney General Edwin Meese was a critic of the Miranda decision. He wanted congress to overrule Miranda. He said it “coddles criminals” and “Miranda only helps guilty defendants. Most innocent people are glad to talk to the police.”

This sort of opinion is unheard of but not long ago is was under attack.

Do Police Have to Read Miranda Rights for DUI?

For DUI and DWI cases in Texas, the police do not seem to mirandize drivers. Most of the investigation takes place on the roadside where it is not clear that an arrest will take place until the investigatory stop is completed. A traffic stop is “temporary and may last no longer than necessary.” If the officer develops reason suspicion then the stop can continue a reasonable time in order to dispel reasonable suspicion.

Miranda Rights Texas

The Texas Code of Criminal Procedure requires the interrogator to read a person their rights and require the accused to knowingly, intelligently and voluntarily waive the rights in the warning. For oral statements, a recording is required with the rights warning recorded as well.

Do I have to Talk to the Police?

In Texas it is not necessary to speak to the police except for a limited reason. If an officer has reasonable suspicion that a crime has or is about to happen, the officer can ask for your name, date of birth and residential address during a lawful detention or arrest. Incidentally this information is all on a person’s driver’s license or ID assuming it is correct. If a person in a legal detention refuses to answer or gives the wrong information it is an offense called Failure to Identify.

It is common for people to want to speak to the police if they are feeling like they are being accused. Each situation requires a calm thought process. If a person is feeling harassed or bullied, my advice is to request a lawyer and stop talking. I have had many clients who tried to talk their way out of an arrest that was bound to happen. The more you say the more ammunition there will be to use against you in court. Even just saying something in the wrong way can unintentionally be disastrous . Call me, Eric Torberson, or enter your information on my website to talk about your concerns!

Can I check my Drivers License Status Online

I handle various criminal defense cases in Texas. Some of the Texas Statutes can affect a person’s Texas drivers license. Call or contact me on this page form. I work very hard to keep my client’s license from being suspended and also to keep their records clean.

Administrative Driver’s License Revocation Suspension Over 21

For Texas drivers who are 21 and older, there are a certain set of rules regarding an administrative driver’s license revocation suspension. There is what is called alcohol or drug related enforcement contacts. There are 3 categories of enforcement contacts described in Texas Transportation Code Section 524.001(3):

  1. A conviction for driving while intoxicated
  2. A refusal to submit to the taking of a breath or blood specimen following an arrest for driving while intoxicated.
  3. Having an alcohol concentration of .08 or more following an arrest for driving while intoxicated.

For a first time alcohol related or drug related enforcement contact where a driver consented to an alcohol test and had an alcohol concentration of .08 or above, there is a 90 day driver’s license suspension. For someone with 1 or more enforcement contacts in the last 10 years, a specimen failure will result in a 1 year driver’s license suspension.

For a first time enforcement contact, a refusal to submit to a peace officer’s taking of a specimen will result in a 180 day suspension. For someone with 1 or more enforcement contacts in the last 10 years, a specimen refusal with result in a 2 year driver’s license suspension.

Administrative Driver’s License Revocation Suspension Under 21

Texas drivers under 21 have a different set of penalties and can be punished for having any amount less than .08 alcohol concentration as well as above .08.

Any Detectable Amount of Alcohol

For a 1st offense with no prior suspension for a conviction of an offense in the sections of Penal Code Chapter 49, or the Alcohol and Beverage Code Chapter 106 ‘driving or operating a watercraft under the influence by a minor’, there is a 60 day drivers license suspension for “any detectable amount of alcohol.” Also a test failure of .08 or above will result in the same length of suspension of 60 days.

Specimen Refusal

For a 1st offense refusal case, a driver under 21 will have the same 180 suspension that an adult would have for refusing the request of a peace officer to submit to the taking of a specimen.

Subsequent Offense

For a driver under 21 stopped accused of a second offense listed above, “any detectable amount of alcohol” will result in a 120 day driver’s license suspension if there is only one previous conviction. If there are 2 previous convictions the suspension will be 180 days.

Specimen Failure With Subsequent Offense

For a driver under 21 with one previous conviction, a suspension period will be 120 days for providing an alcohol concentration of .08 or more. With two or more previous convictions the suspension period is 180 days in a .08 failure case.

Subsequent Offense Specimen Refusal

Under 21 drivers refusing to take a specimen while having a previous suspension for a conviction described above, are looking at a 2 year driver’s license suspension.

How Long is Your License Suspended For a DWI in Texas?

The suspension period for a Texas DWI will vary depending on your previous record. A conviction for a 1st time DWI, and sentenced to jail time instead of probation, will result in a 90 days to 1 year driver’s license suspension.

If a driver is convicted and sentenced to jail time for a subsequent offense, the suspension range will be 180 days to 2 years. But if the previous conviction was within 5 years of the current arrest the suspension is 1 to 2 years.

What Happens to My License With a Felony DWI Charge?

For a person convicted for DWI with a Child Passenger, the suspension period is 90 days to 1 year. Intoxication Assault with result in 90 days to 1 year for the first offense. It will be a 1 year suspension on a 2nd or subsequent offense within 5 years. Intoxication Manslaughter convictions will suspend a driver’s license for 180 days to 2 years for a first offense. The 2nd or more will be 1 to 2 years if the previous offense was within 10 years of the first offense.

What Happens to My Driver’s License if I Get Probation?

There is usually no driver’s license suspension if the sentence is probated and the person completes the driver education program with a certain amount of time. A jury may also recommend that driver’s license not be suspended.

Driver’s License Suspension for Drug Offense Convictions

The following drug related offense convictions will result in an Automatic Driver’s License Suspension of 180 days:

  • A drug offense
  • A felony driving offense with Penal Code 49 involving the Texas Controlled Substances Act 481
  • An offense under the Federal Controlled Substances Act
  • DWI involving a controlled substance
  • Intoxication Assault involving a controlled substance
  • Intoxication Manslaughter involving a controlled substance

Driver’s License Suspensions for Other Offenses

If a person requiring registration for a sex offense fails to renew an annual driver’s license or ID, they are revoked until the person applies again for original or renewal.

A graffiti conviction can result in a driver’s license suspension of up to a year.

Purchasing or furnishing alcohol for a minor convictions are 180 days for the first offense and 1 year for subsequent convictions.

Tampering with a Government Record ie. license plate, registration, inspection sticker convictions result in a 2 year DL suspension.

Theft of motor fuel is a 180 day suspension and 1 year for subsequent convictions for the crime.

What are the License Suspensions for Offenses Under 21?

For people under 21, some of the license suspension periods vary compared to adults. Some are more severe. The following offenses require, if convicted, a 1 year suspension and for subsequent convictions 18 month suspension:

  • A misdemeanor offense under Ch 481 of the Health and Safety Code
  • An offense other than a fine only misdemeanor of the Alcohol and Beverage Code
  • An offense under the Health and Safety Code Ch 483 Dangerous Drugs
  • An offense under Health and Safety Code Ch 485 Abusable Volatile Chemicals
  • Driving While Intoxicated
  • Driving While Intoxicated with a Child Passenger
  • Intoxication Assault
  • Intoxication Manslaughter

Under 21 Offenses Involving Tx. Alcohol and Beverage Code Ch 106

Convictions for minors involving possessing and purchasing alcohol will involve a driver’s license suspension. The length is as follows:

  • 30 days with no previous convictions
  • 60 days with 1 previous conviction under this section
  • 180 days with 2 or more previous convictions under this section

For minors who fail to provide proof of an alcohol awareness course, there can be consequences. If a minor does not provide proof of the course within 90 days, there can be up to a 6 month license suspension. With 1 or more previous convictions under this section the license suspension may be up to 1 year. The court may extend the 90 day period of proof of the alcohol class. Usually with a decent excuse, I have been able to get an extension from the court.

How Much are Surcharges in Texas?

Surcharges are the drivers license fees paid to the state separately from any court fees or fines. Intoxicated driving surcharges are as follows:

  • $1,000 per year for 3 years no DWI conviction for DWI within the previous 36 months
  • $1,500 per year for 3 years if it is a 2nd or subsequent conviction within a 36th month period
  • $2,000 per year for 3 years if it is shown at trial that the defendant’s blood alcohol concentration was .16 or higher at the time of analysis

Driving While License Invalid Conviction Surcharge

A driver convicted for driving while license invalid or without financial responsibility is subject to a surcharge as well. If within the previous 36 months the person has been convicted of no insurance, suspended registration or another DWLI the surcharge is $250 per year for 3 years. If charged with No Insurance and the driver obtains 6 month prepaid financial responsibility within 60 days, the surcharge will be reduced to $125 per year for 3 years.

Check My License Status Online

The website seems to lag behind the current status. It may say your license is good when it is already suspend. Check if my license is suspended online here.

What is the Penalty for Driving Without a Valid License

The surcharge for driving without a valid license is $100 a year for 3 years unless the person obtains a driver’s license within 60 days. The surcharge will then $50 per year for 3 years.

Suspended Commercial Driver’s License

Driving with a commercial driver’s license (CDL) while operating any motor vehicle creates an extra need for awareness on the road. A driver with a CDL will be disqualified from operating a commercial motor vehicle if convicted of enough serious traffic violations, which are the following:

  • excessive speeding, 15 or more above post speed limit
  • reckless driving
  • improper or erratic lane changes
  • following too closely
  • violation of state or local law in relation to a fatality

2 convictions of the previous serious traffic violations list within 3 years will disqualify the driver from operating a commercial motor vehicle for 60 days. 3 conviction within 36 months will suspend the cdl driver from operating a commercial motor vehicle for 120 days.

The following circumstances will suspend a person’s CDL for 1 year:

  • 3 railroad grade violations in 3 year period.
  • conviction of DWI, DWI with Child Passenger, Intoxication Assault
  • Leaving Scene of Accident
  • Using motor vehicle in the commision of a felony
  • Causing a death by criminal or negligent operation of a motor vehicle
  • Driving commercial motor vehicle while suspended, cancelled, revoked or disqualified
  • Refusing to submit to a test under Transportation Code Ch 724 while operating a motor vehicle
  • By blood, breath or urine an alcohol concentration was .04 or more or a controlled substance present in a commercial motor vehicle in public
  • Had an alcohol concentration of .08 or more operating a motor vehicle (other than a commercial motor vehicle) in public

The following circumstances will suspend a person’s CDL for 3 years:

  • Previously convicted requiring 1 year suspension and the commercial vehicle is transporting hazardous material requiring placard
  • Refusing to submit to a test under Transportation Code Ch 724 while operating a vehicle requiring to be placarded
  • By blood, breath, or urine an alcohol concentration was .04 or more or a controlled substance present while operating a commercial motor vehicle transporting hazardous material required to be placarded
  • Had an alcohol concentration of .08 or more while operating a (non-commercial) motor vehicle in public while transporting hazardous material required to be placarded

Commercial Drivers License Suspended for Life

This can be the end of a career of legally operating a commercial motor vehicle. The following will suspend a CDL for life:

  • Convicted 2 or more times of an offense requiring a 1 year suspension
  • A driver uses a motor vehicle in the commission of a felony involving the manufacture, distribution or dispensing of a controlled substance or possession with intent to manufacture, distribute, or dispense a controlled substance
  • Any combination of 2 or more of the following, arising from 2 or more separate incidents
  • a conviction for an offense requiring a 1 year suspension.
  • refusing a test under Transportation Code Ch 724 and
  • an analysis of the blood, breath or urine determined that it was .04 or higher or had a controlled substance while operating a commercial motor vehicle or
  • had an alcohol concentration of .08 or more while operating a (non-commercial) motor vehicle
  • If the person uses a motor vehicle in the commission of an offense involving transportation, concealment, or harboring of an alien.

Check My Driver’s License Status

Use the following link to check your Texas driver’s license status. Keep in mind that suspensions are usually delayed possibly for weeks to months on the website. Call Attorney Eric Torberson for help with your case. Thanks!

How To Beat a Felony Drug Charge

Drug Possession in

A possession of a drug charge requires a person to be in actual possession of a controlled substance. “Possession” is defined in the Texas Penal Code as actual care, custody, control, or management. This is the same for misdemeanor and felony drug charges in Texas.

This means that a person must knowingly or intentionally possess the drugs that he or she is accused of. If the defendant is not in exclusive possession of the place where the drugs are found, the State must prove additional circumstances and independant facts. These are called Affirmative Links as described in Poindexter v. State, 153 S.W.3d 402, 405-406 (Tex.Cr.App. 2005) that prove the defendant knew of the contraband was there and exercised control of it.

Each case and set of circumstances are different and need to be looked at in a broad context with all the facts. One case’s similar fact may be of no value compared to another case. Case Law discusses that it is not the quantity of links but the ‘logical force’ that they create. The following is a non-exhaustive list of factors that may help to show an affirmative link to controlled substance possession. :

  • Accused attempted to flee or escape
  • Accused conducted hand to hand drug deal
  • Accused was the driver of the vehicle where the drugs were placed and had time to terminate possession, but did not
  • Accused was driver or owner of vehicle with contraband
  • Accused found with large amount of cash
  • Accused had relationship with others who have access to place where contraband was found
  • Accused had special connection to contraband
  • Accused knew of existence of place where narcotics were secreted
  • Accused made pertive gestures
  • Accused made incriminating statements connecting himself to contraband
  • Accused observed in suspicious area under suspicious circumstances
  • Accused owned or resided in place where contraband found
  • Accused possessed other contraband at the time of arrest
  • Accused present at time of search
  • Accused’s conduct indicated consciousness of guilt
  • Accused’s physical condition indicated recent consumption of contraband
  • Conflicting statements by vehicle occupants
  • Contraband found in closet containing men’s clothing, if accused is male
  • Contraband found in close proximity and accessible to accused
  • Contraband found on accused same as contraband found in accused’s room
  • Contraband found in plain view or recovered from enclosed space
  • Others present at time of search
  • Paraphernalia found on or near accused
  • Presence of evidence establishing accused’s occupancy of premises
  • Quantity of contraband
  • Strong residual order of contraband present

Texas Search and Seizure Laws

Most likely the first element of a drug case that a criminal lawyer needs to look at is how the drugs were found. The lawyer needs to be up to date on illegal search and seizure cases. The Fourth Amendment of the United States Constitution says “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Each case is going to be different and will need to be researched by the attorney to determine whether the search violated the Fourth Amendment. The research will need to look into appellate case law to compare the opinions to the facts of the current client’s case.

Case law discusses the Supreme Court’s view on police-citizen encounters. They have broken it down into 3 distinct types of interactions: (1) Consensual Encounters which require no objective justification; (2) Investigatory Detentions, which require reasonable suspicion; (3) arrests, which require probable cause.

Are You required To Show ID To Police?

In Texas when a consensual encounter occurs, the Fourth Amendment is not implicated. An officer is just as free as anyone to stop and question a fellow citizen. A citizen is free to terminate a consensual encounter at will. In Texas, you can refuse to provide information, if you are not under arrest, lawfully detained, or requested information because the peace officer has good cause to believe you are a witness to a criminal offense. If you are in one of the previously 3 situations, you are required to tell your name, residence address and/or date of birth. There is no bright-line rule to determine when an encounter becomes a seizure. Courts will look at the totality of the circumstances.

Can a Drug Dog Smell My Car?

A police canine can sniff your car during a valid traffic stop and doing so does not violate the Fourth Amendment. However, a traffic stop is not without its limits. A traffic stop is temporary and may last no longer than necessary to effectuate its purpose.

What is Probable Cause To Search a Vehicle?

If an officer can search the vehicle if probable cause exists to believe it contains evidence of criminal activity. Such as if an officer smells marijuana, they will be able to search the vehicle without a warrant. 

Texas Search Warrant

If there is a warrant, it needs to be determined whether the warrant was properly applied and sworn to. Both the Texas Constitution and Code of Criminal Procedure require a search warrant to describe the place to be searched as near as possible. The description in the affidavit limits and controls the description contained in the warrant.

Does My Marijuana Case Have To Be In The County I was arrested?

No it does not if the defendant consents to move the case to an adjacent county. For a possession or delivery of marijuana case, Art. 13.22. POSSESSION AND DELIVERY OF MARIHUANA of the Texas Code of Criminal Procedure says “An offense of possession or delivery of marihuana (also spelled marijuana) may be prosecuted in the county where the offense was committed or with the consent of the defendant in a county that is adjacent to and in the same judicial district as the county where the offense was committed.”

The Drugs Need To Be Tested

For a person to be able to beat a case, aside from an illegal search and seizure, the alleged drugs need to be tested to prove what they are. That may seem obvious, but in reality mistakes happen in drug testing lab’s just like anywhere else.

What Happens if I have a Prescription?

If you have a prescription then it is legal to possess the drugs. If the prescription is expired, there is no restriction for possessing your own prescription drugs. If you have someone else’s drugs, then that can be a problem. You do have to be intentionally or knowingly in possession. And you also need to be prepared for the state to try and use affirmative links to connect you to possession of the drugs.

Drug Conviction and Federal Financial Student Aid

It is critical to not get a conviction for possession or selling drugs while receiving Federal Student Aid. This will affect the student’s eligibility. There will be a waiting period from the conviction date of at least 1 year up to an indefinite period for more than 1 conviction for selling drugs.

A student may speed up eligibility by completing an acceptable drug rehabilitation program or by passing 2 random drug tests by an acceptable drug rehab program.

In Texas Deferred Adjudication is not a conviction. This would be very least an attorney should fight for with his or her client.

Pretrial Drug Programs

Depending on the county, a pretrial drug program may be the best way to go. Defendants with no prior history are, at times, looked at with a more forgiving attitude. There may be some difficult tasks to complete to get successfully accomplish whichever program the county may have. Getting clean and passing drug tests while on bond may also help me when negotiating for my clients in court. Don’t settle for an attorney who does not care to look into your case. There are more issues to discuss depending on your particular circumstances. Give me a call or message at http://erictorberson.com and we can discuss how to move forward.

If Charges Are Dismissed Do You Have a Criminal Record?

Eric Torberson Law Office

Yes, an arrest is reported by the jail to the Texas Department of Public Safety records. Obviously charges have to be filed in order to be dismissed, which would happen at a later time after an arrest. Arrests, regardless of whether the case is filed, are a criminal record that can be searched for and found by a background check. Many people are under the impression that an expunction happens automatically. This is not the case.

Once My Case is Dismissed How Do I Get it Off My Record?

Article 55.01 of the Code of Criminal Procedure allows for a person arrested for a misdemeanor or felony to have all the records and files relating to the arrest expunged if the person is acquitted in trial, pardoned, or the person is released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court-ordered community supervision under Article 42.12 for the offense, unless the offense is a Class C misdemeanor.

Is There a Waiting Period Before Getting Arrest Expunged? What is the Texas Expunction Timeline?

Depending on the level of the charge the waiting period to be able to get an expunction can vary.

  • For a Class C misdemeanor, 180 days must elapse from the date of arrest for which the expunction is sought and no felony charge arises out of the arrest.
  • For a Class B or A misdemeanor, 1 year must elapse from the date of arrest and no felony charge arises out of the arrest
  • For a Felony charge, 3 years must elapse from the date of arrest.
  • The attorney for the state needs to certify that the applicable arrest records and files are not needed for use in any criminal investigation or prosecution including another person.
  • Or the charge was dismissed or quashed and the court finds the person completed a pretrial intervention program authorized by the Government Code 76.011 because the presentment had been made because of mistake, false information or similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense, or because the indictment or information was void.
  • Or the statute of limitations has expired.

How to Get My Criminal Record in Texas

You can check the Texas DPS website to order your criminal record online.

Can I Expunge a Deceased Relatives Criminal Record?

Yes, the Texas Code of Criminal Procedure 55.011 allows the Right of Close Relative to Seek Expunction on Behalf of Deceased Person. A close relative is is a grandparent, parent, spouse, or adult brother, sister, or child of a deceased person. A close relative of a deceased person is qualified if they would qualify is still alive.

What is the Process For an Expunction?

The defendant must provide notice to the state so that the trial court, if it is a district court, or the district court of the county may grant the order of expunction.

To file an expunction petition a person must file in the district court:

  • the petitioner was arrested
  • the offense alleged to have occurred
  • petition must be verified and include full name
  • sex
  • race
  • date of birth
  • driver’s license number
  • social security number
  • address at the time of the arrest
  • the offense charged
  • the date of the offense
  • the date of arrest
  • the county of arrest and municipality if the arrest occurred in municipality
  • the agency of arrest
  • case number and court of offense
  • and with the physical or email addresses of all:
  • law enforcement agencies, jail, magistrate, courts, prosecuting attorney, criminal records, other officials or agencies.
  • central federal depositories of criminal records that the petitioner has reason to believe have records or files that are subject to expunction; and
  • private entities that compile and disseminate for compensation criminal history record information that the petitioner has reason to believe have information related to records or files that are subject to expunction.

Text of subsection effective on January 01, 2019
(b) The order of expunction entered by the court shall have attached and incorporate by reference a copy of the judgment of acquittal and shall include:(1) the following information on the person who is the subject of the expunction order:

(A) full name;

(B) sex;

(C) race;

(D) date of birth;

(E) driver’s license number; and

(F) social security number;

(2) the offense charged against the person who is the subject of the expunction order;

(3) the date the person who is the subject of the expunction order was arrested;

(4) the case number and court of offense; and

(5) the tracking incident number (TRN) assigned to the individual incident of arrest under Article 66.251

(b)(1) by the Department of Public Safety.

(c) When the order of expunction is final, the clerk of the court shall send a certified copy of the order to the Crime Records Service of the Department of Public Safety and to each official or agency or other governmental entity of this state or of any political subdivision of this state named in the order. The certified copy of the order must be sent by secure electronic mail, electronic transmission, or facsimile transmission or otherwise by certified mail, return receipt requested. In sending the order to a governmental entity named in the order, the clerk may elect to substitute hand delivery for certified mail under this subsection, but the clerk must receive a receipt for that hand-delivered order.(c-1)

The Department of Public Safety shall notify any central federal depository of criminal records by any means, including secure electronic mail, electronic transmission, or facsimile transmission, of the order with an explanation of the effect of the order and a request that the depository, as appropriate, either:

(1) destroy or return to the court the records in possession of the depository that are subject to the order, including any information with respect to the order; or

(2) comply with Section 5(f) pertaining to information contained in records and files of a person entitled to expunction under Article 55.01(d).

What Happens When Someone Violates an Expunction Order?

Art. 55.04. VIOLATION OF EXPUNCTION ORDER.

Sec. 1. A person who acquires knowledge of an arrest while an officer or employee of the state or of any agency or other entity of the state or any political subdivision of the state and who knows of an order expunging the records and files relating to that arrest commits an offense if he knowingly releases, disseminates, or otherwise uses the records or files.

Sec. 2. A person who knowingly fails to return or to obliterate identifying portions of a record or file ordered expunged under this chapter commits an offense.

Sec. 3. An offense under this article is a Class B misdemeanor.

Texas Expungement Attorney

Call me to ask more questions. 512-340-7300 or visit this website http://erictorberson.com. I have many clients who I have had the privilege to do an expunction. I handled their case in such a way that they qualified to erase the arrest from their record forever and move on with life with a fresh start.

Austin Jail Release

Attorney Eric Torberson

How do I bond out of the Travis County Jail?

First thing to do is a Travis County Inmate Search. If someone is in jail, their name should show up on the web page. An attorney can help expedite the jail release by getting the paperwork through the proper departments. If someone wants to know if they have a warrant that can be looked up on Travis County Warrant Search site.  If this is the case, you can hire an attorney to do a walk through at the jail. 

What is Travis County Pretrial Services?

Pretrial Services has a Pretrial Investigations Unit that will collection information through interviews with defendants in custody. From what they gather, they will make recommendations to the court about release on personal bond and recommended bond conditions. The judge will take their recommendation under advisement. 

Pre trial officers gather information from defendants in and out of custody about indigence status relating to court appointed attorney qualification. They also interview field released defendants who were not arrested and taken to jail immediately by police.

Pretrial Investigations is staffed all year long and are open except for the 4 hour period from 2am to 6am.

 

Bonding Out of Travis County Jail with an Assault Charge

It can be difficult to quickly bond out of jail on a personal bond. The pretrial investigators require contacting the alleged victim about their thoughts on the jailed person’s release. The victim has a say about whether a defendant is a future danger to them. Also the living arrangements are a concern for pretrial services especially if there is a protective order issued by the judge or applied for by the arresting police officer. The protective orders usually restrict the defendant from being at the same place as the victim.

For Jail Release Call 512-340-7300

In Austin an attorney can assist with jail release without the need for a bondsman. Most of the time the fee will be used toward the future legal representation. This save from paying a bondsman non-refundable money as happens in other Texas counties.

We careful what jail release attorney that you use. They may not have your best interest in mind and the particular skills needed to handle your case later on. A jail release lawyer signs the bond paperwork as your attorney on your case until another is substituted in. You will want a skilled Austin DWI Lawyer or the best austin criminal defense attorney for your situation. 

What is a Personal Bond?

Texas Code of Criminal Procedure Chapter 17.03 Personal Bond allows a magistrate at their discretion to release a defendant on their personal bond without sureties or security. Certain offenses will require the court judge to release on a personal bond. These include Capital Murder, Aggravated Kidnapping, Aggravated Sexual Assault, Deadly Assault on Law Enforcement, Corrections, Employee of Pardons and Paroles or Court Participant, Injury to a Child, Elderly or Disabled, Aggravated Robbery, Burglary, Engaging in Organized Criminal Activity, Continuous Sexual Abuse of Young Child or Children or Continuous Trafficking of Persons. Also 481 of Health and Safety Code crimes asking for more punishment than first degree felony punishment or refusing or testing positive for controlled substance. 

Are Their Any Personal Bond Conditions?

If a reasonable belief is had by the magistrate or investigating officer that the defendant has a controlled substance in their body or a drug or alcohol abuse finding, the magistrate shall set testing and treatment. This states if it will reasonably assure the appearance of the defendant for trial. But the state cannot use any test results in any criminal proceeding arising out of the offense for defendant is charged. 

The magistrate maintains jurisdiction or the bond until a case is filed or set in county or district court. Until then, the magistrate is in control over the bond and conditions. For a person arrested out of county for another county’s warrant, that magistrate can release the out of county defendant on a personal bond. 

How Long Does a DWI Stay on Your Record?

Attorney Eric Torberson

How Long Does a DWI Stay on Your Record In Texas?

The short answer is forever. But I need to elaborate. The question should be more specific and ask “DWI Conviction” rather than “DWI”. A dwi conviction stays forever. A dwi conviction takes place by two ways. The first way is a plea of guilty prior to trial, where the defendant with or without an attorney, signs paperwork. Then next stands in front of a judge an pleads guilty to driving while intoxicated. The second way is to be found guilty in a trial by judge or jury.

Sometimes a person is only arrested for DWI and later that accusation is dismissed.  Or the defendant pleads guilty to another charge. As far as the dismissal is concerned there will be a right to expunge the arrest. It will just be a matter of if there is a waiting period. The second situation with pleading to another or reduced charge, it will probably not be expungeable unless it was plead to a Class C ticket with a deferred disposition.

Texas used to have a 10 years period where a dwi 10 years or more old could not be used to enhance a current dwi charge. That law was removed several years ago. So any dwi conviction, no matter how old, can be used to enhance the current dwi to a more serious penalty. It is more important than ever to fight and keep a driving while intoxicated off of your record. This means skill and preparation by your attorney. That takes a dedicated lawyer who keeps up to date on his practice and knowledge. There are many times ways to fight DWI cases even when it seems impossible. Call Eric Torberson for answers and avoid having to do this described procedure if at all possible.

Texas Dwi Non Disclosure

On September 1, 2017 Texas Legislature passed House Bill 3016. This allows a non-disclosure for certain DWI case in order to conceal the case from private entities such as employers. Texas Government Code 411.0731 allows for non-disclosure petitions to be filed.

To qualify under this law, the petitioner was convicted of DWI under offense 49.04 with a Class B DWI case and placed on probation. The petitioner completed probation and paid all fines, costs, and restitution if any and was not revoked. This law does not apply to a petitioner on probation for a Class A misdemeanor DWI case.

The petitioner also must have had an alcohol concentration level of less than .15 at the time of an analysis of the petitioners blood, breath, or urine. Petitioner must have satisfied the requirements of Section 411.074 of the Government Code. This means that the person cannot have previously been convicted or placed on deferred adjudication for an offense requiring sex offender registration. It will not allow a person with any previous offense involving kidnapping or family violence.

Also the statute excludes any of the following crimes  Murder 19.02, Capital Murder 19.03, Trafficking of Persons 20A.02, Continuous Trafficking of Persons 20A.03, Injury to a Child, Elderly, or Disabled Person 22.04, Abandoning or Endangering a Child 22.041, Violation of Court Orders of Conditions of Bond in Family Violence, Sexual Assault or Abuse, Stalking, or Trafficking Case 25.07, Repeated Violation of Certain Court Orders or Condtions of Bond in Family Violence, Sexual Assault, or Abuse, Stalking, or Trafficking Case 25.072, or Stalking 42.072.

The petitioner also can not have been convicted or placed on deferred adjudication community supervision while waiting after the probation period is over for another offense other than a traffic offense punishable by fine only.

More Texas Non-Disclosure Eligibility Information

Petitioner must wait a period of time for the non-disclosure depending on whether an ignition interlock device was installed. The waiting period is 2 years upon probation completion if the petitioner installed an ignition interlock device for at least 6 months as a condition of probation. The waiting period is 5 years after the probation is complete if probation did not restrict petitioners use of a motor vehicle with a ignition interlock device for at least 6 months.

Once this is all satisfied the judge will issue an Order of Non-disclosure in the Best Interest of Justice.

Invasive Visual Recording

What is Invasive Visual Recording?

A person without the other person’s consent invades the privacy of the other person by photographing or by videotaping or other electronic means records, broadcasts, or transmits a visual image of an intimate area of another person if the other person has a reasonable expectation that the intimate area is not in the public view. Or a person photographs, videotapes or other electronic means records, broadcasts, or transmits a visual image of another in a bathroom or changing room. Or a person promotes a private photograph, recording, broadcast, or transmission described above. The penal code statute is Sec. 21.15. INVASIVE VISUAL RECORDING.

Attorney Eric Torberson

What are some Invasive Visual Recording Definitions?

“Female breast” specifically means any portion of the female breast below the top of the areola. And the “Intimate area” means the naked or clothed genitals, pubic area, anus, buttocks, or female breast of a person. Where also the term “Changing room” means a room or portioned area provided for or primarily used for the changing of clothing and includes dressing rooms, locker rooms, and swimwear changing areas. To “Promote” means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to any of the above.

What is the criminal penalty for Invasive Visual Recording?

The penalty for this offense is a state jail felony. It is punished by 6 month to 24 months in a state jail facility and up to a $10,000 fine. A probation punishment can be from 2 years to 5 years probation and up to a $10,000 fine. This can be enhanced to a 3rd degree felony if committed with a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. The punishment for a 3rd degree felony is 2 to 10 years prison and up to a $10,000 fine. For probation the range is 2 to 10 years probation and up to a $10,000 fine. 

Criminal Defense Attorney for Invasive Visual Recording charges

Attorney Eric Torberson defends people accused of charges. Call or fill in the contact form on this page or on any of pages on the website http://erictorberson.com. With offices in Georgetown and Austin Eric handle cases all over central Texas including counties Williamson, Travis, Milam, Bastrop, Lee, Bell, Hays, Caldwell, Blanco, Lee, and Burnet County. 

Texas Video Recording Laws

It is legal to video record in public places.  More to come. 

Jail Release and Criminal Process

What is Jail Release?

The jailing process begins with either a warrant or an on site arrest. A warrant is the result of a criminal charge from some previous time. An on site arrest is the result of on officer observing criminal behavior presently. Once taken to jail, a bond will need to be put in place in order to obtain a jail release. With a warrant, there is a good chance that a bond has already been put in place. For on site arrests most Texas county’s inmates will need to wait until morning when the magistrate judge has court. 

What is an Arrest Warrant?

A warrant is issued usually after some sort of investigation resulting in a judge signing an arrest warrant. The arrest warrant sits around until it gets served on a person. This can take place by the police coming to search for the person, or the person is stopped for a traffic violation at which point a person is placed under arrest and taken to jail.  

What is a Waiver of Magistrate?

In county jails such as the Williamson County Jail, most people arrested on site for an offense will need to wait until the next morning to be magistrated and given a bond amount. For the inmates who have a bond set earlier, they can use an attorney to do a Waiver of Magistration. This signed form waives magistration and sets a bond amount earlier. See image below.

Waiver of Right To Be Magistrated Attorney Eric Torberson 1
Waiver of Magistrate

How Much is Bail?

Bail increases with relation to the degree of crime committed. It is higher in a situation where a risk of fleeing might be present. A flight risk to avoid facing charges in criminal court can make bond restrictions complicated. Bondman usually charge 10% of what the bond is to become a surety. If cash is paid for the whole bond amount, then a bondsman will not be necessary. The cash bond paid to the jail will be returned upon the completion of the criminal case. 

What is Bail Jumping?

Penal Code Sect. 38.10 Bail Jumping and Failure to Appear

A person lawfully released from custody with or without bail on condition that he subsequently appear intentionally or knowingly fails to appear in accordance with the terms of his release.

Punishment for Bail Jumping is a 3d degree felony if the offence for which the actor’s appearance was required is classified as a felony. Class A misdemeanor if the appearance was for a Class A or B misdemeanor. It is a Class C misdemeanor if appearance was for a fine only offense. 

What is a Personal Bond?

According to the Travis County Sheriff’s website, “in the Travis County Jail for instance, there are personal bonds often. A Personal Bond is a sworn agreement by the defendant that he/she will return to court as ordered and will comply with the conditions placed on his/her release. No money is required at the time of release.”

The site further states, “To post a personal bond, individual defendants cannot post a personal bond themselves. Only Pretrial Services or an attorney may submit a request for release on personal bond to a judge. Only a judge can approve release on a personal bond.” As an Austin criminal attorney who handles cases in Travis County as well as that I am a Williamson County Criminal Lawyer.  You can read more information at http://erictorberson.com/

Is Forging a Prescription a Felony?

Prescription Fraud Photo

Yes, it is a felony in most cases. Felony charges will in include schedule 1 through 4 levels. Unless the controlled substance is a schedule 5. Then the prescription fraud is a Class A misdemeanor. 

Changing a Prescription

This is illegal act is common in most criminal cases when a person attempting to obtain the drugs is the person accused. This takes place by possibly changing the prescription somehow to dishonestly obtain prescription medication. An altered prescription is illegal and is described as a crime under Sec. 481.129 (a-1) Obtains or attempts to obtain from practitioner by fraud

How Severely is Prescription Tampering Defined?

There are 3 levels of crimes for prescription tampering. Schedule 1 and 2 are measured as a 2d degree penalty. Schedule 3 and 4 are defined as a 3d degree penalty. Schedule 5 is a Class A misdemeanor.  The 3 levels of crime are listed in Penal Code Chapter 12 Punishments

What is a Forged Prescription Penalty?

The schedule 1 and 2 that are 2d degree felonies can carry up to 20 years in prison and $10,000 fine. The schedule 3 and 4 that are 3d degree punishments can be up to 10 years in prison and $10,000 fine. The schedule 5 is class A misdemeanor and up to 1 year in county jail and up to a $4,000 fine.  

Crime Levels and Punishment For Forging Prescriptions

Sec. 481.129. OFFENSE: FRAUD

(a) A person commits an offense if the person knowingly:(1) distributes as a registrant or dispenser a controlled substance listed in Schedule I or II, unless the person distributes the controlled substance as authorized under the federal Controlled Substances Act ;

(2) uses in the course of manufacturing, prescribing, or distributing a controlled substance a Federal Drug Enforcement Administration registration number that is fictitious, revoked, suspended, or issued to another person;

(3) issues a prescription bearing a forged or fictitious signature;

(4) uses a prescription issued to another person to prescribe a Schedule II controlled substance;

(5) possesses, obtains, or attempts to possess or obtain a controlled substance or an increased quantity of a controlled substance: (A) by misrepresentation, fraud, forgery, deception, or subterfuge; (B) through use of a fraudulent prescription form; or (C) through use of a fraudulent oral or telephonically communicated prescription; or

(6) furnishes false or fraudulent material information in or omits material information from an application, report, record, or other document required to be kept or filed under this chapter.

(a-1) A person commits an offense if the person, with intent to obtain a controlled substance or combination of controlled substances that is not medically necessary for the person or an amount of a controlled substance or substances that is not medically necessary for the person, obtains or attempts to obtain from a practitioner a controlled substance or a prescription for a controlled substance by misrepresentation, fraud, forgery, deception, subterfuge, or concealment of a material fact.

(b) A person commits an offense if the person knowingly or intentionally:(1) makes, distributes, or possesses a punch, die, plate, stone, or other thing designed to print, imprint, or reproduce an actual or simulated trademark, trade name, or other identifying mark, imprint, or device of another on a controlled substance or the container or label of a container for a controlled substance, so as to make the controlled substance a counterfeit substance; or

(2) manufactures, delivers, or possesses with intent to deliver a counterfeit substance. (c) A person commits an offense if the person knowingly or intentionally:

(1) delivers a prescription or a prescription form for other than a valid medical purpose in the course of professional practice; or

(2) possesses a prescription for a controlled substance or a prescription form unless the prescription or prescription form is possessed:(A) during the manufacturing or distribution process; (B) by a practitioner, practitioner’s agent, or an institutional practitioner for a valid medical purpose during the course of professional practice; (C) by a pharmacist or agent of a pharmacy during the professional practice of pharmacy; (D) under a practitioner’s order made by the practitioner for a valid medical purpose in the course of professional practice; or (E) by an officer or investigator authorized to enforce this chapter within the scope of the officer’s or investigator’s official duties.(d) An offense under Subsection (a) is:(1) a felony of the second degree if the controlled substance that is the subject of the offense is listed in Schedule I or II;(2) a felony of the third degree if the controlled substance that is the subject of the offense is listed in Schedule III or IV; and (3) a Class A misdemeanor if the controlled substance that is the subject of the offense is listed in Schedule V.

(d-1) An offense under Subsection (a-1) is:(1) a felony of the second degree if any controlled substance that is the subject of the offense is listed in Schedule I or II;

(2) a felony of the third degree if any controlled substance that is the subject of the offense is listed in Schedule III or IV; and

(3) a Class A misdemeanor if any controlled substance that is the subject of the offense is listed in Schedule V.

(e) An offense under Subsection (b) is a Class A misdemeanor. 

(f) An offense under Subsection (c)(1) is:

(1) a felony of the second degree if the defendant delivers:

(A) a prescription form; or

(B) a prescription for a controlled substance listed in Schedule II; and(2) a felony of the third degree if the defendant delivers a prescription for a controlled substance listed in Schedule III, IV, or V.(g) An offense under Subsection (c)(2) is:(1) a state jail felony if the defendant possesses:(A) a prescription form; or(B) a prescription for a controlled substance listed in Schedule II or III; and(2) a Class B misdemeanor if the defendant possesses a prescription for a controlled substance listed in Schedule IV or V. 

The highlighted portion above focuses on the crime and punishment for the person trying to use the fraudulent transaction to obtain drugs according to the Texas Health and Safety Code, Texas Controlled Substances Act.  

Other Prescription Fraud Charges

Other forms of fraud listed in the statute above include the prescriber of the drugs to have commited a crime in one form or another to get drugs to a person. It happens but is less common than the fraud being committed by the person obtaining the prescription medication. 

Drug Schedules

The Department of State Health Services website has a list of scheduled drugs. Each schedule number of drugs get weaker with each number of 1 through 5. 

Contact Eric Torberson at http://erictorberson.com for more assistance. In the central Texas area Eric handles several counties with numerous satisfied clients. 

Texas Penal Code Criminal Trespass

What is Notice of Criminal Trespass Texas?

Notice is a very important consideration when proving someone is trespassing.  Notice of trespassing in Texas is defined as any one of the following-oral or written communication, fencing, signs, purple painted vertical lines, or crops. 

Criminal trespass is considered a significant crime in the United States. One of the important elements is having knowledge or “notice” that you are actually trespassing. For residential areas, a fence on the property is notice that intruders are supposed to stay out. Climbing a fence onto someone’s property is a class B misdemeanor. If an intruder has a weapon then the crime is increased to a class A misdemeanor. 

“Notice” means:

(A)  oral or written communication by the owner or someone with apparent authority to act for the owner;

(B)  fencing or other enclosure obviously designed to exclude intruders or to contain livestock;

(C)  a sign or signs posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders, indicating that entry is forbidden; 

(D)  the placement of identifying purple paint marks on trees or posts on the property, provided that the marks are:

(i)  vertical lines of not less than eight inches in length and not less than one inch in width;

(ii)  placed so that the bottom of the mark is not less than three feet from the ground or more than five feet from the ground;  and

(iii)  placed at locations that are readily visible to any person approaching the property and no more than:

(a)  100 feet apart on forest land;  or

(b)  1,000 feet apart on land other than forest land;  or

(E)  the visible presence on the property of a crop grown for human consumption that is under cultivation, in the process of being harvested, or marketable if harvested at the time of entry.

Accused of Texas Criminal Trespass?  Contact me at http://erictorberson.com.

CHAPTER 30. BURGLARY AND CRIMINAL TRESPASS

Sec. 30.01.  DEFINITIONS.  In this chapter:

(1)  “Habitation” means a structure or vehicle that is adapted for the overnight accommodation of persons, and includes:

(A)  each separately secured or occupied portion of the structure or vehicle;  and

(B)  each structure appurtenant to or connected with the structure or vehicle.

(2)  “Building” means any enclosed structure intended for use or occupation as a habitation or for some purpose of trade,manufacture, ornament, or use.

(3)  “Vehicle” includes any device in, on, or by which any person or property is or may be propelled, moved, or drawn in the normal course of commerce or transportation, except such devices as are classified as “habitation.”

(4)  “Controlled substance” has the meaning assigned by Section 481.002, Health and Safety Code.

(5)  “Wholesale distributor of prescription drugs” means a wholesale distributor, as defined by Section 431.401, Health and Safety Code.

Sec. 30.05.  CRIMINAL TRESPASS.  (a)  A person commits an offense if the person enters or remains on or in property of another, including residential land,agricultural land, a recreational vehicle park, a building, or an aircraft or other vehicle, without effective consent and the person:

(1)  had notice that the entry was forbidden; or

(2)  received notice to depart but failed to do so.

(b)  For purposes of this section:

(1)  “Entry” means the intrusion of the entire body.

(2)  “Notice” means:

(A)  oral or written communication by the owner or someone with apparent authority to act for the owner;

(B)  fencing or other enclosure obviously designed to exclude intruders or to contain livestock;

(C)  a sign or signs posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders,indicating that entry is forbidden; 

(D)  the placement of identifying purple paint marks on trees or posts on the property, provided that the marks are:

(i)  vertical lines of not less than eight inches in length and not less than one inch in width;

(ii)  placed so that the bottom of the mark is not less than three feet from the ground or more than five feet from the ground;  and

(iii)  placed at locations that are readily visible to any person approaching the property and no more than:

(a)  100 feet apart on forest land;  or

(b)  1,000 feet apart on land other than forest land;  or

(E)  the visible presence on the property of a crop grown for human consumption that is under cultivation, in the process of being harvested,or marketable if harvested at the time of entry.

(3)  “Shelter center” has the meaning assigned by Section 51.002, Human Resources Code.

(4)  “Forest land” means land on which the trees are potentially valuable for timber products.

(5)  “Agricultural land” has the meaning assigned by Section 75.001, Civil Practice and Remedies Code.

(6)  “Superfund site” means a facility that:

(A)  is on the National Priorities List established under Section 105 of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. Section 9605);  or

(B)  is listed on the state registry established under Section 361.181, Health and Safety Code.

(7)  “Critical infrastructure facility” means one of the following, if completely enclosed by a fence or other physical barrier that is obviously designed to exclude intruders:

(A)  a chemical manufacturing facility;

(B)  a refinery;

(C)  an electrical power generating facility, substation, switching station, electrical control center, or electrical transmission or distribution facility;

(D)  a water intake structure, water treatment facility, wastewater treatment plant, or pump station;

(E)  a natural gas transmission compressor station;

(F)  a liquid natural gas terminal or storage facility;

(G)  a telecommunications central switching office;

(H)  a port, railroad switching yard, trucking terminal, or other freight transportation facility;

(I)  a gas processing plant, including a plant used in the processing, treatment, or fractionation of natural gas; or

(J)  a transmission facility used by a federally licensed radio or television station.

(8)  “Protected freshwater area” has the meaning assigned by Section 90.001, Parks and Wildlife Code.

(9)  “Recognized state” means another state with which the attorney general of this state, with the approval of the governor of this state, negotiated an agreement after determining that the other state:

(A)  has firearm proficiency requirements for peace officers; and

(B)  fully recognizes the right of peace officers commissioned in this state to carry weapons in the other state.

(10)  “Recreational vehicle park” has the meaning assigned by Section 13.087, Water Code.

(11)  “Residential land” means real property improved by a dwelling and zoned for or otherwise authorized for single-family or multifamily use.

(12)  “Institution of higher education” has the meaning assigned by Section 61.003, Education Code.

(c)  Repealed by Acts 2009, 81st Leg., R.S., Ch. 1138, Sec. 4, eff. September 1, 2009.

(d)  An offense under this section is:

(1)  a Class B misdemeanor, except as provided by Subdivisions (2) and (3);

(2)  a Class C misdemeanor, except as provided by Subdivision (3), if the offense is committed:

(A)  on agricultural land and within 100 feet of the boundary of the land; or

(B)  on residential land and within 100 feet of a protected freshwater area; and

(3)  a Class A misdemeanor if:

(A)  the offense is committed:

(i)  in a habitation or a shelter center;

(ii)  on a Superfund site; or

(iii)  on or in a critical infrastructure facility;

(B)  the offense is committed on or in property of an institution of higher education and it is shown on the trial of the offense that the person has previously been convicted of:

(i)  an offense under this section relating to entering or remaining on or in property of an institution of higher education; or

(ii)  an offense under Section 51.204(b)(1), Education Code, relating to trespassing on the grounds of an institution of higher education; or

(C)  the person carries a deadly weapon during the commission of the offense.

(d-1)  For the purposes of Subsection (d)(3)(B), a person has previously been convicted of an offense described by that paragraph if the person was adjudged guilty of the offense or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication community supervision, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the person was subsequently discharged from deferred adjudication community supervision.

(d-2)  At the punishment stage of a trial in which the attorney representing the state seeks the increase in punishment provided by Subsection (d)(3)(B), the defendant may raise the issue as to whether, at the time of the instant offense or the previous offense, the defendant was engaging in speech or expressive conduct protected by the First Amendment to the United States Constitution or Section 8, Article I, Texas Constitution.  If the defendant proves the issue in the affirmative by a preponderance of the evidence, the increase in punishment provided by Subsection (d)(3)(B) does not apply.

(e)  It is a defense to prosecution under this section that the actor at the time of the offense was:

(1)  a firefighter or emergency medical services personnel, as defined by Section 773.003, Health and Safety Code, acting in the lawful discharge of an official duty under exigent circumstances;

(2)  a person who was:

(A)  an employee or agent of:

(i)  an electric utility, as defined by Section 31.002, Utilities Code;

(ii)  a telecommunications provider, as defined by Section 51.002, Utilities Code;

(iii)  a video service provider or cable service provider, as defined by Section 66.002, Utilities Code;

(iv)  a gas utility, as defined by Section 101.003, Utilities Code, which for the purposes of this subsection includes a municipally owned utility as defined by that section;

(v)  a gas utility, as defined by Section 121.001, Utilities Code;

(vi)  a pipeline used for the transportation or sale of oil, gas, or related products; or

(vii)  an electric cooperative or municipally owned utility, as defined by Section 11.003, Utilities Code; and

(B)  performing a duty within the scope of that employment or agency; or

(3)  a person who was:

(A)  employed by or acting as agent for an entity that had, or that the person reasonably believed had, effective consent or authorization provided by law to enter the property; and

(B)  performing a duty within the scope of that employment or agency.

(f)  It is a defense to prosecution under this section that:

(1)  the basis on which entry on the property or land or in the building was forbidden is that entry with a handgun was forbidden; and

(2)  the person was carrying:

(A)  a license issued under Subchapter H, Chapter 411, Government Code, to carry a handgun; and

(B)  a handgun:

(i)  in a concealed manner; or

(ii)  in a shoulder or belt holster.

(g)  It is a defense to prosecution under this section that the actor entered a railroad switching yard or any part of a railroad switching yard and was at that time an employee or a representative of employees exercising a right under the Railway Labor Act (45 U.S.C. Section 151 et seq.).

(h)  At the punishment stage of a trial in which the attorney representing the state seeks the increase in punishment provided by Subsection (d)(3)(A)(iii), the defendant may raise the issue as to whether the defendant entered or remained on or in a critical infrastructure facility as part of a peaceful or lawful assembly, including an attempt to exercise rights guaranteed by state or federal labor laws.  If the defendant proves the issue in the affirmative by a preponderance of the evidence, the increase in punishment provided by Subsection (d)(3)(A)(iii) does not apply.

(i)  This section does not apply if:

(1)  the basis on which entry on the property or land or in the building was forbidden is that entry with a handgun or other weapon was forbidden; and

(2)  the actor at the time of the offense was a peace officer,including a commissioned peace officer of a recognized state, or a special investigator under Article 2.122, Code of Criminal Procedure, regardless of whether the peace officer or special investigator was engaged in the actual discharge of an official duty while carrying the weapon.

Sec. 30.06.  TRESPASS BY LICENSE HOLDER WITH A CONCEALED HANDGUN.  (a)  A license holder commits an offense if the license holder:

(1)  carries a concealed handgun under the authority of Subchapter H, Chapter 411, Government Code, on property of another without effective consent; and

(2)  received notice that entry on the property by a license holder with a concealed handgun was forbidden.

(b)  For purposes of this section, a person receives notice if the owner of the property or someone with apparent authority to act for the owner provides notice to the person by oral or written communication.

(c)  In this section:

(1)  “Entry” has the meaning assigned by Section 30.05(b).

(2)  “License holder” has the meaning assigned by Section 46.035(f).

(3)  “Written communication” means:

(A)  a card or other document on which is written language identical to the following:  “Pursuant to Section 30.06, Penal Code (trespass by license holder with a concealed handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a concealed handgun”; or

(B)  a sign posted on the property that:

(i)  includes the language described by Paragraph (A) in both English and Spanish;

(ii)  appears in contrasting colors with block letters at least one inch in height; and

(iii)  is displayed in a conspicuous manner clearly visible to the public.

(d)  An offense under this section is a Class C misdemeanor punishable by a fine not to exceed $200, except that the offense is a Class A misdemeanor if it is shown on the trial of the offense that, after entering the property, the license holder was personally given the notice by oral communication described by Subsection(b) and subsequently failed to depart.

(e)  It is an exception to the application of this section that the property on which the license holder carries a handgun is owned or leased by a governmental entity and is not a premises or other place on which the license holder is prohibited from carrying the handgun under Section 46.03 or 46.035.

(f)  It is a defense to prosecution under this section that the license holder is volunteer emergency services personnel, as defined by Section 46.01.

Sec.30.07.  TRESPASS BY LICENSE HOLDER WITH AN OPENLY CARRIED HANDGUN.  (a)  A license holder commits an offense if the license holder:

(1)  openly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, on property of another without effective consent; and

(2)  received notice that entry on the property by a license holder openly carrying a handgun was forbidden.

(b)  For purposes of this section, a person receives notice if the owner of the property or someone with apparent authority to act for the owner provides notice to the person by oral or written communication.

(c)  In this section:

(1)  “Entry” has the meaning assigned by Section 30.05(b).

(2)  “License holder” has the meaning assigned by Section 46.035(f).

(3)  “Written communication” means:

(A)  a card or other document on which is written language identical to the following:  “Pursuant to Section 30.07, Penal Code (trespass by license holder with an openly carried handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a handgun that is carried openly”; or

(B)  a sign posted on the property that:

(i)  includes the language described by Paragraph (A) in both English and Spanish;

(ii)  appears in contrasting colors with block letters at least one inch in height; and

(iii)  is displayed in a conspicuous manner clearly visible to the public at each entrance to the property.

(d)  An offense under this section is a Class C misdemeanor punishable by a fine not to exceed $200, except that the offense is a Class A misdemeanor if it is shown on the trial of the offense that, after entering the property, the license holder was personally given the notice by oral communication described by Subsection(b) and subsequently failed to depart.

(e)  It is an exception to the application of this section that the property on which the license holder openly carries the handgun is owned or leased by a governmental entity and is not a premises or other place on which the license holder is prohibited from carrying the handgun under Section 46.03 or 46.035.

(f)  It is not a defense to prosecution under this section that the handgun was carried in a shoulder or belt holster.

(g)  It is a defense to prosecution under this section that the license holder is volunteer emergency services personnel, as defined by Section 46.01.

Age of Consent in Texas

What is the Legal Age in Texas?

The legal age of consent to have sex is 17 years of age. If a child younger than 17 has sex, it is presumed to have been non-consensual on the child’s part. Whether the child’s sexual partner had knowledge of the reasonableness of the child’s age is not a defense. 

CHAPTER 22. ASSAULTIVE OFFENSES

Sec. 22.011. SEXUAL ASSAULT

(a) A person commits an offense if:

(1) the person intentionally or knowingly:(A) causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or(C) causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or

(2) regardless of whether the person knows the age of the child at the time of the offense, the person intentionally or knowingly:(A) causes the penetration of the anus or sexual organ of a child by any means;(B) causes the penetration of the mouth of a child by the sexual organ of the actor;(C) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;(D) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or(E) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor.(b) A sexual assault under Subsection (a)(1) is without the consent of the other person if:(1) the actor compels the other person to submit or participate by the use of physical force, violence, or coercion;(2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person or to cause harm to the other person, and the other person believes that the actor has the present ability to execute the threat;

(3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist;

(4) the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it;

(5) the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring;

(6) the actor has intentionally impaired the other person’s power to appraise or control the other person’s conduct by administering any substance without the other person’s knowledge;

(7) the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat;

(8) the actor is a public servant who coerces the other person to submit or participate;

(9) the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person’s emotional dependency on the actor;

(10) the actor is a clergyman who causes the other person to submit or participate by exploiting the other person’s emotional dependency on the clergyman in the clergyman’s professional character as spiritual adviser; or

(11) the actor is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other under Chapter 2, Family Code.

(c) In this section:(1) “Child” means a person younger than 17 years of age.(2) “Spouse” means a person who is legally married to another.(3) “Health care services provider” means:

(A) a physician licensed under Subtitle B, Title 3, Occupations Code;

(B) a chiropractor licensed under Chapter 201, Occupations Code;

(C) a physical therapist licensed under Chapter 453, Occupations Code;

(D) a physician assistant licensed under Chapter 204, Occupations Code; or

(E) a registered nurse, a vocational nurse, or an advanced practice nurse licensed under Chapter 301, Occupations Code.

(4) “Mental health services provider” means an individual, licensed or unlicensed, who performs or purports to perform mental health services, including a:

(A) licensed social worker as defined by Section 505.002, Occupations Code;(B) chemical dependency counselor as defined by Section 504.001, Occupations Code;(C) licensed professional counselor as defined by Section 503.002, Occupations Code;(D) licensed marriage and family therapist as defined by Section 502.002, Occupations Code;(E) member of the clergy;(F) psychologist offering psychological services as defined by Section 501.003, Occupations Code; or(G) special officer for mental health assignment certified under Section 1701.404, Occupations Code.

(5) “Employee of a facility” means a person who is an employee of a facility defined by Section 250.001, Health and Safety Code, or any other person who provides services for a facility for compensation, including a contract laborer.(d) It is a defense to prosecution under Subsection (a)(2) that the conduct consisted of medical care for the child and did not include any contact between the anus or sexual organ of the child and the mouth, anus, or sexual organ of the actor or a third party.(e) It is an affirmative defense to prosecution under Subsection (a)(2):(1) that the actor was the spouse of the child at the time of the offense; or(2) that:(A) the actor was not more than three years older than the victim and at the time of the offense:(i) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or(ii) was not a person who under Chapter 62, Code of Criminal Procedure, had a reportable conviction or adjudication for an offense under this section; and(B) the victim:(i) was a child of 14 years of age or older; and(ii) was not a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01.(f) An offense under this section is a felony of the second degree, except that an offense under this section is a felony of the first degree if the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01.

CHAPTER 21. SEXUAL OFFENSES

Sec. 21.11. INDECENCY WITH A CHILD

(a) A person commits an offense if, with a child younger than 17 years of age, whether the child is of the same or opposite sex and regardless of whether the person knows the age of the child at the time of the offense, the person:

(1) engages in sexual contact with the child or causes the child to engage in sexual contact; or

(2) with intent to arouse or gratify the sexual desire of any person:

(A) exposes the person’s anus or any part of the person’s genitals, knowing the child is present; or

(B) causes the child to expose the child’s anus or any part of the child’s genitals.

(b) It is an affirmative defense to prosecution under this section that the actor:(1) was not more than three years older than the victim and of the opposite sex;(2) did not use duress, force, or a threat against the victim at the time of the offense; and(3) at the time of the offense:(A) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or(B) was not a person who under Chapter 62 had a reportable conviction or adjudication for an offense under this section.

(b-1) It is an affirmative defense to prosecution under this section that the actor was the spouse of the child at the time of the offense.(c) In this section, “sexual contact” means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.(d) An offense under Subsection (a)(1) is a felony of the second degree and an offense under Subsection (a)(2) is a felony of the third degree.

Legal Age in Texas? 

What about a Close in Age Exemption?

In Texas a child age 14-16 having sex with a partner not more than 3 years older has an affirmative defense for the partner. If there is an accusation and a trial, the older sexual partner need only prove by a preponderance of the evidence that he or she is 3 years of less older than the child at the time of the sex. 

(e) It is an affirmative defense to prosecution under Subsection (a)(2)
(A) the actor was not more than three years older than the victim and at the time of the offense:(i) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or(ii) was not a person who under Chapter 62, Code of Criminal Procedure, had a reportable conviction or adjudication for an offense under this section; and(B) the victim:(i) was a child of 14 years of age or older; and(ii) was not a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01.

Sec. 2.04. AFFIRMATIVE DEFENSE

(a) An affirmative defense in this code is so labeled by the phrase: “It is an affirmative defense to prosecution . . . .”

(b) The prosecuting attorney is not required to negate the existence of an affirmative defense in the accusation charging commission of the offense.

(c) The issue of the existence of an affirmative defense is not submitted to the jury unless evidence is admitted supporting the defense.(d) If the issue of the existence of an affirmative defense is submitted to the jury, the court shall charge that the defendant must prove the affirmative defense by a preponderance of evidence.

Is 17 Legal in Texas?

Yes it is under statutory rape charges. It is considered sufficient age of consent for a person to have sex.  17 is the legal age to have sex in Texas but believe it or not many states have the age of consent to have sex at the lower age of 16. 

Important Note: There is something that needs mentioning when a sexual relationship involves a person who is younger than 18 years old. There is a Texas Penal Code Statute Sec. 43.25. SEXUAL PERFORMANCE BY A CHILD. This may be charged against a person 2 years older than the person under 18 years of age. A 20 year old could have sex with a 17 year old and be legal under the statutory rape statute and against the law under the Sexual Performance by a Child statute. If the 2 people are married it is not a crime. Sexual conduct or performance with an under 18 year old is a 2nd degree felony.

It is a 1st degree felony if the victim is younger than 14 years old.

Legal Dating Age in Texas

The age of consent does not apply to dating. The Indecency with a Child statute may apply if any touching or exposing of breasts, anus or sexual organs occurs. The child 14-16 years of age must not be more than 3 years younger than the other person of the opposite sex. The three year affirmative defense rule only applies to people of the opposite sex, for the Indecency statute, unlike the sexual assault statute. 

For more information take a look at our home page or contact us.

Williamson County Attorneys

Eric Torberson

888-234-5550

Call the above number for criminal defense, personal injury or animal law issues.

There are a variety of different areas of law people need assistance with. This makes sense because because our state and our nation are built on laws. In order for many of our decisions to be enforceable by law, we need the assistance of a lawyer. There are various legal areas that Williamson County Attorneys work in to help a client in need. This article mentions Williamson County, Texas but certainly can apply to other counties around the state and also country. The county seat for Williamson County is Georgetown, Tx, where the courthouse is located. 

Williamson County Attorney General

The attorney general is not confined to particular counties, but covers the whole state. The AG’s office will assist different counties prosecuting certain crimes and will step in to substitute completely to handle criminal matters. They also have a separate list of crimes that they usually prosecute that Texas counties do not normally handle. The attorney general and local authorities have concurrent jurisdiction over crimes involving state property under Chapter 1 Section 1.09 of the Texas Penal Code. Some cases the AG will be handling in court will be misuse of state or property funds, abuse of office, and offense against juvenile offenders in state correctional facilities. Others are human trafficking, fraud, white collar crimes, and certain violent offenses. 

Williamson County Child Support Attorney

Many family law related interactions with the attorney general’s office revolve around child support. Child support court hearings include paternity and back child support issues. If the father doesn’t maintain payments he can be subject to jail time. Sometimes the father is in possession of the child and the mother is making child support payments.

The child support amount can be the issue after a divorce with court ordered child support in the divorce decree. Also child support can be the issue regardless of whether the father and mother were ever married. It can be ordered after The AG’s child support website page claims their mission is to support Texas families by establishing paternity, obtaining court orders for health and support of children, enforce child support orders, promote emotional involvement of both parents and collaborate with state agencies and community organizations to serve Texas families.

Hiring a child support lawyer can cost a parent between $100 to $500 dollars per hour. So even an uncontested case can cost $2,500 to $5,000. It can be much more for a contested case. 

Williamson County Criminal Lawyer

The Williamson County Jail has quite a few visitors through its doors. Williamson County has a large law enforcement presence. While driving in Williamson County, a person will frequently see police cars driving around. This gives anyone committing any particular one of various possible violations an opportunity to visit the jail. But it is not just driving laws that bring people to jail. A popular criminal accusation is also assault that may require a Georgetown domestic violence attorney. That offense can take place driving or at home. Once the police arrive, most likely someone is going to jail for this type of accusation. If someone is arrested for drunk driving, that’s when a Georgetown DWI Lawyer will need to be called in to take care of the situation in court. Of course there are drug cases, theft, etc. and the misdemeanor and felony versions of each of these alleged crimes. 

 Family Law Attorney Georgetown Tx

Like any county, Williamson County has family law attorneys. Divorce, child custody, and support issues are constantly happening. The courthouse is in Georgetown, Tx but that does not mean that the family law attorneys all office in Georgetown. Some people have used or prefer a Round Rock family lawyer. Family court in Georgetown is always packed with cases. It does not show that it is slowing down anytime soon.

If possible, it is least expensive to try and go with an uncontested divorce. That mean agreeing on EVERY SINGLE ITEM of property that will be divided between the divorcing couple. When arguing about property, custody, or child support begins, that’s where the legal bills start adding up. In Texas property is considered separate or community property depending on when and how it was attained. 

Georgetown Estate Planning Attorney

As with other areas of law, Georgetown estate planning lawyers are needed. Having a will is important. It saves loved ones or friends so much time and effort after a person’s death. A person’s belongings and assets will need to be used to pay off debts before a person’s property can be disbursed. Taxes and debts can consume much of left over property.

Funeral expenses can be costly and the type of funeral is often determined by how much is left to pay for them. Many times family is left with just the bare minimum option and cremation is the only way to go with no funeral. The best option is to create a will. A will does not eliminate all of the difficulties in court but it helps the court determine the person’s intentions. When someone dies with a will in Texas, the law requires that the assets be distributed by the executor to the beneficiaries under a court’s supervision.

When dying without a will in Texas, the code dictates that property is distributed through intestate succession. The executor, once appointed by the court, must gather all of the deceased person’s assets pay the creditors, debts and taxes. Some assets that do not need to go through probate are jointly owned assets and assets in trust. 

Immigration Attorney

Williamson county is not extremely close to a Federal Courthouse. But immigration still affects the Wilco population. Non citizens are sometimes arrested in Williamson County and are subject to deportation proceedings. It is advisable for criminal attorneys to seek immigration attorney advice or encourage their non-citizen clients to get immigration advice before pleading to a criminal offense. Pleas to criminal offenses can have permanent consequences for people and permanently bar future citizenship. A non-citizen can seek refugee status or asylum if suffered persecution or fear of being persecuted for reasons of race, religion, nationality, and/or belonging to a certain social group or political opinion.

Texas Civil Rights Attorney

There are various civil rights issues for lawyer who focus on this area. But the most prominent and breathtaking is the work that the Innocence Project is doing. The project attorneys are getting people who have been in prison and on death row for years out and proven innocent. Many of these people are getting exonerated with DNA testing. “To date, 362 people in the United States have been exonerated by DNA testing, including 20 who served time on death row.” This is amazing. But it’s even more scary that so many innocent people are in prison. It will make a person wonder just how many innocent people have been executed or died in prison without having the opportunity to be exonerated.  Many of the cases have similar stories of a violent crime occuring.

The FBI analyst or an FBI trained analyst will give false testimony of the matching physical evidence. An audit released in 2015 found that in 268 cases where the FBI used microscopic hair analysis to link a defendant to a crime, they were wrong 96 percent of the time. Williamson County has its own historical catastrophe convicting Michael Morton for the murder of his wife that he did not commit. These stories make it critical that there are civil rights attorneys willing to take on these cases. 

Will a Misdemeanor Show up on a Background Check?

Criminal defense attorney Eric Torberson

This question on whether a misdemeanor will affect a background check is too vague and needs to be more specific to answer accurately. So maybe the question should be this….

Will Dismissed Charges Affect Employment?

The answer is maybe. At least in Texas an arrest will show up on a background check until it is expunged and erased from a person’s record. I tell my clients to carry a copy of the court order of dismissal with them if the issue arises. Then they should explain that this will be erased from their record very soon assuming that they are pursuing an expunction in the county of arrest. It also depends on what the exact wording in the job application is. Some ask about felonies. Some ask about convictions. Some ask about both and arrests as well. Leaving out what the application is asking for can be negative for the applicant because the employer will expect honesty from a potential employee foremost.

Will Being Charged But Not Convicted of a Felony Affect My Job?

Again it depends on the job. There are many jobs that hire convicted felons to do various work. This question seems to apply to a pending case or one that only has recently been dismissed. Otherwise it would be prudent to get it expunged as soon as possible. Some employers do not want to hire someone with a pending case and need it to be resolved. It depends on company policy and certain liability issues with regard to the criminal charge. Some jobs require driving or being around money. The type of pending case will really determine what the company will want to do assuming they are aware of the charge.

What Do They See on My Criminal Record if not Convicted?

The arrest will show up on most criminal records until it is expunged. Again I tell people to carry the dismissal order to show that it is over and done with. The background check will show the arrest date, charge and where it took place. You will want to contact a local attorney in that town or county in which the arrest happened in order to find out how to get it erased or expunged.

How Long Do Arrests Stay On Your Record?

Arrests will stay on your record forever. Since the modern age of computers has come to be, arrests are in most local computer systems. Those records get sent to the Department of Public Safety’s system and are available to everyone from there. Which is why I send notice to DPS when I do expungements for my clients.

If Charges Are Dismissed Do You Have a Criminal Record?

In a way yes depending on how you define the term criminal record. The criminal history will have unexpunged arrests which may raise eyebrows of potential employers. For instance a bank may think twice about hiring someone with dismissed theft charges on their record. Or maybe multiple theft charges that were dismissed. Someone wanting to work at a daycare may have a hard time getting a job even with a domestic violence charge first offense on their record even if they are dismissed. A future nurse would not want prescription fraud charges and the list can go on and on.

Jobs You Cannot Get With a Criminal Record

There are many jobs that restrict applicants to having a clean record. The military can be extremely selective on who they let in. This especially true in non-war times when troop numbers are being reduced. Law enforcement is very selective. In Texas a peace officer can have a misdemeanor on record but is must be 10 years or more old. Pilots cannot have records including intoxication offenses. Many of the regulated licensing jobs such as teachers, nurses, and lawyers require strict background searches before licensing. It can be especially difficult with a felony in the background.

How a Domestic Violence Charge Ruined My Life

I had a client visit me at my office looking for Austin assault attorneys. He was charged with an assault family violence commonly referred to as a domestic violence charge. He had previously had a domestic violence allegation called in on him by a girlfriend he used to live with. He wanted the case over quickly so he didn’t hire the best attorney and took the probation offer that the prosecutor gave to him in court. He did not know that the conviction would get him fired from his job when they did a background check. While he was unemployed he still have to do 130 hours community service and pay a $3000 fine. He had a concealed handgun license he had to give up as well as not possess guns for 5 years in Texas. Texas has its laws but under Federal Law he can never possess a gun. This is not the worst part. He recently had an argument with a new girlfriend and she accused him of assaulting her. This time is was a 3rd degree felony. Once a person has a family violence finding in Texas the next accusation becomes a felony by enhancement. That means he could potentially face 10 years in prison maximum. Luckily for him I got the case dropped and we expunged it later on. It’s too bad he didn’t have my representation on his first case. It would have saved him from a tremendous amount of stress.

How To Get a Misdemeanor Expunged in Texas

The procedure for expunging a misdemeanor and a felony are the same. A petition and order are filed in the clerk’s office just like any civil lawsuit would be file. The following topic will explain the general process for expunging a case in Texas state court.

How To Expunge a Dismissed Case

A dismissed case or an acquitted trial case can be expunged. The dismissed case may require a waiting period before an expungement can take place. Some prosecutors offices will oppose an expungement until the statute of limitations has expired. Or hopefully sometimes they will agree to an immediate expungement. Once an expungement is ready to begin, an attorney will prepare a petition and order. The documents will contain the critical details about the arrest with data and dates to identify the exact arrest to be expunged. The document gets filed at the clerk’s office just as any civil lawsuit would. A waiting period of 30 days is required before it is set in district court for a judge to examine. Once the judge determines that the expungement paperwork is proper the order is signed. The expungement is then taken to be filed a the clerk’s office. The attorney will then get certified copies for the client. The clerk’s office will forward a copy of the order to the various agencies listed in the order who will have the arrest in their records. This can be the police, jail, court, bondsman, clerks, prosecutors, and the DPS. Other online reporting sites may need to be included as well. They can be hard to reach. This notification time period can take several months. Sometimes the expungement order doesn’t get sent properly to each agency and another copy of the order needs to be sent. It is satisfying for me once I have completed an expungement. I was able to get the case dismissed and then expunged. It means the client can move on with their life to bigger and better things.

Texas Expungement Cost After Acquittal

After a trial by judge or jury, a defendant is entitled to an expungement immediately. For it to be cost free it needs to be done within 30 days for the filing fee to be waived. This doesnt mean the attorney will be doing it for free, the cost should be several hundred dollars cheaper that otherwise.

Eligibility For Clemency and Pardon in Texas

This discussion would not be complete without a discussion on pardons. It is the third and most unlikely way to qualify for an expunction in Texas. Each year the governor pardons a handful of people who are screened and make it through the process. An application is posted on the Board of Pardons and Paroles. The Board recommends clemency matters, including pardons, to the Governor as it states on their website. The number of pardons are very few. There were only 10 pardons given in 2013 by former Governor Rick Perry. Governor Abbott pardoned 5 people in 2016. There are different pardons. A pardon for innocence is by far the best pardon to receive. It declares a person innocent wipes the conviction from their record completely. This is only available for felonies. A conditional pardon involves conditions to complete during a time period or the pardon will be revoked by the governor. A full pardon clears the felony or misdemeanor conviction and restores most rights. The person will not be eligible to become a peace officer. A pardoned convict will never be able to become a Texas police officer.

How to Get My Criminal Record in Texas

There are options for people to search their own criminal records. A common site to use is the Texas DPS criminal records search https://publicsite.dps.texas.gov/DpsWebsite/CriminalHistory/.  There are other sites as well that require a small fee. Another way is to look for county website data in the county where there may be possible criminal history. The problem is that many rural counties do not have records posted online and will require a paid manual search that can take quite a bit of time.

Texas Background Check Laws

The Texas Workforce Commission website has some rules regarding employers background checks for employers to obey. Also there are suggestions to employers in order to be fair to someone who may have been in trouble in the far past. They suggest to “try to consider only criminal history that is recent enough to be relevant, given the nature of a particular offense, the nature of the job, and the corresponding level of risk of harm – the remoteness of an offense is a factor in the job.” The EEOC site also has guidelines and suggestions about employers inquiring into criminal background. It might be prudent for a person to read over these suggestions to help understand the employers position and approach to interviewing applicants.

Texas Driver’s License Suspension

Will I lose My Drivers License With DUI or DWI?

It is very possible that a Texas drivers license will be suspended after a DUI or DWI charge. DUI charged drivers, reserved for people under 21, are looking at a possible 60 days suspension for a first time charge. It is not automatic since there is an option for the person to request a hearing in front of an administrative judge. However, DWI charges can be given to drivers of any age. Times can range from a 90 day suspension for a test failure to a 2 year suspension for a subsequent refusal within a certain amount of time from a previous suspension.  We have won driver’s license suspension hearings based on lack of evidence and for witnesses not showing up. It is not an automatic loss. But if a suspension does occur, there is a legal way to drive.

Texas Drivers License Status

Sometimes you may want to check the status of your Texas driver’s license. You can click on the below link and enter your information to see the status. But sometimes Texas drivers license check is not very current. Beware if you think you might have a DWI ALR suspension and want the latest status.

https://txapps.texas.gov/txapp/txdps/dleligibility/login.do

Occupational License Texas

Texas allows most people to obtain a Texas provisional license that allows a hardship limited license to go to work and other necessities. It can be limited to 4 hours a day with only certain routes. It can also allow up to 12 hours per dayt or be unlimited times and travel with an ignition interlock device installed. Take a look at this page for more information http://erictorberson.com/how-do-i-get-my-license-back-after-suspension-in-texas.

Contact http://erictorberson.com for more information.

Lawyer for Assault Family Violence Causing Bodily Injury

Assaults accusations at home are a common charge in Texas. Many times arguments are the result of a minor disagreement that gets blown out of proportion.  Sometimes alcohol is involved, and believe it or not, it helps the situation more reasonably explainable later on. It is always wiser to take a deep breath and step away. Many times egos don’t allow stepping away in the heat of the moment. The angry argument can be the result of smaller issues building up over time.

Bodily Injury Penal Code

Bodily injury is defined in Chapter 1.07 in the Texas Penal Code  as “Bodily Injury” means physical pain, illness, or any impairment of physical of physical condition. I have handled cases and have seen various assault allegations. Some cases involve blood, bruises, and even stabbing. But bodily injury can be as minor as a pinch as long as it caused pain. 1989 case law mentions that “bodily injury” is purposefully broad and includes even minor contact but must be more than offensive touching.

Bodily injury is less than “serious bodily injury” which means “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” according to 1.07(46) of the Texas Penal Code.

So any physical pain no matter how minor, will qualify and bodily injury. Case law from 2012 says the fact finder (judge or jury) can infer that the victim felt pain. It reasons that people of common intelligence understand pain and some of the natural causes of it.

Texas Assault Causes Bodily Injury Family Member Levels

There are many varieties of assault cases with various levels of accusations. The most minor charge is Assault by Contact or Threat and is a Class C misdemeanor in Texas It is punishable by fine only. This charge requires the mental state of intentionally or knowingly. It will need more specific intent than the rest of the assault statute. This means a person cannot recklessly cause assault by physical contact and be found at fault of violating a law. The next higher assault charge requires intentionally, knowingly or recklessly mental state while committing the act.

Reckless means “with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.” Also a gross deviation from the standard of care that an ordinary person would exercise from the actor’s standpoint.

In order for the prosecution to prove reckless, they must produce a prima facie case of defendant’s actual, subjective disregard of the risk of a resulting injury which rises to the level of a gross deviation from an ordinary standard of conduct.

The state’s indictment must allege with reasonable certainty the act or acts relied upon. It means needs to say more than just “acted recklessly in committing the offense.”

Assault by Contact against an elderly or disabled person is a Class A misdemeanor.

Assault on a Family Member or Non Family Member

The victim’s relationship with the aggressor is significant if for nothing else enhancement purposes later if there is another accusation with the same person or a different person. But the statute has a defense. A mother cannot be charged with committing a crime against her unborn child. Also physicians and other healthcare providers with consent to do lawful medical procedures.

What is a Family Violence?

The Texas Penal code refers to Texas Family Code to define family violence as seen below. If a person has previously been convicted or placed on deferred adjudication for family violence, then the new accusation is a 3rd degree felony.
Sec. 71.004. FAMILY VIOLENCE. “Family violence” means:

(1) an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself;

(2) abuse, as that term is defined by Sections 261.001(1)(C), (E), (G), (H), (I), (J), (K), and (M), by a member of a family or household toward a child of the family or household; or

(3) dating violence, as that term is defined by Section 71.0021.

How Much Jail Time for Assault Causing Bodily Harm?

There is no requirement for jail time in Texas for assault family violence. Generically speaking in Texas people with significant criminal history have a better chance to go to jail for any particular crime not just assault. For a first time assault family violence class A misdemeanor case the possible jail time is up to one year in county jail.
There is a possibility of getting probation only. Probation and jail time as a condition of probation or only jail time depending on the circumstances.

Best Texas Criminal Lawyer for Assault​

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What is a Household Member?​

The state must prove and an element of the offense of felony assault on a household member that the two were living together when the offense took place. A 2010 case defines a dating relationship as same and opposite sex relationships.

What Makes My Assault Case a 3rd Degree Felony?

Usually a case is a Class A misdemeanor. It becomes a 3rd degree felony for a few different reasons. The first of which is if the actor knew the person was a public servant lawfully discharging an official duty or in retaliation for performance of an official duty as a public servant. Secondly as mentioned early, the defendant was previously convicted of an assault family violence (there are other charges that can be used) charge or given deferred adjudication. Thirdly, it is a 3rd degree felony to intentionally, knowingly or recklessly impede the normal breathing or circulation of blood of a person by applying pressure to the person’s throat or neck or blocking the person’s nose or throat.

Also assaulting a security officer or emergency services personnel who is performing duty is a 3rd degree felony. It is a felony to force a pregnant woman to have an abortion. A government contract worker in a correctional or detention facility, if assaulted, will be charged as a 3rd degree felony.

What Makes My Assault Case a 2nd Degree Felony?

An offense committed against a dating, family or household member and the defendant has been previously convicted of assault family violence will rise to 2nd degree if impeding breath or blood is charged. Also an offense against a peace officer or judge lawfully discharging official duties or retaliation for those duties.

Best Portable Breath Test

Portable Breath Test Use By Law Enforcement

First of all portable breath tests or PBTs for short are not admissible in court in Texas. They are not proven reliable enough to be used for scientific or alcohol measurement purposes. They are not proven to be accurate enough within a certain acceptable range. The police still use them for the purpose of confirming their investigation into whether there is a probable chance that there is enough alcohol in a person’s system to make them arrestable. Many officers are now not reporting the portable breath test result number since it is not admissible. Sometimes law enforcement does report it in their written reports and by showing it to the video camera on their vehicle. This can be a problem later because the alcohol result is not admissible in trial, which requires the prosecutor to have the video redacted so as not to be shown to the jury during trial. When offered to take a test by the law enforcement officer, there is no requirement to take it. If a person blows over .08, the probability to go to jail is greatly increased. If the person blows lower than .08,  the likelihood of being arrested all depends on the law enforcement officers temperament. If a person is not sure if they are over or under the legal limit, than they should simply decline to blow into it.

Portable Breathalyzer Breath Test

Some people carry their own portable breath test devices. This can be useful to blow into before driving after drinking. It can be a safe way to gauge whether there is a chance that the driver would be over the .08 limits. A person would want to buy the best portable breathalyzer in order to have the most accurate result. There could be serious consequences at stake and to purchase an inaccurate device would not be a great choice. The portable breath test device can be used for personal use, as well to let party guests decide if they are able to drive home based on how they feel and what their portable breath test results are. These devices, like all machinery, have a life cycle. After so many uses it can be calibrated or replaced. They wear out after so many uses like most other devices. Click the image below to take a look at more information and also to purchase this particular model.