Does Domestic Violence Charges Affect Gun Ownership?

Yes domestic violence charges very much can affect gun possession and ownership. According to Federal and certain specific State Laws a “conviction” makes a big difference in the outcome. For Federal Law purposes a misdemeanor or felony domestic violence offense needs to be a conviction in order to prevent a person from possessing or owning a firearm.

For state law such as Texas, a completed misdemeanor or felony deferred adjudication probation will not prevent a person from possessing and owning a firearm under state or federal laws.

Domestic violence charges in certain states have court or protective orders, issued after arrest, instructing a person with guns to turn them over to law enforcement for a certain amount of time. The court order may be a temporary time period selected by the judge or the uncertain time period until the case is finally resolved.

The Gun Control Act of 1968

The importance of understanding this Gun Control Act of 1968 is what was going on at the time. Martin Luther King and Robert Kennedy had just been assassinated causing control activist to push for action. There was a popular need to more accountability and controlling who were allowed to get guns. Minors, drunk, mentally ill people, and convicted felons were being banned from gun possession.

The Lautenberg Amendment and Misdemeanor Domestic Violence

In the fall of 1996 a new amendment was introduced and passed almost unanimously. The Lautenberg Amendment amended the Gun Control Act of 1968 by including the ban of firearms by individual convicted of misdemeanor domestic violence. This includes receiving or possession firearms. This is the federal law on the matter and the determining factor describing that a misdemeanor domestic violence conviction makes a person ineligible to have a firearm.

What is the Texas Firearm Law and a Domestic Violence Conviction?

Texas has a law Unlawful Possession of a Firearm Tx Penal Code 46.04. This law allows a person convicted of a misdemeanor assault involving family violence to possess a firearm 5 years after the release from confinement or community supervision for a conviction.

This is not what the federal law says and does not protect someone from prosecution under the federal law discussed above. In these cases federal law often defers to the state to enforce their own law, but it is not a guarantee. Remember the Federal Law prohibits misdemeanor domestic violence convicts specifically from possessing or owning firearms.

Can I Own a Gun After Completing Deferred Adjudication Probation?

Yes. You can own a gun after successfully completing deferred adjudication probation. This probation, if completed successfully, is not a conviction. Title 18 U.S. Code § 922 specifies that a person convicted in any court of a misdemeanor crime of domestic violence shall not possess any firearm or ammunition.

Texas Concealed Carry and Domestic Violence

The law for attaining a Texas ‘License To Carry‘ (LTC) is different than for a person merely in possession or ownership of a firearm in Texas. Texas has changed what used to be a Concealed Handgun License (CHL). Texas now is an open carry state. A person must wait 10 years from the date an order of Deferred Adjudication was entered against the person. But depending on what the person was placed on deferred adjudication is a very important factor on qualification of a Texas LTC.

The following offenses disqualify a person from a License To Carry in Texas even if placed on Deferred Adjudication:

  • Homicide
  • Kidnapping
  • Trafficking a Person
  • Sexual Offenses
  • Assault Offenses (this includes Domestic Violence)
  • Robbery
  • Violation of Certain Conditions of Bond list in Tx Penal Code 25.07
  • Violation of Protective Order
  • Repeat Violation of Protective Order
  • Burglary of Habitation
  • Burglary of Habitation with Intent to Commit a Felony Other Than Felony Theft, or Committed a Felony Other Than Felony Theft
  • An offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense listed above.

A LTC application will be rejected if the applicant is “currently restricted under a court protective order or subject to a restraining order affecting the spousal relationship, other than a restraining order solely affecting property interests.”?

Can I Get My Texas Gun Rights Restored?

Texans can apply to get their gun right restored by filling out a Restoration of Firearms Rights application. This application will not be accepted without a Governor’s Grant of a Full Pardon as well. This pardon application will need to be mailed to the Texas Board of Pardons and Paroles.

§143.12. Restoration of Firearm Rights
The board will consider recommending restoration of the right to receive, possess, bear, and transport in
commerce a firearm only in extreme and unusual circumstances which prevent the applicant from gaining a
livelihood, and only if the applicant:
(1) provides either proof of clearance by a previously granted full pardon or a request for such express
restoration in a pending application for a full pardon from jurisdiction(s) of the relevant conviction(s); and
(2) provides proof of application under the United States Code, Title 18, §925(c), for exemption, relief from
disabilities to the attorney general, and furnishes copies of all relevant applications and responses thereto
by the attorney general including any final actions by said attorney general.

A full pardon restores the right to vote, hold office and serve on a jury. It does not automatically restore the right to bear arms. Before possessing a firearm a person will want to check with the Federal Bureau of Tobacco and Firearms and the Texas Department of Public Safety.

A full pardon does not expunge a person’s criminal records for the incident. An expungement needs to be filed in a district court of the county of conviction.

I’m Married to a Felon, Do I have to Get Rid of My Guns?

This same scenario can apply to being married to a person convicted of domestic violence. The question revolves around who has possession of the firearms during the prohibited period. The felon or person with domestic violence on their record needs to protect themselves in a situation where they may be accused of illegal possession of a gun or guns. The safest and most obvious way would be to not have guns in the home. This may not be possible. Another option would be a gun safe where only the spouse or roommate has access into the safe and legal access to the guns.

This principle can apply to not only spouses but relatives staying in the home, roommates and tenants. A person who is legal to own gun can have them.

A gun owner needs to always be careful who has access to their guns regardless. A gun owner who is reckless and lets a dangerous or irresponsible person gain access to their guns can bring questions of liability or blame on themselves to answer for later.

What Do I Do With My Guns When a Protective Order is Issued Against Me?

Some jurisdictions will order a gun owner to surrender his or her guns to a nearby law enforcement agency to hold while a protective order is pending. The time period may vary. Once the gun owner wins the case or otherwise feels entitled to the possession of the guns a motion can be filed in the court that the protective order or domestic violence case is pending.

Do My Juvenile Records Prevent Me From Owning a Firearm?

Most likely juvenile records will not affect a person as an adult. The records become sealed. The exception to this would be if the juvenile had been certified to stand trial as an adult, was placed on a determinate sentence probation, committed to TJJD with a determinate sentence, or has a continuing obligation to register as a sex offender.

A juvenile’s records in most cases are sealed 2 years after discharge from probation or the last action of a case. Also, it may be at 19 years of age if never certified as an adult and no pending case or felony convictions in adult court.

Contact Eric Torberson by this page or take a look at our home page https://www.erictorberson.com for more information on us.

How can a domestic violence case be dismissed?

Enter your contact information to the right or call 888-234-5550 for help.

There are certainly ways to have a case against you dismissed. The case is only as good as the evidence gathered while investigating the accusation. Much of the evidence used in these cases is what the police gather almost immediately upon arrival. This includes 911 calls, photos, video, witness statements, medical treatment for injuries and most importantly what the victim says happened to her or him. This does not mean everything said to the police in the heat of the moment is true. Sometimes clarification is needed to supplement the investigation when people cool down later.

How are domestic violence cases handled in Texas?

The police are usually called via 911 by a victim or a neighbor. Most of the cases I handle involve a shouting match over something minor resulting in tempers flaring. A domestic violence issue can be between roommates, spouses, boyfriend-girlfriend or parent-child. Commonly there might be a shoving match and someone calls 911. The police arrive and separate the parties and gather information on what took place. They take photos in addition to what is recorded on a body camera that the police wear. There may be dash camera evidence including verbal statements. The police will usually arrest one of the people if there are injuries that resulted in pain. The arrested person can bond out in a day or two depending on whether a protective order is issued. The victim can request a P.O. which will require the alleged accused person to live somewhere else until the expiration of the P.O. of not less than 31 days.

Can you change your mind about pressing charges in Texas?

For the victim who wishes to change their mind about pressing charges, this is certainly an option. It does not meant that the prosecutors will automatically drop the case in court. Hearsay exceptions allow the victim’s statements immediately after an incident to be used as excited utterances in trial without the victim being required to testify.

A victim can have their wish to drop charges made known to the prosecutors office in the form of an affidavit of non-prosecution. They usually would fill out the particular Texas county prosecutors office form for this purpose at the prosecutor’s office in the county where the incident occurred.

How do I drop charges in TX?

As mentioned above the affidavit of non-prosecution is an avenue for the alleged victim to formally let the prosecution know the victim does not want to pursue charges against the accused. Once charges have formally been filed against a defendant the victim cannot do much to the stop the prosecution. Possibly there are more facts that need to be forwarded to the prosecution that may have been overlooked in the initial investigation. An experienced defense lawyer can help make this happen. Sometimes it involves a private investigator.

How long does an assault charge stay on your record in Texas?

An assault conviction stays on a person’s record forever. A conviction is a permanent resolution where a person pleads or is found guilty and gets either jail time or regular probation. This is the case whether it is a misdemeanor or a felony. It would at least be better to get deferred adjudication probation in order to avoid a conviction. A family violence conviction prevents someone from owning a firearm under federal law.

How long can you press charges after assault in Texas?

A victim can try and file charges up until the statute of limitations. This becomes a problem as more times goes by. A credible person would probably not wait a long time to press charges. This is not always true. But there will be questions about why it took so long to file assault charges if it really happened as the alleged victim claims. Misdemeanors have a 2 year statute of limitations. Felonies S.O.L. are longer starting at 3 years.

What are the domestic violence punishment ranges in Texas?

Texas has a class C assault which is assault by contact with no pain. The next level of assault is Class A misdemeanor. Subsequent assaults and more serious injuries or including weapons are usually felony level. For more information on punishment range in Texas take a look at this article, Texas punishment ranges.

Does the victim have to testify in a domestic violence case in Texas?

No witnesses can be forced to speak at trial. They can be subpoena’d and forced to attend. That usually does not happen. The prosecution has the ability to get hearsay exceptions into trial evidence that were given by the alleged victim at or near the time of the incident. It does help if the victim testifies. Most people would like to hear from a victim in order to decide if they believe the accusations.

Assault Family Violence in Texas

For more information refer to this article on assault family violence in Texas. For more general information take a look at our homepage, https://www.erictorberson.com. Our Georgetown criminal law office is in Georgetown, Tx. We handle several county courthouses in the region.

What is the Punishment for a Felony DWI in Texas 3rd?

When a person asks about the repercussions of a DWI in Texas 3rd offense, unfortunately, it means that they already have had previous DWI convictions beginning with a DWI 1st conviction. Then a DWI 2nd conviction. A 3rd DWI conviction can result in a prison sentence of up to 10 years and a $10,000 fine. 

DWI in Texas First Offense

A person really wants to avoid the first offense with a strong desire. Once a DWI first offense gets on a person’s record, it follows them around forever. It makes it very difficult to avoid subsequent DWI convictions if later drunk driving charges come up.

DWI in Texas 2nd Offense

Once charged with a 2nd DWI in Texas a person will need to bond out of jail. Typically the average bail amount for a 2nd DWI is $2,000 to $5,000 depending on the circumstances of the arrest. In Texas, it is mandatory to have an ignition interlock device on a person’s vehicle during the whole time while on bond for a 2nd or subsequent DWI charge.

Texas Bail Bondsman

The bail amount is fairly standardized in each county and will vary. An accident, among other factors, can affect the amount of bond and bond conditions. Once on bond, there will be requirements to complete which is a topic for another post. The court process will take some time to get started. The police will turn in their case to the prosecutor’s office, which is the district attorney or county attorney depending on which Texas county the arrest occurred in. The case will then need to be heard by a grand jury who will either true bill or no bill the case. A true bill means at least 9 of the grand jurors found the evidence sufficient for the charge to be indicted. Whichever court will have the case may have been already been requiring periodic appearances. But once the case is indicted court appearances will begin soon after.

Criminal Defense Lawyer

Hopefully, by now, the driver has hired a criminal defense lawyer. With DWI cases, there is a separate drivers license issue that needs attention from a skilled DWI attorney. But with that issue aside, the best drunk driving lawyers would have already been collecting evidence to begin setting up his or her case. There may be breath or blood test evidence that needs to be investigated as well as possibly an accident reconstruction investigation. The court appearances will be where most of the discussion and negotiating takes place between the defense lawyer and the prosecutor.

3rd DWI in Texas Probation

The punishment for a DWI 3rd can be up to 10 years probation or possibly prison time. A major factor during plea negotiations is whether the person has much criminal history on their record. More specifically, the number of previous DWI convictions and also how recent they are. If there are already non-DWI felony convictions on a person’s record, it can be a problem during negotiations as well. If the prosecutor refuses to offer probation and only a prison sentence, the other option is to have a judge or jury decide. This may require a jury trial or a bench trial in front of the judge.

Can a DWI Be Dismissed in Texas?

While working up the case and examining the evidence, the defense attorney may discover problems with the evidence. There is critical evidence that needs to be proven by the state. The first important factor would be whether the person is the driver and whether they were actually operating the vehicle while intoxicated. Other important issues are whether the breath or blood test concludes intoxication. Just because there is a breath or blood test, does not mean it was conducted properly and should be trusted.

Reckless Driving Texas

The next best thing to winning a DWI case in trial or getting is dismissed is getting a DWI reduced to another charge such as reckless driving. Reckless driving is a misdemeanor and has far less negative implications than a DWI conviction. In order to get this charge, the DWI case needs to be dismissed and refiled as a reckless driving charge in court. It takes a diligent and knowledgeable DWI attorney to study the evidence in order to negotiate a reduction in the case.

DWI in Texas 2nd Offense

Another factor in negotiations is to try and reduce the case to a level where it is not a felony conviction. This is a comprise where the driver avoids a felony and the state still gets a conviction for future use if another DWI case should take place. A felony can be very detrimental for certain jobs and employment licensing.

Blood Alcohol Level in Texas

Another factor in negotiations is the blood alcohol level of the driver. If a breath or blood test was done, it will usually produce a test result with the alcohol level at the time of the test. The state will then make some assumptions about what the test was at the time of driving based on observations, time passed, and questions answered by the driver to the police. In Texas, the legal limit is .08 at the time of driving. An extremely high blood alcohol test can complicate plea negotiations for the best possible outcome for the driver.  There is another way to prove the case without an amount based on loss of mental or physical faculties. This route is a much more vague way to prove the case of intoxication.  There are many non-intoxicating factors that can cause a person to appear intoxicated when they are not.

How Much Does a DWI Cost in Texas?

Each lawyer has their own fee that they think is a fair charge for their services. But the cost for a felony DWI will run several thousand dollars in most cases beginning with a bondsman charging 10 percent. There will usually be other bond condition fees such as the ignition interlock device cost. This is a mandatory bond condition in Texas starting with a DWI 2nd offense charge. The monthly bond supervision fee can be around $60 per month paid usually to the probation department. Once the case is over, there will be court cost and fines. These fees will not apply if the case is dismissed or there was an acquittal by a judge or jury. But if there is an agreement in court or a verdict, the court costs can be as much as $500 and a 3rd-degree felony fine up to $10,000. The dollar amount of a DWI can really vary in range.

Texas Street Racing

Attorney Eric Torberson

Racing on Highway is a crime defined in the Texas Transportation Code Chapter 545.420. It has the potential of serious punishment including jail time and fines. This means under specific circumstances a person could go to jail for 20 years and have a $10,000 fine for this offense.

What is Texas Street Racing?

A person participates in:

  • A race
  • A vehicle speed competition or contest
  • A drag race or acceleration contest
  • A test of physical endurance of the operator of a vehicle, or
  • In connection with a drag race, an exhibition of vehicle speed or acceleration or to make a vehicle speed record

What Happens if You Get Caught Street Racing?

A first offense is a Class B misdemeanor with up to 6 months in jail and up to a $2,000 fine. Probation up to 2 years is also a possibility.

It is a Class A misdemeanor with up to a year in jail and $4,000 fine if:

  • Previously convicted 1 time of the same offense, or
  • At the time of the offense was operating the vehicle while intoxicated as defined in Texas Penal Code Ch. 49.01, or
  • At the time of the offense was in possession of an open container as defined by Texas Penal Code Ch. 49.031

It is a state jail felony with a range from 180 days to 2 years in jail and up to a $10,000 fine or up to 5 years probation if:

  • Previously convicted 2 times of the same offense

Its is a 3rd degree felony with punishment from 2 to 10 years and up to a $10,000 fine or up to 10 years probation if:

  • An individual suffered bodily injury

It is a 2d degree felony punishable from 2 to 20 years and up to a $10,000 fine or up to 10 years probation if:

  • An individual suffered serious bodily injury

See Texas Punishment page for more information.

Racing on Highway What Happens to my License?

When a driver is conviction of Racing on Highway in Texas, the Texas Transportation Code Chapter 521.350 determines that a driver’s license will be suspended for 1 year.

The person is eligible to receive an occupational license. If a person younger than 18 receives an occupation license, it is only authorized to be used for driving to school and home.

A person shall perform 10 hours of community service, which is required by the Texas Transportation Code. This is in addition to community service that is ordered under the court’s community supervision sentence. If the person is a resident of Texas without a license, the person will not be permitted to obtain a Texas driver’s license until the 10 hours of community service is completed.

A driver can complete the 10 hours of community service before the suspension period is up and apply for an early license reinstatement with the department.

What Happens if I Get Caught Driving During Suspension Period?

A person convicted of Driving While License Invalid under Ch 521.457 of the Texas Transportation Code, for driving during a license suspension for Racing on Highway, will have a 1 year license suspension from the conviction date of the DWLI. This is in addition to penalties related to the DWLI punishment. The department will not allow the driver to reinstate the driver’s license early.

What is the Drag Racing?

The Transportation Code 545.420 defines Drag Racing as:

A) two or more vehicles from a point side by side at accelerating speeds in a competitive attempt to outdistance each other; or

(B) one or more vehicles over a common selected course, from the same place to the same place, for the purpose of comparing the relative speeds or power of acceleration of the vehicle or vehicles in a specified distance or time.

What is Racing?

Race is defined the use of 1 or more vehicles in an attempt to:

(A) outgain or outdistance another vehicle or prevent another vehicle from passing;

(B) arrive at a given destination ahead of another vehicle or vehicles; or

(C) test the physical stamina or endurance of an operator over a long-distance driving route.

Can My Car Be Seized?

Yes. If there is an accident with property damage or personal injury, a peace officer shall require the vehicle taken to the nearest licensed vehicle storage facility. That is unless it is seized as evidence, in which case it can be taken to the officer’s designated storage facility. The driver is liable for all removal and storage facility fees to the facility before retrieving the vehicle.

Why Should I Hire Attorney Eric Torberson?

This criminal offense has serious consequences and to the prosecutors, presents a real danger to society. It is important to get an attorney who really cares about their clients. I handle every one of my cases with care and importance. It is extremely important to avoid a conviction for Racing on Highway. Call me or visit my website as soon as possible so I can get started. http://erictorberson.com

Interfering With Emergency Call

Interference Iphone

Usually this is an accusation is associated with other charges such as a Texas domestic violence charge known as assault family violence. It is known as Interference with a 911 call or Emergency Call for Assistance. Sec. 42.062. INTERFERENCE WITH EMERGENCY REQUEST FOR ASSISTANCE

What Happens When You Interfere With an Emergency Call?

Our experience is is that in the heat of the moment and tempers are high a real or not so real need to call 911 arises. The non-calling person knows that this will cause the police to be called to the house or current location. Sometimes a person grabs the phone away from the caller and hides it. Sometimes the phone is damaged by being thrown on the floor or against the wall. Like most statutes, emergency is defined as “a condition or circumstance in which any individual is or is reasonably believed by the individual making a call or requesting assistance to be in fear of imminent assault or in which property is or is reasonably believed by the individual making the call or requesting assistance to be in imminent danger of damage or destruction.” It’s considered an offense if the “individual recklessly renders unusable an electronic communications device.” So it does not necessarily have to be a phone. 


Is Interfering With a 911 Call a Felony in Texas?

The short answer is no. It will be a Class A Misdemeanor -Texas unless a person has been previously convicted of interfering with an emergency call.

Sec. 12.21. CLASS A MISDEMEANOR. An individual adjudged guilty of a Class A misdemeanor shall be punished by:(1) a fine not to exceed $4,000;(2) confinement in jail for a term not to exceed one year; or (3) both such fine and confinement.

Has There Been a Prior Conviction for Interfering with Emergency Call?

If so,  the next accusation becomes a state jail felony charge.  

State Jail Felony

Interference With Emergency Request for Assistance Texas Now What?

The cases are not alway cut and dried. Seeking experienced legal counsel is the first and most important action to take. Call or contact https://www.erictorberson.com for excellent legal advice. When issues settle down and the smoke clears, often there is a clear road to a resolution that will save a person’s future. 

How Do Stop Someone From Needlessly Calling 911?

The short answer is that you do not if you don’t want to go to jail. Beating the case later in court is a different story. For instance if the caller is hypothetically hallucinating on drugs and thinks you are attacking him or her and you are not, then it would not be a reasonable belief by the individual that they need emergency help. That really will not save a person from going to jail for the night in a lot of cases, unless the officers are experienced and patient in their investigation. They may even need to have dealt with this household or person in the past to know of the unreasonable beliefs. 

Does It Help That I’m Still With My Spouse or Significant Other After Interference with Emergency Communication?

Yes. The alleged victims stance on the matter is important going forward. The case will most likely be set in court for a while and the current relationship can help the case turn out in a more positive manner. The charge of interference with emergency telephone call is not the end of the world and can be work out for the accused. 

Giddings Texas DWI Lawyer

Introduction

When it comes to navigating the complex legal landscape surrounding Driving While Intoxicated (DWI) cases in Giddings, Texas, you need a lawyer who understands the law and can advocate for your rights. Attorney Eric Torberson, a seasoned DWI lawyer, is committed to providing legal support, ensuring that you have the best possible defense.

Understanding Giddings DWI Laws

Giddings DWI

Giddings, Texas, has DWI laws designed to maintain public safety. Understanding the legal framework is crucial for building a defense. Eric, being an experienced DWI attorney, is well-versed in these laws, ensuring that he can craft a defense for your unique situation.

Consequences of a DWI Conviction

A DWI conviction in Giddings can have severe consequences, including fines, license suspension, and even jail time. A Giddings DWI lawyer is dedicated to mitigating these consequences, leveraging their expertise to explore every legal avenue and secure the best possible outcome for our clients.

Why Choose Eric?

Proven Track Record

Eric Torbeson’s track record speaks for itself. He have successfully represented numerous clients facing DWI charges in Lee County, Texas earning a reputation for excellence in the legal community. His results-driven approach and commitment to our clients set us apart as the go-to choice for those in need of a skilled DWI defense lawyer.

Exceptional Experience

With a deep understanding of Giddings DWI laws. We combine legal expertise with a strategic mindset, ensuring that no stone is unturned in building a defense. When you choose Eric, you’re choosing a team that is dedicated to protecting your rights and securing your future.

Driver License Hearing

The Department of Motor Vehicles (DMV) hearing is a critical aspect of a DWI case. A competent Giddings DWI attorney is well-versed in drivers license procedures, using his knowledge to challenge license suspensions and fight for your driving privileges.

Court Proceedings

Eric’s courtroom experience are unmatched. He approaches court proceedings with a strategic mindset, presenting compelling arguments and leveraging our knowledge of Giddings DWI laws to build a defense. Whether negotiating a plea deal or taking your case to trial, he is relentless in the pursuit of justice.

Client Testimonials

Satisfied Clients Speak

“Choosing this legal team was the best decision I made during a challenging time in my life. His dedication, expertise, and unwavering support made all the difference in securing a favorable outcome for my DWI case.” – John M.

“I cannot express my gratitude enough for the exceptional legal representation I received. The team’s attention to detail and commitment to my case were evident from day one. Highly recommended!” – Sarah T.

Contact Today

If you find yourself facing DWI charges in Giddings, Texas, don’t leave your future to chance. Eric’s knowledge as a DWI lawyer makes him ready to stand by your side, providing the legal guidance and advocacy you need. Contact him today for a confidential consultation and take the first step towards securing your rights and your future. Take a look at Giddings Texas Defense Attorney

Texas Criminal Defense Attorney Eric Torberson

888-234-5550

Legal challenges can cast a shadow over anyone’s life, and when it comes to navigating the complexities of the legal system in Giddings, Texas, having seasoned criminal defense attorney Eric Torberson by your side is not just an option; it’s a necessity. In this article, we delve into the unparalleled legal expertise offered by the Giddings, Texas Criminal Defense Attorney, highlighting the key facets that set us apart in providing top-notch legal representation.

Unmatched Experience in Giddings Jurisprudence

Our team boasts a wealth of experience in Giddings and the surrounding areas, with an in-depth understanding of the local legal landscape. Navigating through the intricate web of Giddings’ legal system requires more than just legal knowledge; it demands an intimate familiarity with the local nuances that can significantly impact the outcome of a case.

Expertise in Diverse Criminal Defense Areas

Drug Offenses

When facing drug-related charges, having an attorney who is well-versed in the ever-evolving landscape of drug laws is crucial. Our Giddings-based legal team specializes in defending clients against drug offenses, leveraging a nuanced understanding of both state and federal regulations.

Assault and Violent Crimes

In cases involving assault and violent crimes, our defense strategies are tailored to the unique circumstances of each case. We understand the importance of a swift and strategic defense to protect the rights and interests of our clients.

DWI and Traffic Offenses

Navigating the legal repercussions of DWI and traffic offenses can be daunting, but with our Giddings Criminal Defense Attorney, you gain access to a team that excels in crafting effective defenses to mitigate the impact of these charges.

Client-Centric Approach

At the heart of our practice is a commitment to putting our clients first. We recognize the stress and uncertainty that legal matters bring, and our team strives to provide not just legal representation but also emotional support throughout the legal process.

Tailored Legal Strategies

Understanding that no two cases are identical, we adopt a personalized approach to legal representation. Our Giddings Criminal Defense Attorney carefully assesses the specifics of each case, tailoring our strategies to achieve the best possible outcome for our clients.

Transparency and Communication

In the legal realm, communication is paramount. We pride ourselves on maintaining open lines of communication with our clients, ensuring they are well-informed about the progress of their case. Our commitment to transparency builds trust and empowers our clients to make informed decisions.

Success Stories That Speak Volumes

Our track record of successful case outcomes stands as a testament to our unwavering commitment to excellence. We have successfully defended numerous clients in Giddings against a spectrum of criminal charges, earning a reputation for being formidable advocates in the courtroom.

Navigating the Legal Landscape with Confidence

Legal challenges can be overwhelming, but with the Giddings, Texas Criminal Defense Attorney at your side, you can face them with confidence. Our comprehensive legal expertise, client-centric approach, and proven track record position us as the go-to legal team in Giddings and beyond.

If you find yourself in need of unparalleled legal representation, don’t settle for anything less than the best. Contact Giddings, Texas Criminal Defense Attorney Eric Torberson, and let us navigate the legal landscape for you.


If you want to read more information onour Website just visit –> Giddings Texas Defense Attorney

Should I get a lawyer for a traffic ticket in Texas?

(888)234-5550

Traffic tickets can be annoying as we all know. Do not ignore them. I frequently get calls about people unable to renew their driver license because of traffic tickets. You want to keep them off of your record. A conviction stays on your record forever. Some courts will look for other tickets on your record and make worse offers to resolve subsequent tickets. Call for more details.

Texas Traffic Tickets

Types of traffic tickets in Texas

  • Speeding
  • Expired Registration
  • Failure to control speed
  • Following to closely
  • Running red light
  • Fail to signal
  • DUI
  • No headlights
  • No driver license
  • Many more

How do I get out of a traffic ticket in Texas?

Getting out of a traffic ticket in Texas can happen a few ways. For more information take a look at http://erictorberson.com/how-can-i-get-out-of-a-ticket-in-texas. There is defensive driving, deferred disposition, jury or judge trial acquittal, or a dismissal.

Check for citations by Texas Highway Patrol

Check the following site for citations with 2 years by Texas Highway Patrol here.

See our home page for more information http://erictorberson.com.

Need a Texas DWI Lawyer?

(888)234-5550

As a Texas DWI lawyer I know it is a legal professional that specializes in defending individuals charged with Driving While Intoxicated (DWI) offenses in the state of Texas. DWI is a serious offense, and a conviction can lead to significant consequences, including fines, license suspension, probation, and even jail time. DWI lawyers are experienced in handling these cases and are familiar with the specific laws and procedures related to DWI charges in Texas.

Here are some of the key roles and responsibilities of a Texas DWI lawyer:

  1. Legal Representation: A Texas DWI lawyer provides legal representation for individuals charged with DWI, guiding them through the legal process and advocating for their rights.
  2. Case Assessment: The lawyer will review the details of the DWI case, including evidence, police reports, and witness statements, to assess the strength of the prosecution’s case and identify any potential weaknesses or defenses.
  3. Legal Advice: DWI lawyers offer legal advice to their clients, explaining the charges they are facing, the potential consequences, and the available legal options.
  4. Defense Strategy: Based on the circumstances of the case, a DWI lawyer will develop a defense strategy to challenge the prosecution’s evidence and protect their client’s interests.
  5. Negotiations: In some cases, a DWI lawyer may negotiate with the prosecution to seek reduced charges or penalties through a plea bargain.
  6. Court Representation: If the case goes to trial, a Texas DWI lawyer will represent their client in court, selecting a jury, presenting evidence, cross-examining witnesses, and making legal arguments on their behalf.
  7. Expert Witnesses: In certain situations, DWI lawyers may consult with or call upon expert witnesses, such as forensic toxicologists or accident reconstruction specialists, to support their defense.
  8. License Issues: DWI lawyers can also assist with matters related to driver’s license suspension or help their clients obtain an occupational driver license if necessary.
  9. Visit here for cost of a DWI lawyer https://www.erictorberson.com/how-much-does-a-dwi-lawyer-cost-in-texas/

It’s important to know that DWI laws can be complex and vary by state. If you are facing DWI charges in Texas, it is crucial to consult with a qualified and experienced DWI lawyer who is familiar with the specific laws and procedures in Texas. An experienced lawyer can provide the best chance of building a strong defense and minimizing the potential consequences associated with a DWI conviction.

Remember that finding the right DWI lawyer is crucial to building a strong defense. Take the time to research and choose a lawyer who has experience and a track record of success in handling DWI cases in Texas.

Visit the home page for more on our firm https://www.erictorberson.com

Domestic Violence Lawyer

An assault family violence or domestic violence lawyer is a legal professional who specializes in handling cases related to domestic violence. Domestic violence involves behavior or violence that occur within a household or an intimate relationship. Defense lawyers are experienced in advocating for clients charged with domestic violence, in other words, defending individuals accused of domestic violence.

Here are some of the typical roles and responsibilities of a domestic violence lawyer:

  1. Legal Representation: A domestic violence lawyer can represent victims of domestic violence seeking protection orders or pursuing legal action against their abusers. On the other hand, they can also defend individuals who have been accused of domestic violence.
  2. Protective Orders: On the other side prosecutors help victims obtain restraining orders, protection orders, or orders of protection to ensure their safety and keep the abuser away.
  3. Legal Advice: Domestic violence lawyers provide legal counsel, guiding them through their legal options and helping them understand their rights.
  4. Evidence Collection: For both victims and defendants, domestic violence lawyers gather evidence to support their case, such as medical records, witness statements, or police reports.
  5. Court Representation: Domestic violence lawyers represent their clients in court, presenting their case, questioning witnesses, and arguing on their behalf.
  6. Plea Negotiations: In some instances, domestic violence lawyers may engage in negotiations with the opposing party to reach settlements or plea bargains.
  7. Crisis Intervention: For victims, domestic violence prosecutors may offer emotional support and connect them with resources like shelters, counseling services, and support groups. Prosecutors can also help detect whether the victim is being honest.
  8. Education: Domestic violence lawyers may conduct educational outreach about domestic violence laws and resources available to victims in the community.

It’s essential to seek a qualified and experienced domestic violence lawyer if you are involved in a domestic violence or assault family violence situation, either as a victim or an accused party. These legal professionals can offer vital assistance, protection, and guidance through a challenging and sensitive legal process.

For more information about the firm visit https://www.erictorberson.com

Texas DUI Lawyer

Call 888-234-5550 for more information

Is a DUI the same as a DWI?

No. A DUI in Texas can only be a minor, under 21 years old, with any detectable amount of alcohol in their system. A DWI in Texas is anyone with .08 or above blood alcohol content and/or drugs causing intoxication.

What is the average cost of a DUI in Texas?

Since every lawyer charges differently I will just refer to the DUI fines and court costs. The fine can be up to $500 for a DUI with no priors and court costs are around $100. Any classes that may be taken will cost for enrollment. The big cost

Do I need a lawyer for a DUI in Texas?

It is advisable to let a lawyer trained to handle these matters help you through the process. A person not knowing court room procedures or how to negotiate will not be as effective to achieve a positive result to his or her case.

Can I get a DUI dismissed in Texas?

Yes. The first thing I look at is if the police stop legal. There has to be probable cause to stop a car. Next question is does the under 21 driver have any amount of alcohol in their system. Sometimes there is no proof other than the officer saying they smell alcohol. It can be difficult to disprove this if the officer never tests the driver for alcohol through field sobriety tests or breath/blood test. This happens in quite a few cases where only smell is alleged. Sometimes the driver admits to drinking earlier but the alcohol may have already eliminated from the person’s system.

How do I keep a DUI off my record?

There are programs such as deferred disposition where the driver can take an alcohol awareness class and/or community service and after 3 or 6 months the case will be dismissed. Many times these are reserved for people with no criminal background but not always. Other factors may play a difficult role in qualification such as a car accident, drugs in the car, behavior while being questioned and other relevant factors.

How much is a DUI lawyer in Texas?

As I stated earlier a Driving Under the Influence is different than a Driving While Intoxicated. A DUI is a class C misdemeanor in Texas. Of course every lawyer will have their own fees, but a DUI is not quite as serious as a DWI which start at class B misdemeanors.

For more information visit our home page http://erictorberson.com

How can I get out of a ticket in Texas?

There are a few different options to get out of a ticket in Texas. If you qualify for defensive driving and desire to take defensive driving, that is one way. Another option is to request a judge or jury trial and show up to the trial date to fight the ticket. You will need to be more convincing to the judge or jury than the officer. If the officer does not show up many times the ticket will be dismissed by the prosecutor. It is not a guarantee, they may try to postpone, or continue, the trial to another day.

What to say to a cop to get you out of a ticket

Police are human beings with good and bad days. They run into all sorts of people, kind, rude and everything in between. Your chances of getting a warning instead of a ticket are greatly reduced if you are rude. Becoming defensive and angry on the roadside will almost guarantee a traffic ticket is coming your way. My personal experience is that I smile and say hello when the officer walks up to my window. I hand my license and insurance over. One time the officer gave me a warning. My second speeding stop several years later I was given a regular speeding ticket instead of a construction zone speeding ticket. That break allowed me to get the ticket dismissed and keep it off my record. Construction zone tickets in Texas are not supposed be allowed to do defensive driving.

Can I just pay my ticket and not got to court?

Yes, paying a ticket is permissible but it will stay on your record. Insurance companies look at a driving record as far back as 5 years and charge accordingly to higher risk drivers.

How to get old tickets dismissed in Texas

It is helpful to have a lawyer deal with this. I just got about 20 tickets dismissed recently for a client in Hays County, Tx. The tickets were over 10 years old. My client skipped out and moved out of state. The problem he was having is that he could not renew his Texas Driver License until the tickets were resolved. Resolving the tickets allowed the Omni with the DPS to be removed from his license. I negotiated that he pay the $30 per ticket Omni fee on just 4 of the several tickets. This saved my client several hundred dollars.

How long do unpaid traffic tickets stay on your record in Texas?

They stay forever or until resolved. The Omni fee is sent to the DPS by the court and a person cannot renew their driver license until the omni is lifted. That will not happen until the ticket is resolved at the court. The court will then send the Omni release to DPS after a $30 fee is paid to the court.

How do I check if I have a suspended Texas License?

Drivers can check on this website https://txapps.texas.gov/txapp/txdps/dleligibility/login.do to find out the status of their Texas Driver License.

How do I check if I owe tickets?

If you think you missed court for a ticket you can check this following website https://www.texasfailuretoappear.com/search.php With your license number and date birth any tickets that are held in omni status can be found here.

How do I get rid of traffic warrants in Texas?

When I do a letter of representation to a court they put the case on a docket. This allows me to negotiate with the prosecutor. Once we get the case set for a resolution (which includes the fees, fines, and/or restitution)I discuss the terms with my client. I am usually able negotiate a favorable resolution for my clients. Older cases can have advantages because witnesses are usually long gone and unavailable.

Take a look at our homepage for more information http://erictorberson.com

How do I get my license back after suspension in Texas?

Getting your Texas driver license back will depend on the reason it is suspended. In the mean time you can get an Occupational Driver License. This is not the same as a hardship license in Texas. Those are utilized by teenagers prior to being licensed.

How do I get my license reinstated?

Sometimes it is as simple as paying a reinstatement fee. For someone arrested for DWI or DUI in Texas, their license likely was suspended for a period of time. For a minor (under 21) first time DUI or DWI it would be 60 days. The minimum suspension for an adult charged with DWI is 90 days if a voluntary breath or blood test were administered. A $125 reinstatement fee is paid to the Texas DPS here below.

https://www.dps.texas.gov/section/driver-license/faq/section-7-reinstatement-fees

How much is a reinstatement fee in Texas?

Generally a reinstatement fee is $125. There is a small fee if using a card to pay it online. If there is an occupational license getting filed there is also a $10 fee for that per year that it is active.

Can you check to see if your license is suspended in Texas?

Absolutely, the link to check your Texas license status is right here https://txapps.texas.gov/txapp/txdps/dleligibility/login.do

How do you get an occupational license in Texas?

We do occupational driver license’s in Texas. You will need to have SR-22 insurance either through your current insurance or another insurance company. The occupational license will only be valid with SR-22 insurance on file with the DPS. Also a driver must order a Type AR Certified Abstract of Driving Record. A petition and order is then filed with a court and a judge must sign the order for the license to become valid. Once approved and signed, the order is certified at the clerk’s office and sent to the DPS with the $10 occupational license fee. Certain details in the petition will vary depending on the reason for the driver license suspension.

How much can I drive with an Occupational Driver License?

The statute allows 4 hours of driving every 24 hours. This can be expanded to 12 hours every 24 hours with a showing of necessity. The signed order must include:

  • the hours of the day, days of the week allowed driving
  • the reason the driver is driving
  • the areas or routes of travel permitted
  • the person is restricted to a vehicle with an ignition interlock device if required

If there was a DWI involving involving alcohol an ignition interlock device may already be installed on the vehicle. The good news is that this will help expand the hours and routes a person will be able to drive. The occupational license will be valid 24 hours and anywhere in the state.

How much is an occupational license in Texas?

The fees for a Texas Occupational License vary depending on what caused the driver license suspension. Contact our office to get a quote. Below are some estimated costs involved:

  • Reinstatement fee to DPS $125
  • SR-22 $100/mo
  • Order driving record $20
  • Court filing fee $50-$300
  • Attorney fee-call or message us it depends
  • Ignition interlock device $100/mo
  • Ignition interlock device fee to DPS $10
  • Occupational license fee to DPS $10

Can I get an occupational license for a CDL?

Sec. 521.242 of the Texas Transportation Code prevents a CDL driver from operating a commercial vehicle with an occupational license.

Be sure and contact us to help with your driver license at https://www.erictorberson.com/

Robbery in Texas

What is Robbery?

Robbery in Texas occurs when committing theft with intent to maintain control of the stolen property while intentionally, knowingly, or recklessly causing bodily injury to another.

Robbery can also be intentionally or knowingly threatening or placing another in fear of imminent bodily injury.

Robbery is defined under Texas Penal Code 29.02.

What is the Punishment for Robbery in Texas?

Robbery in Texas is a 2nd degree felony. That either up to 10 years probation or 2 to 20 years in prison and up to a $10,000 fine.

What Does Aggravated Robbery Mean?

Aggravated Robbery is the act of committing Robbery and:

  • Causes serious bodily injury to another
  • Uses or exhibits a deadly weapon (Gun or Knife etc) or
  • Causes serious bodily injury to another person or threatens or places another in fear of imminent bodily injury or death, if the other person is:
    • 65 years of age or older or
    • Disabled person
    • Disabled person means with a mental, physical, or developmental disability who is substantially unable to protect him or herself from harm.

What is the Punishment for Aggravated Robbery?

Aggravated Robbery is a 1st degree felony punishable by up to 10 years on probation or 5 to 99 years in prison and up to a 10,000 fine.

Is it Still Robbery Pointing a Fake Gun?

If the gun is a toy, the crime is Robbery and not Aggravated Robbery. The robber needs a real gun to commit Aggravated Robbery.

For more information check out the homepage http://erictorberson.com

How to Fight a DUI Without a Lawyer

It is not advisable to fight a DUI or any criminal charge in court without a lawyer. But since you are reading this there must be a financial or other reason that you are choosing not to hire a legal counsel. Depending on the circumstances and how honest the prosecutor is, there may be a chance.

Why is the Fourth Amendment Important?

The very first issue you need to look at in a case is why were you stopped or detained? The Fourth Amendment protects people against illegal search and seizure.

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

Amendment IV to the U.S. Constitution

The police need reasonable suspicion or probable cause to stopped a vehicle for instance. If the police do not have a good reason than the case is already bad and should be dismissed. It may take a trained lawyer to discovery whether there is a 4th amendment violation unless it is blatantly obvious.

If the prosecutor does not dismiss the case when there is an obvious 4th amendment violation then a person representing themself (pro se) has a big problem. There is an integrity issue with the state and a need for legal counsel to file the proper motion to suppress. This red flag may also mean there are other issues being hidden from the accused. This really exists in our courts to this day.

The Police Didn’t Read Me My Rights

The police did not read me my rights-So is my case dismissed? Not necessarily. The police only have to read a person their rights if the person is not free to leave or under arrest. So in DUI and DWI cases the police in Texas consider it being ‘detained’ when they are asking initial roadside questions. But for certain once the handcuffs are on and a person is told they are being placed under arrest, that is when the miranda rights come into play. Although a driver is not free to leave when the police are asking roadside question, there can be a gray area. This is where a good lawyer will research the issue. It can be complicated and beyond this blog post, but there might be a miranda violation without being arrested.

What Evidence Does The Prosecutor Have?

It’s if very important to know what evidence you are entitled to. This is pretty much all of the evidence that exists. But in most cases you have to properly ask for it. Being a pro se defendant many jurisdictions will not give it to you and will make you come into the office at a prescribed time and view the evidence. A pro se defendant needs to know what to ask and look for with the evidence. There are police reports, breath or blood test, audio, video, photos etc.

Can You go to Trial Without a Lawyer?

If it wasn’t already tough up to this point, it can definitely be as a pro se in trial. Even an attorney gets nervous in trial. Picking a jury can be difficult and knowing how to present questions to the jury panel. The state is already experienced at least a little in this area. The accused needs to do some research about how jury selection (voir dire) takes place. Maybe ask a local lawyer for advice and get the jury questionnaires ahead of the day for trial if possible to study the jury panel.

Knowing what questions to ask witnesses is very important. Also knowing what questions the state cannot ask can be equally as important. The other lawyer will try to lead their witness into saying a lot more than allowed, including hearsay statements.

It is important to know that the accuse has a right not to testify. This should have been talked about in jury selection. Some people just presume guilt when a person remains silent and does not tell their side of the story. But there are reasons, other than guilt, why a person does not testify.

Closing argument finishes up the trial where the parties summarize their side of the case. There are time limitations and limits to what can be said about the case. One thing for sure, it is not a time to leave the jury with a bad impression.

Conclusion

This only covers a fraction of the issues about a criminal case such as a DUI or DWI. If an accused person just cannot afford a lawyer there are court appointed lawyer options for most indigent people. If that is not an option, or the court appointed lawyer will not go to trial, a pro se trial is a last resort. Most lawyers will take a few minutes to explain how a trial works. It is worth a phone call to attempt to ask a few questions. If you have more questions take a look at my home page https://www.erictorberson.com or leave a message in my contact form.

Unauthorized Use of a Motor Vehicle Texas

What is Unauthorized Use of a Motor Vehicle?

Unauthorized use of a motor vehicle is intentionally or knowingly operating another’s boat, airplane, or motor vehicle without the other’s consent.

What is “Operate” a Motor Vehicle?

Operate doe not necessarily mean driving. Case law has determined that it means “took action to affect the functioning of his vehicle in a manner that would enable the vehicle’s use”

What is the Punishment for Unauthorized Use of a Motor Vehicle in Texas?

Unauthorized Use of a Motor Vehicle in Texas is a state jail felony. This means up to a maximum of a $10,000 fine and/or 2 years in prison (state jail).

The Difference Between Joyridings and Auto Theft

Joyriding is unauthorized use of a motor vehicle without the proof of intent to steal the vehicle. Auto theft is an intention of not returning the vehicle.

What is the Value of the Stolen Property?

The stolen property is valued at the fair market value of the property at the time and place of the offense. If that cannot be determined it is the cost of replacing the property within a reasonable amount of time after the theft.

For more information start at our home page at http://erictorberson.com

Leaving the Scene of a Single Car Accident in Texas

This specifically applies to a situation where there are no injuries and the accident involves a situation such as just a one car accident. The damage is just to the car that crashed and nobody else’s property or roadside property damage. There are other specifics of the Texas Transportation Code Section 550 that cover injuries, damage, and/or death.

Let’s say that a vehicle is driving on a roadway and must swerve to miss a dog or deer and subsequently drives off the road and crashes. The accident here only damages the driver’s car. Assuming no bodily injury for this situation, this is an accident resulting in vehicle damage only.

If the damage to the vehicle is

“to the extent that it cannot be normally and safely driven shall immediately by the quickest means of communication give notice of the accident” to local law enforcement.

The ‘quickest means possible’ is not clearly defined. It might be a cell phone call immediately. It might mean that a person might report it the next day after being checked out by medical personnel. A passer by may give the person a ride to a safe place because remaining at the scene is not a suitable place for a person to wait.

A law enforcement officer shall make a report in a case where the damage to any one vehicle is apparently $1,000 or more. This report shall be electronically filed with the DPS no later than 10 days after the accident.

What if I can normally and safely drive my vehicle even though it has over a $1,000 damage?

Even though the Texas Transportation Code Section 550.062 states that a law enforcement officer shall complete a report it is not clear what happens if they do not. There does not appear to be a duty for a person to report an accident of over $1,000 damage is their vehicle can be normally and safely driven.

If you are looking for more information outside of property damage on the just the vehicle driver only here is another blog post http://erictorberson.com/leaving-the-scene-of-an-accident.

For more information about this website take a look at the home page https://www.erictorberson.com.

Restraining Order Texas

Did you mean Protective Order vs Restraining Order?

What is the difference between a Restraining Order and a Protective Order?

Restraining OrderProtective Order
What does it do?In civil cases it orders someone to do or refrain from doing something to protect property or a child in family casesIt orders someone to leave a violence victim alone from harm, threatening or coming near a person for a certain period of time

What is a Temporary Ex Parte Protective Order?

‘Ex Parte’ means contacting the court without the other side being involved. An application is filled out and filed with the court clerk.

Texas Family Code Sec. 82.009 requires and applicant to provide 1) a detailed description of the facts and circumstances of the alleged family violence and need for a protective order and 2) be signed by each applicant under oath that the described circumstances in the application are true and correct to the best knowledge and belief of the applicant(s).

The judge will review it for ‘clear and present danger of family violence’. If found, the judge will enter a temporary ex parte order for protection of the applicant without further notice or hearing. The court may order the respondent to do or not do a specified act.

The temporary ex parte order lasts a maximum of 20 days and may be extended on the court’s own motion or the applicant’s.

What is a Protective Order in Texas?

In case you meant to read about a protective order instead of restraining order I will discuss a P.O. first. An application for a protective order must be filled out by the victim or another adult member of the household and filed with the court clerk.

For a dating relationship any adult may apply for a protective order to protect a child. Also a prosecuting attorney or Department of Family and Protective Services may file for a P.O. for a victim.

According to Texas Family Code Sec. 82.004 the contents of the application must state:

(1) the name and county of residence of each applicant;

(2) the name and county of residence of each individual alleged to have committed family violence;

(3) the relationships between the applicants and the individual alleged to have committed family violence;

(4) a request for one or more protective orders; and (5) whether an applicant is receiving services from the Title IV-D agency in connection with a child support case and, if known, the agency case number for each open case.

Where can I file for a Protective Order?

The proper venue is in the county where the applicant resides, the respondent resides, or the county where the alleged family violence occurred.

Any individual affected by the protective order my file a Motion to Vacate and the court will set a date for a hearing on the motion as soon as possible.

Can a Temporary Ex Parte Protective Order Kick me out of my House?

The only way a person can be excluded from their residence by a temporary ex parte order is the following according to Texas Family Code Sec 83.006 when the applicant:

(1) files a sworn affidavit that provides a detailed description of the facts and circumstances requiring the exclusion of the person from the residence; and

(2) appears in person to testify at a temporary ex parte hearing to justify the issuance of the order without notice.

(b) Before the court may render a temporary ex parte order excluding a person from the person’s residence, the court must find from the required affidavit and testimony that:

(1) the applicant requesting the excluding order either resides on the premises or has resided there within 30 days before the date the application was filed;

(2) the person to be excluded has within the 30 days before the date the application was filed committed family violence against a member of the household; and

(3) there is a clear and present danger that the person to be excluded is likely to commit family violence against a member of the household.(c) The court may recess the hearing on a temporary ex parte order to contact the respondent by telephone and provide the respondent the opportunity to be present when the court resumes the hearing. Without regard to whether the respondent is able to be present at the hearing, the court shall resume the hearing before the end of the working day.

What About Filing a Protective Order During a Divorce or Child Custody Battle?

The application must be filed in the county where the applicant’s suit is pending or the county which the applicant resides.

What is in a Notice of Application for a Protective Order?

CONTENTS OF NOTICE OF APPLICATION: a) A notice of an application for a protective order must:(1) be styled “The State of Texas”;

(2) be signed by the clerk of the court under the court’s seal;

(3) contain the name and location of the court;

(4) show the date the application was filed;

(5) show the date notice of the application for a protective order was issued;

(6) show the date, time, and place of the hearing;

(7) show the file number;

(8) show the name of each applicant and each person alleged to have committed family violence;

(9) be directed to each person alleged to have committed family violence;

(10) show: (A) the name and address of the attorney for the applicant; or (B) if the applicant is not represented by an attorney:(i) the mailing address of the applicant; or(ii) if applicable, the name and mailing address of the person designated under Section 82.011; and

(11) contain the address of the clerk of the court. (b) The notice of an application for a protective order must state: “An application for a protective order has been filed in the court stated in this notice alleging that you have committed family violence. You may employ an attorney to defend you against this allegation. You or your attorney may, but are not required to, file a written answer to the application. Any answer must be filed before the hearing on the application. If you receive this notice within 48 hours before the time set for the hearing, you may request the court to reschedule the hearing not later than 14 days after the date set for the hearing. If you do not attend the hearing, a default judgment may be taken and a protective order may be issued against you.”

How do I know if I have a Protective Order Hearing?

This does not apply to an Temporary Ex Parte Protective Order.

A respondent is entitled to notice of the application of a protective order. The service of notice of a protective order is done in the same way as a citation under the Texas Rules of Civil Procedure Rule 106 such as is filed in a lawsuit or a divorce. Service by publication is not allowed.

How do I know if I have a Protective Order against me?

A protective order signed by the judge must be delivered to the respondent to be valid. Under Texas Family Code Sec 85.041 it shall be delivered in one of the following ways:

(1) delivered to the respondent as provided by Rule 21a, Texas Rules of Civil Procedure;

(2) served in the same manner as a writ of injunction; or

(3) served in open court at the close of the hearing as provided by this section.

(b) The court shall serve an order in open court to a respondent who is present at the hearing by giving to the respondent a copy of the order, reduced to writing and signed by the judge or master. A certified copy of the signed order shall be given to the applicant at the time the order is given to the respondent. If the applicant is not in court at the conclusion of the hearing, the clerk of the court shall mail a certified copy of the order to the applicant not later than the third business day after the date the hearing is concluded. (c) If the order has not been reduced to writing, the court shall give notice orally to a respondent who is present at the hearing of the part of the order that contains prohibitions under Section 85.022 or any other part of the order that contains provisions necessary to prevent further family violence. The clerk of the court shall mail a copy of the order to the respondent and a certified copy of the order to the applicant not later than the third business day after the date the hearing is concluded. (d) If the respondent is not present at the hearing and the order has been reduced to writing at the conclusion of the hearing, the clerk of the court shall immediately provide a certified copy of the order to the applicant and mail a copy of the order to the respondent not later than the third business day after the date the hearing is concluded.

What is a Magistrates Emergency Protection Order?

After an arrest for a family violence (or sexual assault, indecent assault, aggravated sexual assault just to name a few others) an order for emergency protection may be issued because of a concern of the magistrate, victim, guardian of victim, peace officer, or attorney for the state.

The emergency protection order from the magistrate is mandatory if there is serious bodily injury of the victim or use of a deadly weapon during the alleged assault.

The E.P.O may prohibit further family violence, communication in a threatening manner, and an indirect threat to the person protected. Also if the magistrate finds good cause the arrested party may be prohibited from going near the residence, place of employment, or child care facility or school of a child protected under this order.

Unless the person named in the E.P.O is a full time paid law peace officer firearms may be ordered to remain out of the arrested person’s possession.

Will an Emergency Protective Order Affect My License to Carry (LTC)?

The E.P.O. shall suspend a License to Carry a handgun under Subchapter H Chapter 411 of the Government Code.

How long does a Emergency Protective Order last?

The E.P.O. lasts at least 31 to 61 days if not involving a deadly weapon. If the arrested person allegedly used a deadly weapon the length of the E.P.O. is a minimum of 61 to 91 days. The order can be modified in a noticed hearing if unworkable.

No Deadly WeaponAllegedly Used Deadly Weapon
At least 31-61 daysAt least 61-91 days

What is a Restraining Orders vs. Protective Order?

A Temporary Restraining Order or a Restraining Order’s purpose is to preserve status quo of a situation at the last actual peaceable, non-contested status that preceded the controversy.

The order can be prohibitive or mandatory. Prohibitive orders would strictly prohibit a party from taking certain actions as opposed to requiring an action. Sometimes order or injunctions require an action that is mandatory to maintain the status quo such as requiring a person to maintain property from loss, damage or destruction.

Unless a T.R.O is for a divorce case with children and the T.R.O. is seeking to attach a child there is no need for it to verified or an affidavit attached.

For more information on protective orders click this previous blog link http://erictorberson.com/protective-order-texas.

For more information about this law site check out the home page at http://erictorberson.com.

How long is your license suspended for a DWI in Texas?

A driver’s license is suspended for differing amounts of time depending on how old the driver is and whether there are previous suspensions or convictions in the driver’s past. Below is a chart showing driver’s license suspension periods for DUI and DWI charges.

This chart below is the suspension periods based on the DPS Administrative License Revocation hearing results. Also these apply if the driver does not request a hearing within 15 days of refusal or failure to provide a specimen.

AccusationDL Suspension Driver under 21DL Suspension Driver 21 an up
DUI (minor only) or DWI who consensual breath/blood test failure with no priors60 days90 days
DUI (minor) or DWI (prior within 10 years) consensual test breath/blood failure with prior120 days1 year
DUI with 2 or more prior convictions180 days
DUI or DWI (prior within 10 years) refusal with no prior180 days180 days
DUI or DWI refusal with prior 2 years2 years

The suspension periods for the actual criminal court cases with the different DUI and DWI levels will have additional possible suspension periods to be aware of.

Can I drive while my license is suspended?

You need to get an occupation driver license. For more information about a Texas Occupational Driver’s License click the following link http://erictorberson.com/how-do-i-get-my-license-back-after-suspension-in-texas

For more information look at the home page and list of topics in the pages and blog posts http://erictorberson.com

Recording a Conversation in Texas

Texas is a one party consent law state. This means if you are one of the parties to the conversation and want to record it you can. If you are not a party to the conversation you need to have consent of one of the participants to record the conversation.

This law applies to ‘in person’ or ‘electronic’ conversations. It is a 2nd degree felony to violate Texas Penal Code 16.02 Unlawful Interception, Use, or Disclosure of Wire, Oral, or Electronic Communications.

The Texas Code of Criminal Procedure defines “Oral Communications” below-

(19) “Oral communication” means a communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation. The term does not include an electronic communication.

For more information visit the home page at http://erictorberson.com

Federal Marijuana Legalization

The current federal law, as of September 2020, designates marijuana as an illegal drug. It is listed as a schedule 1 drug by the DEA. Schedule 1 drugs are considered to not have medical value and are a high potential for abuse. Another drug listed as a schedule 1 drug is heroin. Schedule 1 and 2 have the most regulatory restrictions on research and access.

The More Act 

The Marijuana Opportunity, Reinvestment, and Expungement Act is a bill in the house of representatives that decriminalizes marijuana and removes it from the schedule 1 list of drugs. This a major ground breaking bill that also allows people to expunge their federal record of marijuana offenses.

SAFE Banking Act

The Secure and Enforcement Banking Act is a bill that has passed the house that will allow states that have legalized marijuana to engage in business with licensed marijuana businesses. Currently marijuana businesses are able to accept cash only. Their banking institutions are prevented from operating accounts with funds generated from marijuana sales.

Does the VA Prescribe Medical Marijuana?

The VA does not currently prescribe medical marijuana because it is a schedule 1 drug. The VA is a federal program and must follow federal laws. Hopefully the changes. Veterans in the VA system have to resort to opioids and other meds to cope with their issues that may be resolved by cannabis.

For more information about this site see https://www.erictorberson.com/

How Much Does a DWI Lawyer Cost?

Call us for more information 888-234-5550

The cost of a DWI lawyer depends on the severity of the DWI charge. DWI cases range from Class B misdemeanors up to 1st Degree Felony charges. The amount of work to do on a case and the potential consequences to a person charged with DWI will (or should) determine the amount charged.

DWI ChargeMax Severity of PunishmentLawyer Cost
Class B Misdemeanor6 months jail$3,000 and up
Class A Misdemeanor1 year jail$4,000 and up
State Jail Felony2 years state jail$6,000 and up
3rd Degree Felony10 years prison$8,000 and up
2nd Degree Felony20 years prison$10,000 and up
1st Degree Felonylife or 99 years prison$12,000 and up
Probable Minimal DWI Lawyer Cost

This chart is a a very loose estimate of what a possibly qualified lawyer would charge as a very minimum. These minimum costs are what the very lowest I would consider charging but only in special circumstances. In most cases my fees will be higher to reflect the work and time needed to properly represent my clients. I have trained several years in defending DUI and DWI cases around Texas.

A lawyer who is not experienced in DWI defense should be upfront with the potential client. It is an ethical duty a lawyer owes to clients.

A DWI case can be complicated and have devastating consequences on a person. This is why it is very important to select a lawyer trained in defending these cases in a competent manner.

For more information see my home page https://www.erictorberson.com

New Braunfels Tx DWI

9 Ways to Help Win a DWI in New Braunfels

  • Stop Drinking Alcohol While on Bond
  • Maintain a Healthy Diet and Exercise
  • Keep a Positive State of Mind
  • Some Clients Should Attend AA Meetings and/or Counseling
  • Do Not Talk About the Arrest to Other People
  • Be Patient the Case Takes Some Time
  • Have Faith That it Will Turn out Well-This Really Works
  • Hire an Attorney Trained in DWI, DUI, BWI Law
  • Be Prepared to Possibly Need to Hire an Expert Witness

What to do if You’ve Been Drinking and Get Pulled Over

When a driver is being stopped after they have been drinking it is important to correctly pull over. When the police flashers are visible in the mirror the driver should use a signal and safely pull over to the right. Everything is recorded and the negative actions will be in the police report.

New Braunfels DWI Attorneys

Not all attorneys train for the same cases or are willing to take the case to trial. It is important to find the lawyer who will do the best for your case. Your case may not need to go to trial and most cases actually do not. To be effective a lawyer needs to know how to take a DWI, DUI or BWI case to trial. Take a look at my web page here https://www.erictorberson.com/comal-county-criminal-lawyer.

Comal County Texas DWI Costs

The costs for a Comal County Tx DWI vary. There is a range depending on the severity of the DWI. The amounts below are not exact except for Max Court Fine

Level of DWIBailMax Court FineState Conviction Fine Range Depends if Previous Conviction was Within 36 months
Class B, DWI 1st$1,000-$2,000$2,000$3,000
Class A, DWI .15 or Higher$2,000-$4,000$4,000$6,000 (.15 BAC and up are always $6k)
Class A, DWI 2nd$2,000-$4,000$4,000$3,000-$6,000
State Jail, DWI Child <15 yr $6,000-$8,000$10,000$3,000-$6,000
3rd Degree Felony, DWI 3rd$8,000-$10,000$10,000$3,000-$6,000
2nd Degree Felony, DWI $12,000-$20,000$10,000$3,000-$6,000

How Do I Get Out of a DWI?

Getting out of a DWI can happen many ways. I have gotten them dismissed for various reasons before trial and have won several DWI cases in jury trials. A lawyer needs to determine if an expert is needed. Sometimes the probable cause may be bad or the breath or blood test. Each case is unique.

Texas DWI Blood Test

Texas and all other states test for Blood Alcohol Content (BAC) when a driver or operator is suspected of intoxication after stopped by the police. Some jurisdictions ask for a breath test first and then if refused, get a warrant. Some first ask for a blood test and get a warrant if it is refused.

What is Tested For in a DWI, BWI DUI Blood Test?

A blood test vial will be examined for alcohol and maybe drugs as well. It depends what the cop who makes the arrest requests. It takes extra work to test for both alcohol and drugs. If a person looks or acts intoxicated and does not smell of alcohol, the test may only test for drugs either prescription or illegal.

How Long Does it Take to Get Blood Alcohol Test Results?

Blood test results vary. In Texas it usually take a few months. The laboratories are usually backed up with blood testing. A test can be rushed but it will need to be a special case such as one involving a death.

Who Can Draw a Blood Specimen in a DWI Case?

A consensual blood alcohol specimen in Texas must be taken in a sanitary place and only by the following:

  • a physician
  • a qualified technician
  • a registered professional nurse
  • a licensed vocational nurser or
  • a licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic authorized to take a blood specimen subject to Texas Transportation Code 724.017 (c) below.

Texas Transportation Code 724.017 (c) says a licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic may take a blood specimen only if authorized by the medical director for the entity that employs the technician-intermediate or technician paramedic.

If a licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic takes a blood specimen at the request or order of a peace officer the peace officer must:

  • observe the taking of the specimen and
  • immediately take possession of the specimen for the purposes of establishing a chain of custody

What is a Medical Director?

A medical director is a licensed physician who supervises the provision of emergency medical services by a public or private entity that provides those services and employs one or more licensed or certified emergency medical technician-intermediates or emergency medical technician-paramedics.

Who Can Draw my Blood When I Refuse a Blood Test?

The above rule 724.017 is specified for a consensual (voluntary) blood draw. It does not apply to a refused blood test where a warrant is issued for a blood draw.

The Texas court of criminal appeals said in State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011) –

“We agree with the court of appeals’s determination that Chapter 724 is not controlling authority when it comes to determining the reasonableness of how a blood draw was performed under the Fourth Amendment. In Beeman v. State, we held that Chapter 724 is inapplicable when there is a warrant to draw blood; therefore, compliance with Chapter 724 is not necessary to satisfy the Fourth Amendment.[51] Whether a blood draw is conducted pursuant to a warrant or not, the assessment of reasonableness is purely a matter of Fourth Amendment law.”

In Cavazos v. State, 969 S.W.2d 454 (Tex. App. 1998) the court allowed a phlebotomist’s testimony to hold her qualified over the defense’s objection. “Phlebotomists are not per se qualified to draw blood, but may be qualified based on their job duties or experience Martinez v. State (Tex. App. 2014).” See the following:

“At trial, Williams testified that her title was “phlebotomist,” she was trained as a medical assistant, and her responsibilities include drawing blood. The hospital had employed her in that capacity for over one year and she also had three-and-a-half years’ experience drawing blood for a physician. She also had prior experience conducting police-ordered blood draws. Williams described the procedure for conducting a police-ordered blood sample and the importance of not using alcohol when drawing blood for a blood-alcohol analysis. Williams, following police protocol, also signed her name on the tube containing Martinez’s blood. Viewing the evidence in the light most favorable to the trial court’s ruling, we hold that the trial court did not abuse Martinez v. State (Tex. App. 2014)”

So a person can draw blood in a warrant case who has no formal training but merely on the job training-

“Becknauld testified that while she had no formal training, she had been a phlebotomist for the past twenty four years.” Torres v. State, 109 S.W.3d 602, 2003 WL 21283663 (Tex. App. 2003)

What Location is Used For a Blood Draw?

All law enforcement phlebotomy programs outline specific guidelines, typically following OSHA standards, requiring that all blood draws be conducted in a controlled setting and on a stable surface. This does not include a car trunk or a backseat.

Blood Test Kit

Prior to the blood draw the phlebotomist shall verify the expiration date on the outside container is not expired. The expiration date should coincide with the expiration dates on the enclosed tubes. There is a lot number on the outside container. The phlebotomist shall record the expiration date and the lot number on the Phlebotomy Blood Draw Report.

What Tubes Are Used For DWI Blood Tests?

The test kit has gray topped evacuated blood test tubes used for blood alcohol screening. The DWI and DUI alcohol testing specifically require gray topped tubes. They have two chemical additives inside. The additives are:

  • Sodium Fluoride an antiglycolytic agent which inhibits the metabolic breakdown of glucose (blood sugar) by blood cells.
  • Potassium Oxalate an anticoagulation agent.

The Phlebotomist SHALL NOT use expired tubes.

The phlebotomist shall verify that the integrity of the tube is intact and visually ensure that the chemical additive is present. This is very important. In 2019 the New Jersey tube manufacturer Becton Dickinson & Company had tubes that were missing the additives. The resulting test could have been inaccurate by being falsely high or low if tested more than two days after storage at room temperature.

The FDA documents the voluntary recall for BD Vacutainer Fluoride Tubes for Blood Alcohol determinations Part Number: 367001- https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfRES/res.cfm?id=173340

The FDA approved the termination of the recall on May 5, 2020- https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfCFR/CFRSearch.cfm?fr=7.55

More information is to come.

Click here for BAC Chart.

Take a look at my home page at http://erictorberson.com

DWI Case Intoxilyzer 9000

What is the Intoxilyzer 9000?

This machine is used to determine a driver’s blood alcohol content after being arrested for DWI or the other variations of operating such as DUI, DWI, BWI etc. The Intoxilyzer 9000 is the alcohol breath test machine that Texas and many other states use. Texas has used it since 2015 replacing the Intoxilyzer 5000.

The Intoxilyzer 9000 measures a breath test by giving grams of alcohol per 210 liters of breath. When testing a driver’s breath the machine operator will have the driver blow into the machine twice within 3 minutes. The two readings my not be farther apart than 0.02 g/210 L.

Lambert-Beer Law

The Intoxilyzer 9000 uses the Lambert-Beer Law which states that the amount of energy absorbed by a particular substance is proportional to the number of absorbing molecules in the sample. The amount of infrared energy absorbed in a breath sample is proportional to the amount of ethanol present in a breath sample blown into the sample chamber.

Infrared Spectrometry Breath Test

The Intoxilyzer 9000 uses infrared spectrometry (IR) to measure alcohol in breath. IR analysis is the absorption of infrared energy by alcohol molecules in breath. It measures the absorption of radiant energy by a substance.

IR is a lower frequency wavelength than the visible light that we see. The amount of IR energy absorbed by the breath sample is proportional to the amount of ethanol (alcohol). This is again measured as grams of alcohol per 210 liters of breath. The machine uses multiple wavelengths of IR energy to detect substances in the breath. The machine is supposed to be able to differentiate between different substances in the breath such as alcohol and acetone.

Diabetic Ketoacidosis

Diabetic ketoacidosis is a condition with diabetics where their breath smells like acetone. This is due to a high number of ketones in their blood. When the body breaks down fatty acids for energy the liver releases ketones. When there is too much glucose in the blood and not in the cells the ketones can rise too high.

Intoxilyzer Calibration

The machine like other machines requires maintenance. Part get worn and break. The 9000 needs to be calibrated or it is not accurate. It only measures as well as it is calibrated. There is a simulator solution that delivers a known measurement of alcohol to the machine to test and calibrate the instrument. This is a calibration verification.

Known solutions are created by technical supervisors and are called reference sample solutions. If the reference sample solution is miscalculated or wrong the machine’s test reading will be inaccurate as well. Two calibration verifications are conducted for each test done. The acceptable range for the calibration verification is 0.070 to 0.090 g/210 L. Any results outside this range will stop the test.

The solution must be between 33.80 to 34.20 degrees celsius. The instrument is supposed to stop the test if outside this range.

15 Minute Observation

For the breath test results to be valid the breath test operator must be in the presence of the test subject AT LEAST 15 minutes immediately before the test. This is to ensure that the subject has not placed any substance in their mouth. The 15 minute observation needs to be repeated if anything is put into the subjects mouth. This is to make sure there is no mouth alcohol present. Only certified breath test operators may conduct a 15 minute observation.

If the two tests differ by more than 0.02 g/210 L it would likely indicate residual or mouth alcohol and the breath test is invalid. This can happen if a person burps. That would be an inaccurate breath test because stomach gas would spike the alcohol IR reading.

The 9000 requires the operator to check the blue button by tapping it and typing yes that the 15 minute observation was conducted. The operator must sign in the box on the touchscreen.

Starting the Intoxilyzer 9000

After signing the box for the observation period the machine begins a testing sequence by checking itself. Any errors that the machine has are supposed to show. How do we know the self testing is not flawed? The machine conducts air blanks during the process and purges the sample chamber with room air. This result tested must be 0.00 or the 9000 is supposed to stop.

Once the machine is started the operator asks the subject to blow steadily into the machine twice. All evidential tests are stored in the Intoxilyzer 9000 in PDF documents. The report can be printed out at any time.

For more information take a look at http://erictorberson.com

What is Deferred Adjudication in Texas?

Deferred adjudication probation is a form of probation where the defendant pleads guilty or no contest, to a class B misdemeanor or higher, in front of a judge. The judge may accept the defendant’s plea and defer further proceedings without entering an adjudication of guilt. The judge then places the defendant on deferred adjudication community supervision.

A defendant is NOT eligible for deferred adjudication for the following:

  • Trafficking of Persons
  • Continuous Trafficking of Persons
  • Driving While Intoxicated with Child Passenger
  • Flying While Intoxicated
  • Assembling or Operating an Amusement Ride While Intoxicated
  • Intoxication Assault
  • Intoxication Manslaughter
  • Driving While Intoxicated with a Commercial Driver’s License
  • Driving While Intoxicated with .15 or higher BAC
  • Boating While Intoxicated with a Commercial Driver’s License
  • Boating While Intoxicated with .15 or higher BAC
  • Certain Drug Offenses Committed in Drug Free Zone
  • Indecency with a Child
  • Sexual Assault
  • Aggravated Sexual Assault
  • Aggravated Promotion of Prostitution
  • Compelling Prostitution
  • Aggravated Assault
  • Murder, except if the judge determines defendant did not cause death, intend to kill, and did not anticipate that a human life would be taken

For more information on DWI cases and deferred adjudication take a look at this blog post http://erictorberson.com/can-i-get-deferred-adjudication-for-a-dwi-in-texas.

How Long is Deferred Adjudication?

Deferred Adjudication for felony cases is a maximum of 10 years. For misdemeanor cases the maximum length of deferred adjudication is 2 years. A misdemeanor probation can be extended to 3 years.

The 3 year misdemeanor probation may again be extended another 2 years if the defendant has failed to pay money and the 2 year addition extension will increase the likelihood that the money will be paid.

Deferred Adjudication and Employment

A background check will allow employers to see the arrest. There is no adjudication so there will be no conviction showing on a background check.

How Do I Get Deferred Adjudication Off My Record?

Once Deferred Adjudication is completed the defendant is eligible for a Non Disclosure. For a felony there is a 5 year waiting period.

For a misdemeanor there is a 2 year waiting period after probation if the offense was under Texas Penal Code Chapter 20, 21, 22, 25, 42, 43 or 46.

Penal Code ChapterMisdemeanor Charge 2 year Waiting Period
20Operation of Stash House, Unlawful Restraint
21Public Lewdness, Indecent Exposure
22Assault
25Harboring Runaway Child, Violation of P.O.
42Disorderly Conduct, Obstruction of Highway, Harassment, Abuse of Corpse, Cruelty to Livestock Animals, Attack on Assistance Animal, Cruelty to Nonlivestock
Animals
43Prostitution
46Unlawful Carrying Weapons, Unlawful Possession of Firearm

Once the defendant is eligible he or she will file a petition with the court for an order of nondisclosure. The state is sent notice for an opportunity for a hearing. If the judge considers it in the best interest of justice, the court shall sign an order prohibiting criminal justice agencies from disclosing criminal history records relating to the offense placed on deferred adjudication.

For more information take a look at my home page http://erictorberson.com

San Antonio Traffic Lawyer

Getting traffic tickets are a part of life. Dealing with them can be frustrating and time consuming. It is best to hire a traffic ticket attorney in San Antonio to deal with it. You will have a much better chance of keeping it off of your record. Call the number below and get started-

Call (210) 816-4445

You definitely want to keep the ticket off your record. I get many dismissals. It is never a guarantee for a dismissal but that is the goal. If that is not quite possible I can almost always keep it off my client’s record with minimal requirements.

Click for more information on my San Antonio Lawyer page.

San Antonio Traffic Tickets

Most San Antonio traffic tickets will go through the San Antonio Municipal Court. If they are not in the San Antonio city limits they will be in outlying suburb courts around the city. They might also be in the county where appearances are in the JP courts.

San Antonio Muni Court is a very busy place. If you do not have to it is advised not to go yourself. Parking and security is a hassle. Hiring an traffic ticket lawyer in San Antonio to handle it is the best advice.

San Antonio Warrants

Having warrants can happen by forgetting to resolve traffic tickets. This will be a good time to hire a lawyer to step in and mitigate the damage. Many times some of the tickets can be dismissed and the high fines can be reduced to an affordable resolution.

CDL Traffic Lawyer

These are very important to keep of a driver’s record. A CDL ticket can have major consequences on a truck driver’s license and ability to earn a living. Hire a San Antonio CDL lawyer asap.

Visit my criminal defense page for more information about my practice. http://erictorberson.com/san-antonio-criminal-defense-lawyer

Personal Bond in Texas

First of all “Bail” is security given by an accused to appear in the proper court because of an allegation. Bail includes a bail bond or a personal bond. The purpose is to secure the presence of an accused in trial for an accusation against him or her.

What is a Personal Bond?

A personal bond, sometimes known as a PR Bond, is where a magistrate releases an arrested person on personal bond without a surety or other security.

A surety is a set amount of money that a person must post in order to be released from jail. The full amount can be posted or a percentage paid to a bail bondsman. The good thing about a personal bond is that the arrested person can save the money for something else. Surety money is returned after the case is concluded. But money paid to a bondsman, usually around 10 percent, is a fee that the bondsman keep for providing their services.

How Does a Personal Recognizance Bond Work?

A personal bond in Texas can be given by any magistrate. There are a few exceptions where the court before whom the case is pending may only release the defendant on a personal bond. Those exceptions are listed below:

  • Capital Murder
  • Aggravated Kidnapping
  • Aggravated Sexual Assault
  • Deadly Assault on Law Enforcement or Corrections Officer
  • Injury to a Child, Elderly, or Disabled
  • Aggravated Robbery
  • Burglary
  • Engaging in Organized Criminal Activity
  • Continuous Sexual Abuse of a Child
  • Continuous Trafficking of Persons
  • Ch 481 and 485 Health and Safety Code Drug Cases with over minimum sentences of a first degree felony (5 years).

Refusal to submit for testing ordered by the magistrate for alcohol or drug abuse can revoke a personal bond.

What is Required for a Personal Bond?

The defendants:

  • Name
  • DOB
  • Place of birth
  • Address
  • Place of employment
  • Height
  • Weight
  • Hair color
  • Eye color
  • Drivers license and state
  • Nearest relative name and address if any
  • Oath signed by defendant:

“I swear that I will appear before (the court or magistrate) at (address) Texas, on the (date), at the hour of (time) or upon notice by the court, or pay to the court the principal sum of (amount) plus all necessary and reasonable expenses incurred in any arrest for failure to appear.”

For more information look at http://erictorberson.com

Texas Castle Law

What is Castle Doctrine in Texas?

Every state makes their own laws for people present within its borders. Not all state laws allow for the Castle Doctrine. In Texas. person’s home is their castle. A person can use deadly force if they reasonably believe deadly force is immediately necessary under various criteria.

When Can Deadly Force be Used in Texas?

When a person reasonably believes deadly force is necessary it can be used in the following circumstances:

  • A person can use deadly force against the other person’s attempted use or use of deadly force
  • To prevent a person’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, aggravated robbery (bodily injury caused during theft while using a deadly weapon or serious bodily injury caused during a theft)
  • Against someone unlawfully and forcefully attempting to enter or entering another person’s home, vehicle or employment.
  • Against someone unlawfully or forcefully attempting to remove or removing a person from their home, vehicle, or employment.
  • Against someone who was unprovoked
  • Can be used if the person using it is not involved in criminal behavior higher than a Class C misdemeanor.

Is There a Duty to Retreat in Texas?

In Texas “stand your ground law” there is no duty to retreat from a location where the person has a right to be. Also the person using force to the degree he or she believes reasonably necessary cannot have provoked the the other person or be committing criminal activity above a class C misdemeanor.

Again the force may be deadly force when and to the degree the actor reasonably believes the deadly force is immediately necessary.

Can You Use Self Defense Against a Police Officer?

Generally speaking, under Texas Penal Code 9.31, it is not legal to resist an arrest or search by a police officer even if the arrest or search is unlawful. But the use of force to resist an arrest or search is justified if before resisting, the police uses or attempts to use greater force than necessary. The actor may use force to resist to the reasonable degree necessary to protect against the peace officer using greater force than necessary.

Defense of Others Law

Can you use deadly force to protect someone else?

Yes a person can use deadly force against another to protect a third person. The person using force must reasonably believe he or she would be justified in using deadly force to protect against unlawful force or unlawful deadly force. Also the person protecting the 3rd person must reasonably believe that intervention is immediately necessary to protect the person.

Put another way, so long as the person using deadly force to protect the third person reasonably believes that the third person would be justified in using deadly force to protect themselves.

Can You Use Deadly Force to Protect Property in Texas?

Yes. A property owner can protect land and tangible movable property. This is when and to the degree there is a reasonable belief deadly force is immediately necessary such as preventing imminent commission of the following:

  • Arson
  • Burglary
  • Robbery
  • Aggravated Robbery
  • Theft during the nighttime
  • Criminal Mischief during the nighttime

Or prevent someone fleeing after committing one of the above listed crimes. And the person protecting the property reasonably believes that the land or property cannot be protected or recovered by any other means. Deadly force is allowed when the actor’s use of less than lethal force would risk substantial risk of death or serious bodily injury.

Can I Use Force to Protect Another Person’s Property?

Yes protecting another person’s property is allowed as if the property was his or her own and under the circumstances above. There must be a reasonable belief that the 3rd person requested his or her protection or a legal duty to protect it.

Can I use a Device to Protect Property?

Yes a device is allowed to protect land or tangible movable property if it is not known by the installer that it is designed to cause or create a substantial risk of serious bodily injury or death. The device must be reasonable under the circumstances known to the person installing the device.

Take a look at my home page for more information http://erictorberson.com

Texas Marijuana Laws

As of 2020 possession of marijuana is still illegal in Texas. The following chart lays out the punishment range for the amount of possession of marijuana:

Class B Misdemeanor 2 oz or lessup to 6 months jail
Class A Misdemeanor2-4 ozup to 1 year jail
State Jail Felony4 oz-5 lbs6 months to 2 years prison
3rd Degree Felony5 lbs-50 lbs2-10 years prison
2nd Degree Felony50 lbs-2000lbs2-20 years prison
1st Degree Felony2000 lbs or more5-99 years prison

Leaving the Scene of an Accident

Leaving the scene of an accident is what is called a ‘hit and run’. In Texas it can range from a class C misdemeanor all the way up to a 2nd degree felony. A class C misdemeanor if punishable by a fine of up to $500 and a 2nd degree felony is punishable by up to a $10,000 fine and 20 years in prison if death resulted.

Duty on Striking an Unattended Vehicle Texas

Texas Transportation Code Section 550.024 requires a driver who strikes an unattended vehicle to stop, find, and give that owner the name and address of the operator and the owner of the vehicle that struck the unattended vehicle. If the unattended vehicle owner is not around then leave a written notice giving the name and address of the operator and the owner of the vehicle that struck the unattended vehicle and a statement of the circumstances of the collision.

Leaving the scene without leaving information is a crime. If the damage is less than $200 it is a class C misdemeanor and if more than $200 it is a class B misdemeanor.

Duty on Striking Fixture

Texas Transportation Code Section 550.025 addresses striking a structure, fixture or highway landscape. If damage is done adjacent to a highway the law requires the operator to notify the owner or person in charge of the property of the accident and of the operator’s name and address and the registration number of the vehicle the operator was driving.

If there is injury or death, or there is damage to the extent of $1,000 or more the operator must make a report to the department of public safety within 10 days if law enforcement does not investigate the accident.

If the damage is less than $200 it is a class C misdemeanor and if more than $200 it is a class B misdemeanor to leave without providing the required information.

Accident Involving Personal Injury or Death Texas

Texas Transportation Code 550.021 directs the vehicle operator who is involved in an accident that resulted or is reasonably likely to result in injury or death to immediately stop at or as close to the scene as possible.

The operator must return to the scene and immediate determine whether a person requires aid. The operator shall not unnecessarily obstruct traffic.

The operator will be required to give their name, address and registration number of their vehicle and liability insurer to any person injured, an occupant or operator of the vehicle involved in the collision.

The operator of the vehicle that involved injury or death must provide any injured person reasonable assistance including transportation or arrangements for transportation to a physician or hospital. At a minimum the operator must remain at the scene until emergency personnel or someone who the driver knows is capable of providing medical assistance arrives.

What if I Didn’t Know I Hit Someone?

In a 2018 case Curry v. State, the Texas court of criminal appeals affirmed the trial court ruling that if someone is in an accident they must stop, investigate and determine whether a person was involved and render aid. The state need not prove that the defendant knew that another person was injured in the accident.

Hit and Run Dog Law Texas

Texas Penal Code Section 42.092 Cruelty to Non-livestock Animals makes it a crime to recklessly cause serious bodily injury or kill a domesticated animal in a cruel manner. It is also against the law to recklessly kill or cause serious bodily to a domesticated animal without the owner’s consent. A crime under this section is a 3rd degree felony and up to 10 years in prison and a $10,000 fine.

A person also cannot cause a domesticated animal bodily injury without the owner’s consent. This is a class A misdemeanor and up to 1 year in jail and $4,000 fine.

What Accidents Do Police Do Reports On?

A law enforcement officer shall make a written report of the accident if the accident resulted in injury to or the death of a person or damage to the property of any one person to the apparent extent of $1,000 or more.

The report required by Subsection (a) must be filed electronically with the department of public safety not later than the 10th day after the date of the accident.

Check out my home page at https://www.erictorberson.com

Texas Vehicle Open Container Law

What is an Open Container?

An open container is a bottle, can or other receptacle that contains any amount of an alcoholic beverage and is open, has been opened, has a broken seal, or is partially empty.

The other important part of the open container law is that it takes place in the passenger area of a motor vehicle on a public highway. This is the area designed for the seating of the operator and passengers.

Where Do I keep My Open Alcohol or Liquor Bottle When Driving?

A opened bottle of alcohol is not a violation while driving if it is kept in certain places in the vehicle. The following areas are ok:

  • Glove Compartment that is locked
  • The trunk of the vehicle
  • If there is no trunk behind the last upright seat

This means that in a pickup truck the open container can be in the bed of the truck or behind the furthest back seat where there is room to store the container.

What is a Public Highway?

A Public Highway is in between or adjacent to the boundary lines of a public road, street, highway, interstate or other public maintained way for public use of motor vehicle travel.

Exceptions to the Open Container Law

There are exceptions to the open container law. The passenger area of vehicles used as transportation for compensation such as a bus, taxicab or limousine are not illegal places to possess an open container of alcohol.

Also excluded from being places of illegal possession of open containers are the living quarters of a motorized house coach, trailer, camper, motor home or a recreational vehicle.

What is the Penalty for Open Container in a Motor Vehicle?

The penalty for Open Alcoholic Beverage in a Motor Vehicle is a class C misdemeanor.

Can I be arrested for Open Container of Alcohol?

Yes a person can be arrested but only if they refuse to sign the ticket for notice to appear in court. The officer cannot arrest a person for the offense of Possession of Alcoholic Beverage in Motor Vehicle Texas Penal Code 49.031.

Check out my home page for more information here http://erictorberson.com

San Antonio Noise Ordinance

What are the City of San Antonio Noise Ordinance Times?

The San Antonio Noise Ordinance daytime/evening times are 6 a.m. to 10 p.m. Sunday through Thursday. On Friday and Saturday the time 6 a.m until 11 p.m. Conversely the “nighttime” is 10 p.m. to 6 a.m. Sunday through Thursday and 11 p.m. to 6 a.m. Friday and Saturday.

Noise OrdinanceMonday-ThursdayFriday-Saturday
Daytime6am-10pm6am-11pm
Nighttime (-7 dB)10pm-6am11pm-6am

*To learn more about our San Antonio Law office click this link http://erictorberson.com/san-antonio-defense-lawyer/.

How is Sound Measured?

Sound is measured by a weighted sound pressure level using a sound level meter and A, B, or C frequency weighting network.

For more information the American Standards Institute specifications are used.

A-weighting is used if not specified otherwise. A-weighting measures response of what the human ear hears cutting out lower and higher frequencies. It is general purpose measurements.

B-weighting is not commonly used and won’t need to be discussed.

C-weighting measures more to a humans response to a peak noise levels and some entertainment level noise measurements.

What is a Sound Level Meter?

A sound level meter is an instrument including:

  • microphone
  • amplifier
  • RMS detector
  • integrator or time averages
  • output meter
  • weighting network to measure sound pressure levels

You may want to purchase your own Decibel Meter to measure the sound. This can either prove or disprove a case. Click this Decibel Meter to look for Amazon meters.

How Loud is Too Loud in San Antonio?

The upper limit decibel level depends on how the property is zoned where the noise is coming from. The decibel measurement is taken from an adjacent property under separate ownership.

On residential zoned property the limit is 63 decibels. Subtract 7 decibels at nighttime, 10 p.m. to 6 a.m. Sun though Thursday and 11 p.m. to 6 a.m. Friday and Saturday.

For business zoned property the upper limit is 70 decibels except at nighttime subtract 7 decibels.

Industrial zoned property cannot make noise above 72 decibels unless at nighttime then subtract 7 decibels.

Entertainment zoned property is allowed 85 decibels subtracting 7 decibels at nighttime.

What is a San Antonio Noise Nuisance?

The San Antonio noise nuisance exceeds the limits stated above, or it is a loud, irritating, vexing, or disturbing sound originating from nearby property under separate ownership. The nuisance causes injury, discomfort, or distress to a person of reasonable nervous sensibilities.

What are the Riverwalk Noise Standards?

The nighttime 7 decibel subtraction does not apply to the River Walk area. Establishments cannot place speakers on or near the patio location outside the enclosed building.

The maximum decibels allowed are 72 dB A-frequency weighting and 80 dB C-frequency weighting.

What Time is Noise Curfew in Bexar County?

There is no ordinance or specifically outlined law about a noise curfew in Bexar County outside of a city limits. This does not preclude a noise violation covered under Disorderly Conduct Chapter 42 of the Texas Penal Code.

Outside the city limits in Bexar County is similar to any county where a Texas Noise Nuisance would be covered by the state disorderly conduct statute. City ordinances apply within their own particular city limits only.

The Disorderly Conduct offense of noise covers unreasonable noise, not including a sport shooting range (defined in Local Govt Code 250.001), in or near a private residence that he or she has no right to occupy.

Important Note: Noise is presumed to be unreasonable if it exceeds 85 decibels after the person making the noise receives notice from a magistrate or peace officer that the noise is public nuisance.

Noise is defined in Texas caselaw to be loud, confused, or senseless outcry, or a sound noticeably loud, harsh, or discordant. That definition can include music.

Who Gets The Ticket?

At a private residence, during a violation, any adult, adult guest or adult trespasser who could control the level of noise can be cited if a resident is not present.

At a business any owner, manager, operator, employee or person operating the noise making device may be cited for the noise violation.

For unattended noise makers the person who leaves the noise making device, child or animal unattended is responsible.

San Antonio Noise Violation Fine

A violation of the San Antonio noise ordinance results in a fine. For a person with no intent to violate the noise ordinance the penalty is a Class C misdemeanor with a fine of $100-$500.

For a person who purposefully or even recklessly violates the San Antonio noise ordinance the fine is from $100 to $2,000. For a previous conviction the minimum fine becomes $200. After 2 previous convictions the minimum fine is $300 thereafter.

Each day’s violation is a separate fine.

Conclusion

A person or establishment will want to know the particular noise ordinance that applies to them. This can be a costly ticket or series of citations if given over multiple occasions.

The best protection is to purchase a decibel meter and periodically measure the sound at the edge of a particular property that could possibly lodge a complaint. Being proactive will always look better to a compliance officer. Take note of the recordings in case they are needed in the future.

If you are looking for criminal lawyers in San Antonio take a look at http://erictorberson.com/san-antonio-defense-lawyer. Reach out for more information.

Do You Have To Sign a Traffic Ticket?

In Texas the driver is required to sign a traffic ticket. The Texas Code of Criminal Procedure states that a driver must sign a citation’s promise to appear line.

Can You be Arrested for Not Signing a Traffic Ticket?

In Texas you will be arrested if you refuse to sign a traffic citation. The Texas Transportation Code Chapter 543.005 requires a person cited to promise to appear. If they refuse to sign the citation the person will sit in jail until the court.

“To secure release, the person arrested must make a written promise to appear in court by signing the written notice prepared by the arresting officer.”

By signing the citation a person is only promising to appear. They are not admitting to an offense.

(Advice: It is best not to argue on the roadside. Save your disagreement of the ticket for the court room. It is best to let a traffic ticket attorney do it for you.)

Can You be Arrested for Speeding?

Generally speaking no you cannot be arrested for speeding unless you refuse to sign the citation.

However if a driver is speeding considerably over the speeding limit there is a possibility of being arrested for Reckless Driving, Texas Transportation Code 545.401.

Reckless Driving is defined as follows:

“if the person drives a vehicle in wilful or wanton disregard for the safety of persons or property.”

Texas also has a charge of Racing on Highway Texas Transportation Code Chapter 545.240:

(a) A person may not participate in any manner in:

(1) a race;

(2) a vehicle speed competition or contest;

(3) a drag race or acceleration contest;

(4) a test of physical endurance of the operator of a vehicle; or

(5) in connection with a drag race, an exhibition of vehicle speed or acceleration or to make a vehicle speed record.

It is relevant to note that if a person is Racing on Highway and causes death or serious bodily injury the charge is a Second Degree Felony with up to 20 years in prison.

There are 2 other traffic violations other than speeding where an officer CANNOT arrest a person unless they refuse to sign the citation-

“(B) the use of a wireless communication device under Section 545.4251;

(This makes it a crime to read, write, or send a message while driving. It is ok to do it stopped or activating a function that plays music.)

or

(C) a violation of the open container law, Section 49.031, Penal Code;”

(This means an alcoholic beverage that is open or with a broken seal that contains any amount of alcoholic beverage.)

Conclusion

A person does not technically have to sign a traffic citation. But it will mean they will sit in jail. In Texas every citation is arrestable except for Speeding, Texting While Driving, and Open Container.

The easy and advisable solution to avoid arrest is to sign the ticket and argue about it later in court. Sure this will cost money and time. But the alternative will cost money, time AND being arrested and jailed.

For more information take a look around the website. Click https://www.erictorberson.com for more blog topics.

Deferred Disposition

Deferred Disposition is a way to resolve a Class C ticket in Texas that gets the ticket dismissed within 6 months. The 6 month probation may be longer if good cause is shown by the defendant to the judge that additional time should be granted.

Deferred Disposition vs Deferred Adjudication

Deferred Disposition is a method in Texas that is only used with Class C tickets. Deferred Adjudication is used in Class B and above charges as a probation that results in a dismissal if completed properly.

Both result in dismissals of the charges if completed properly. Deferred disposition is better in its own way though. Once attained in a Class C case a defendant can have the charge expunged permanently from their record.

A Deferred Adjudication in any Class B and above case will not be allowed to be expunged. The charge can be sealed by a Non-Disclosure once successfully completed and the probation dismissed. There is no expungement allowed in Deferred Adjudication probation cases.

What is Deferred Disposition for a Traffic Ticket?

The Texas Code of Criminal Procedure Art. 45.051 defines Deferred Disposition. It can be difficult to read the statute so hopefully this blog post helps the reader. It is important to distinguish that certain parts of the statute change as of January 1, 2020 for offenses committed on or after January 1, 2020.

The most inspiring result of a Deferred Disposition is that once satisfactorily complete the court SHALL note in the docket that there is NOT a final conviction. This is wonderful especially for someone who was arrested for a higher charge and then the case is reduced to a Class C Deferred Disposition probation. The higher charge arrest can now be expunged from their record. Expungement means GONE FOREVER.

What Happens if you Break Deferred Disposition?

Breaking Deferred Disposition can result in a conviction or getting another chance. Getting a new ticket or arrested and resolving the new case before a deferral period is up will be a problem. This would violate one of the deferral requirements that most have.

If you get a ticket and it is pending during a deferral period it will most likely not cause a problem unless it is in the same city. The court will most likely spot the new citation. Also, an arrest can be detected with a criminal history check easier than a new citation.

I have had clients who did not resolve a new charge (citation and new arrest) until the deferral period was done and it worked out fine. This may not be the same for all jurisdictions so each situation varies.

Can I Get Deferred Disposition with a CDL?

This Deferred Disposition does not apply to drivers who have a Commercial Drivers License (CDL). Chapter 45 Article 45.051 (f) states that a driver with a CDL is not able to take advantage of the Deferred Disposition statute.

Does this mean if you have a CDL that you lose all hope? No I have been successful in convincing open minded prosecutors to work around this. The same with construction zone tickets.

Can I Get Deferred Disposition on a Construction Zone Ticket?

Chapter 45 excludes Texas Construction Zone tickets from qualifying for Deferred Disposition. The signage needs to say “fines double when workers present”

(2) “Construction or maintenance work zone” means a portion of a highway or street:

(A) where highway construction or maintenance is being undertaken, other than mobile operations as defined by the Texas Manual on Uniform Traffic Control Devices; and

(B) that is marked by signs:(i) indicating that it is a construction or maintenance work zone;(ii) indicating where the zone begins and ends; and(iii) stating: “Fines double when workers present.”

Does this absolutely mean no Deferred Disposition? No this is not the end of the world. The ticket must also say “workers were present”. But the prosecutor’s I have worked with have used discretion to work around this.

Can I Get a Second Chance for my Deferred Disposition?

If something goes wrong while on Deferred Disposition it is required that the judge send notice and set a show cause hearing. The defendant is required to appear and show good cause on why the deferral should NOT be revoked.

A second chance is up to the judge to allow. This means that the deferred probation is extended a certain amount of time. If the requirements are not met during the extension, and the judge assesses a fine, then the charge becomes a final conviction. It may be tough to get the judge to extend the probation more than once without extenuating circumstances.

Conclusion

Deferred Disposition is a very beneficial resolution to a person’s case. This is a safe way to resolve a case and have it dismissed. If a person is “Not Guilty” of the ticket then a trial may be the only way to go. With a deferred the defendant does have to plead ‘guilty’ or ‘no contest’. Some people do not like to do that. Also if a person thinks that they may get more tickets during a deferred period it may be tough to complete. If that is the case have a Texas Traffic Ticket Lawyer ready.

For more information take a look at blog topics here https://www.erictorberson.com.

How Much Does a DWI Lawyer Cost in Texas?

Call for more information 888-234-5550 or 512-920-0529

Make your appointment. We handle several counties in Texas.

DWI Lawyer Cost?

Each lawyer’s attorney fees will vary. For a DWI 1st they can vary from $3,000 to $5,000 to as high as $20,000 for some lawyers. (If someone is charging on the low end be cautious.) As the severity of the DWI case increases so can the attorney fees. For Misdemeanor cases the cost will generally be less than felony DWI cases. Felonies can start at a little under $10,000 and work their way depending on the level of felony and severity of the case.

Class B misdemeanor is the lowest DWI charge. Then Class A misdemeanor, State jail felony, 3rd degree felony, 2nd degree felony, 1st degree felony is (the highest.)

There is a range of several thousand dollars. The price tag for subsequent DWI charges will usually cost more. DWI cases have punishment increases and the work it takes to keep the DWI charge off the driver’s criminal record is increased.

How Much Does a DWI Cost?

The better question might be how much does a DWI cost? By cost I mean that you may hire a cheap DWI attorney to handle your case and you are convicted of DWI. In the short run the amount of money you spent was minimal. In the long run spending more money for a quality Texas DWI lawyer would have been much, much cheaper. How? Avoiding a DWI conviction can prevent several future problems. Finding the best DWI lawyer will prevent that.

A DWI conviction can prevent promotions at work. Also let’s say you apply for a new position at a different company. Another person with similar qualifications is also applying for the job. The company may run a background check on you both and see that you have a DWI on your record. The other person does not have a criminal record. The DWI conviction on your record just helped the company decide to hire the other person.

The cost of the current attorney fees, fines, and insurance rates are the short term cost. When you consider the term “cost”, the idea of “long term cost” needs to be taken into account for the full picture.

Affordable DWI Lawyer

An affordable DWI attorney does not mean “cheap” attorney. Affordable might mean that the price is similar to the lawyer’s original set flat fee but the lawyer accepts a payment plan. I accept payment plans with a down payment. The payments need to be consistent and a certain amount set forth in the contract. I will charge a percentage more than the original total fee because of the extra issue of the payment plan.

How Much Does a Good DWI Lawyer Cost?

For a DUI or DWI First charge the cost will vary. Let’s say the DWI lawyer has several years experience and is skilled at getting reductions and dismissals. The client might be looking at a range of $5,000 up to $20,000 at the top end. By hiring a good, or even the Best DWI Lawyer, you are paying for skill, experience, and years of DWI training.

Finding a “good” DWI lawyer can be tricky. WIth out a friend who refers you to a trusted lawyer, you will need to ask questions. It will not be easy. Lawyer will lie and tell you that they have experience and skill. Many will just want to take your money. I realize that I am accountable throughout the whole process and want my clients to be satisfied with my representation in the end. I want them to feel like they can refer me to a family member and know that they will be in good hands.

Best DWI Lawyer

I have studied for years to fight Texas DWI cases and have spent thousands of dollars in training to defend DWI cases properly. I have years of worthy experience, skill, success with all the effort that I have spent training, I also have a desire to win for my clients. It is not about the money. I try really hard to get the best outcome for each client and their future. I train and study DWI defense issues ahead of time in order to get the absolute best result.

Office address is located on this page https://www.erictorberson.com/williamson-county-criminal-attorney

Check out my homepage for more information.

Texas Dangerous Dog Law Book

Im happy to announce that I will be publishing and ebook very soon on defending Dangerous Dog hearings alleging Bodily Injury. This will be an informative guide for lawyers, and owners who cannot afford a lawyer, to defend a dog in court.

This specific ebook will cover only bodily injury allegations. Separate ebooks will cover fear of attack, and serious bodily injury or death. See the introduction below to learn my intention for the ebook as I write and publish this book for a dog’s benefit of a fair trial in court.

Update- I have an ebook to purchase for preparation for a dangerous dog bodily injury case. If your dog is seized for a serious bodily injury case this book is not designed for that hearing. Only bodily injury. I will have a serious bodily injury ebook out soon.

Introduction

In Texas dog, as other animals, are considered property in the law’s eyes. Although this book is intended to advise the dog owner about dangerous dog hearings alleging bodily injury, it is important to understand how courts and judges tend to characterize animals and specifically dogs. This means no matter how much you love your pet the court system will ultimately look at them as worth only fair market value. That is not much according to Strickland v. Medlen in 2013. The Texas Supreme Court basically says an animal is worth how much money you paid for them. They are not valued by taking any intrinsic monetary value amount into account. In contrast a human would be valued much differently in a court of law.

The Strickland case was not a dangerous dog hearing. It involved the negligent euthanizing of a family pet at the Fort Worth animal shelter. It does illustrate the hesitance to classify animals close to the status of humans in the eyes of the law. Beware of no matter how much you love a dog and treat him or her as a family member, the courts will not.

Fortunately dogs are somewhat protected under Texas law in the Texas Health and Safety Code Chapter 822. This statute has been added to gradually and probably could stand to be reorganized to be a lot less confusing. It is important to understand that dogs accused of biting or attacking have some legal protection. It is important for a dog owner or their lawyer to understand every single part of the statute and use the limited protections that exist in order to get a fair hearing for the dog.

This book is intended to get information out to dog owners that these dangerous dog hearings are not simple or casual situations. They have lasting and sometimes deadly consequences for the dogs. Many dog owners have contacted me after a hearing that they thought was going to be informal and unimportant. They become extremely distraught when they learn that they were completely unprepared, outnumbered, and now it is past the appeal deadline. The dog never had a chance. I hope this book helps the owner understand they need to seek experienced legal counsel to help their pet. If the owner cannot afford a lawyer, then they need to know how to at least put up a legal fight to save their dog from unnecessarily being deemed dangerous. The consequences of a dangerous dog designation can cause a court to order euthanasia if the requirements are not met.

This book focuses on Dangerous Dog Hearings alleging Bodily Injury. Subsequent books will address Dangerous Dog alleging Fear and Dangerous Dog alleging Serious Bodily Injury. My goal is to inform as many people as possible to take these hearings seriously and fight them. Too many times it is the human’s error not the dog’s fault and the dog ends up paying the ultimate price.

Attorney Eric Torberson


For more information take a look and my Texas Dangerous Dog Law page or my homepage.

Power of Attorney

What is a Power of Attorney?

It is a document that gives someone legal authority to act on your behalf. An agent (or attorney-in-fact) has authority to act on the principle’s behalf with a power of attorney.

What are the Different Kinds of Power of Attorney?

In Texas there are several different powers of attorney.

General Power of Attorney grants broad powers to the agent and is the same as the Durable Power of Attorney except that it ends upon the principle’s incapacitation.

Limited or Special Power of Attorney is usually for a specific matter for a limited amount of time.

Durable Power of Attorney is a general power of attorney and continues after the principle becomes mentally and or physically incapacitated. It ends upon principle’s death or a guardian appointment. A Durable Power of Attorney can begin immediately or when the principle becomes incapacitated, which is a Springing Power of Attorney. Proving incapacitation can delay transactions because a physicians affidavit will be required. So an immediate Durable Power of Attorney is preferred over a Springing Power of Attorney.

Springing Power of Attorney is a power of attorney that springs into action only when the principle becomes disabled or incapacitated.

Medical Power of Attorney allows the agent to make medical decisions for the principle if he or she becomes mentally or physically unable to make their own decisions.

A power of attorney must be notarized at the time of signing. The agent must be 18 years or older and the principle must be mentally capable of signing the power of attorney understanding what they are doing. The power of attorney must be filed in the clerk’s office of each county of business if real estate transactions are taking place.

How Do I Revoke a Durable Power of Attorney?

Sec. 751.134. EFFECT ON CERTAIN PERSONS OF TERMINATION OF DURABLE POWER OF ATTORNEY OR AGENT’S AUTHORITY. Termination of an agent’s authority or of a durable power of attorney is not effective as to the agent or another person who, without actual knowledge of the termination, acts in good faith under or in reliance on the power of attorney. An act performed as described by this section, unless otherwise invalid or unenforceable, binds the principal and the principal’s successors in interest.

Another power of attorney will revoke the current one. But in order to be enforceable for 3rd parties to know of the revocation, they will need actual notice of the new power of attorney or revocation.

It is best to prepare a sworn written statement of the revocation and provide it to 3rd parties.

Does a Business Have to Accept my Power of Attorney?

The following statute address acceptance of power of attorney.

Sec. 751.201. ACCEPTANCE OF DURABLE POWER OF ATTORNEY REQUIRED;

EXCEPTIONS. (a) Unless one or more grounds for refusal under Section 751.206 exist, a person who is presented with and asked to accept a durable power of attorney by an agent with authority to act under the power of attorney shall:

(1) accept the power of attorney; or

(2) before accepting the power of attorney:(A) request an agent’s certification under Section 751.203 or an opinion of counsel under Section 751.204 not later than the 10th business day after the date the power of attorney is presented, except as provided by Subsection (c); or (B) if applicable, request an English translation under Section 751.205 not later than the fifth business day after the date the power of attorney is presented, except as provided by Subsection (c).(b) Unless one or more grounds for refusal under Section 751.206 exist and except as provided by Subsection (c), a person who requests:(1) an agent’s certification must accept the durable power of attorney not later than the seventh business day after the date the person receives the requested certification; and(2) an opinion of counsel must accept the durable power of attorney not later than the seventh business day after the date the person receives the requested opinion.(c) An agent presenting a durable power of attorney for acceptance and the person to whom the power of attorney is presented may agree to extend a period prescribed by Subsection (a) or (b).(d) If an English translation of a durable power of attorney is requested as authorized by Subsection (a)(2)(B), the power of attorney is not considered presented for acceptance under Subsection (a) until the date the requestor receives the translation. On and after that date, the power of attorney shall be treated as a power of attorney originally prepared in English for all the purposes of this subchapter.(e) A person is not required to accept a durable power of attorney under this section if the agent refuses to or does not provide a requested certification, opinion of counsel, or English translation under this subchapter.

What Are The Grounds to Refuse my Power of Attorney?

Sec. 751.206. GROUNDS FOR REFUSING ACCEPTANCE.

A person is not required to accept a durable power of attorney under this subchapter if:

(1) the person would not otherwise be required to engage in a transaction with the principal under the same circumstances, including a circumstance in which the agent seeks to:(A) establish a customer relationship with the person under the power of attorney when the principal is not already a customer of the person or expand an existing customer relationship with the person under the power of attorney; or (B) acquire a product or service under the power of attorney that the person does not offer;

(2) the person’s engaging in the transaction with the agent or with the principal under the same circumstances would be inconsistent with:(A) another law of this state or a federal statute, rule, or regulation;(B) a request from a law enforcement agency; or (C) a policy adopted by the person in good faith that is necessary to comply with another law of this state or a federal statute, rule, regulation, regulatory directive, guidance, or executive order applicable to the person;

(3) the person would not engage in a similar transaction with the agent because the person or an affiliate of the person:(A) has filed a suspicious activity report as described by 31 U.S.C. Section 5318(g) with respect to the principal or agent;(B) believes in good faith that the principal or agent has a prior criminal history involving financial crimes; or(C) has had a previous, unsatisfactory business relationship with the agent due to or resulting in:(i) material loss to the person;(ii) financial mismanagement by the agent;(iii) litigation between the person and the agent alleging substantial damages; or(iv) multiple nuisance lawsuits filed by the agent;

(4) the person has actual knowledge of the termination of the agent’s authority or of the power of attorney before an agent’s exercise of authority under the power of attorney;

(5) the agent refuses to comply with a request for a certification, opinion of counsel, or translation under Section 751.201 or, if the agent complies with one or more of those requests, the requestor in good faith is unable to determine the validity of the power of attorney or the agent’s authority to act under the power of attorney because the certification, opinion, or translation is incorrect, incomplete, unclear, limited, qualified, or otherwise deficient in a manner that makes the certification, opinion, or translation ineffective for its intended purpose, as determined in good faith by the requestor;

(6) regardless of whether an agent’s certification, opinion of counsel, or translation has been requested or received by the person under this subchapter, the person believes in good faith that:(A) the power of attorney is not valid;(B) the agent does not have the authority to act as attempted; or(C) the performance of the requested act would violate the terms of:(i) a business entity’s governing documents; or(ii) an agreement affecting a business entity, including how the entity’s business is conducted;

(7) the person commenced, or has actual knowledge that another person commenced, a judicial proceeding to construe the power of attorney or review the agent’s conduct and that proceeding is pending;

(8) the person commenced, or has actual knowledge that another person commenced, a judicial proceeding for which a final determination was made that found:(A) the power of attorney invalid with respect to a purpose for which the power of attorney is being presented for acceptance; or(B) the agent lacked the authority to act in the same manner in which the agent is attempting to act under the power of attorney;

(9) the person makes, has made, or has actual knowledge that another person has made a report to a law enforcement agency or other federal or state agency, including the Department of Family and Protective Services, stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation, or abandonment by the agent or a person acting with or on behalf of the agent;

(10) the person receives conflicting instructions or communications with regard to a matter from co-agents acting under the same power of attorney or from agents acting under different powers of attorney signed by the same principal or another adult acting for the principal as authorized by Section 751.0021, provided that the person may refuse to accept the power of attorney only with respect to that matter; or

(11) the person is not required to accept the durable power of attorney by the law of the jurisdiction that applies in determining the power of attorney’s meaning and effect, or the powers conferred under the durable power of attorney that the agent is attempting to exercise are not included within the scope of activities to which the law of that jurisdiction applies.

Is My Power of Attorney Still Good if I Move to a Different State?

Yes it is still good most likely. But it is best to check with the state to confirm. It is a good idea to update a power of attorney when moving though as it will help refresh your intent of your matters at hand.

Visit our homepage for more information about http://erictorberson.com.

How Much is Bail for DWI in Texas?

Bail for DWI in Texas depends on the level of the offense just like any other charge. Typically a Class B DWI first charge is about $2,000 surety bond. This means that $2,000 case will be needed to bond out of jail. A bondsman typically charges 10% of the bond amount to sign on as the surety for the bond.

So for a defendant $200 would be paid to the bondsman to bond out. This will a non-refundable $200 fee. If a person has $2000 cash it can be paid to the jail to bond out. It will refunded once the arrestee’s case is resolved.

NCDD Badge

DWI charges in Texas can be from Class B misdemeanors all the way up to 1st degree felonies. Each level of offense will increase the bond amount. A Class A misdemeanor will be be about $4,000 depending on the county. A state jail felony such as DWI with passenger under 15 years of age might be around $6,000 or $8,000.

The magistrate will look at specific facts of the arrest but usually the bond amount is determined by the level of the offense and a standard bond amount listed on a sheet in the magistrate office.

If a person is not a local or nearby resident the bondsman will sometimes charge more than 10%. The bondsman is at risk of a person not showing up for court. They will want to be protected from being sued for the bond amount if the arrestee no-shows to court. This is called a failure to appear for court. A bond revocation will occur in court bond forfeiture issued with a warrant. A lawsuit usually follows where the county will sue to get the bond amount that the magistrate originally determined.

What is a Personal Bond?

A magistrate “may, in the magistrate’s discretion, release the defendant on personal bond without sureties or other security.” This is nice for the accused and will save the person money if otherwise a surety was needed. An out of county magistrate may allow a personal bond except for certain violent offenses listed in the Texas Code of Criminal Procedure Chapter 17.

(A) Section 19.03 (Capital Murder);

(B) Section 20.04 (Aggravated Kidnapping);

(C) Section 22.021 (Aggravated Sexual Assault);

(D) Section 22.03 (Deadly Assault on Law Enforcement or Corrections Officer, Member or Employee of Board of Pardons and Paroles, or Court Participant);

(E) Section 22.04 (Injury to a Child, Elderly Individual, or Disabled Individual);

(F) Section 29.03 (Aggravated Robbery);

(G) Section 30.02 (Burglary);

(H) Section 71.02 (Engaging in Organized Criminal Activity);

(I) Section 21.02 (Continuous Sexual Abuse of Young Child or Children); or

(J) Section 20A.03 (Continuous Trafficking of Persons);

Those particular offenses would require the court where the case is pending to allow a Personal Bond.

For more information visit our homepage at http://erictorberson.com.

What is the Police Pull Over Procedure?

If police decide to pull you over it should be done in the safest and soonest possible way. In Texas if an emergency vehicle drives behind you with audible sounds or visual lights you must immediately attempt to move to the right of the roadway.

Sec. 545.156. VEHICLE APPROACHED BY AUTHORIZED EMERGENCY VEHICLE.

(a) On the immediate approach of an authorized emergency vehicle using audible and visual signals that meet the requirements of Sections 547.305 and 547.702, or of a police vehicle lawfully using only an audible or visual signal, an operator, unless otherwise directed by a police officer, shall: (1) yield the right-of-way; (2) immediately drive to a position parallel to and as close as possible to the right-hand edge or curb of the roadway clear of any intersection; and(3) stop and remain standing until the authorized emergency vehicle has passed.

(b) This section does not exempt the operator of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.Amended by: Acts 2019, 86th Leg., R.S., Ch. 860 (H.B. 2837), Sec. 3, eff. September 1, 2019.

What Do I Do After I’m Pulled Over?

After being pulled over by the police they will want to see identification. Whether you think they had a right to pull you over or not the you should be ready to provide identification to the requesting officer when asked. For a driver issued a ticket for an alleged violation, the time to argue the case is in court-Not on the roadside.

You will want to keep your hands near the top of the steering wheel so there is no appearance of reaching for a weapon. Cops are shot during encounters. They know this happens and will presume every encounter with a stranger has that potential outcome.

Where to Pullover for Police on Highway

The usual place to pull over for the police is out of the flow of traffic and safely off the roadway. The officer will usually have a loud speaker and direct the driver to continue to further to another location if the current one will not do.

Usually pulling over to the right side of the road is the preferable location. Generally slower traffic is supposed to drive further to the right. (But we all see slow drivers in the passing lane so not everyone practices that.) There may be occasions where a driver is being pulled over and the only option is to pull over on the left. There may be a large space on the left or while driving on a one way street or highway.

The most important factor is getting out of traffic and giving the officer the appearance that the driver is attempting with effort to find a safe place to stop. Allowing the officer to safely park out of traffic would be a kind gesture to start off the conversation as well.

For more information on our firm look at http://erictorberson.com

Not Drinking Alcohol After Arrest

This will be an ongoing post as I build on what I want to get across. There are no doubt benefits to abstaining from a number of food and drinks. My initial purpose for this post was to limit the subject matter to abstaining from alcohol while a pending DWI or DUI court case was looming. After further thought, the topic can actually be helpful to more than just my court clients.

I usually mention to new clients that although I am not trying to get too personal it might be helpful to abstain from alcohol and/or drugs during the pending court case. Sometimes it is useful in bargaining the case when the prosecutor knows that my client learned a lesson that impacted them to make a change.

If I feel that the client may be on a downward spiral I am concerned about their general health and situation. As a lawyer counseling our clients in their best interest is important. To me, it is a moral obligation to a client to help them have a better life. It can be frustrating if a person refuses to listen to sound advice. I do not take it personally if they don’t.

Should I Stop Drinking After a DUI

Yes. Even if a person does not drink much or very often it is a good idea to stop temporarily at least. On the off chance that the offense occurs again the situation just got exponentially more difficult to resolve for the lawyer.

A client who stops drinking during a pending case also gives me confidence that my client is willing to improve. I can feel confident speaking to the prosecutor. The court system can rest easy knowing that this will probably not occur again. This will also make it easier to get an acceptable resolution to the case.

Alcohol effects can be depressing for a person to recover from. With the stress of a pending alcohol-related crime a person can make the situation just that much harder on a day to day basis. It is a good time for a person to work on self-improvement during a pending court case.

Can You be Court-Ordered Not to Drink?

Absolutely yes you can. While a case is pending a person is either in jail or bonded out. The bond can have special restrictions such as a curfew, places not to go and whether or not alcohol may be consumed. A drinking and driving charge, at least in Texas, many times requires abstinence from alcohol consumption.

This can especially be a problem if there is an ignition interlock device in the accused’s car or an alcohol scram device on their ankle. The testing devices will catch alcohol consumption. This will then notify the supervising authority of alcohol consumption. The next step is a bond revocation motion filed in court that will need to be explained to the judge. There are occasionally false positive tests for different reasons. But the proof of this usually falls on the defense attorney to convince the court of this.

When I talk to new clients I throw out the idea to make the whole process the time for self-improvement. Although it is not my business to rearrange a person’s private lives, I do make suggestions. I throw it out there that getting ahead of the situation can be the best route.

Why not set your own abstinence standard instead of rebelling against a court order? It becomes much more difficult to complete a task while rebelling and complaining about the rules of a particular situation. If it’s cold outside wear a coat. Would complaining about the weather and not dressing warm make the situation any easier. No, so we adjust.

Having a positive attitude rather than complaining really does help in the end. So many of my clients who refused to complain about the situation they found themselves in had their case resolve well. My experience with cases where the client complained instead of adjusting and staying positive seemed to always turn out worse.

It can be a lot easier psychologically for a person to make their own standard rather than doing so because of being ordered to by someone else. This advice may be more so for the rebellious spirited people who do not favor authority. Accomplishing personal goals can be very satisfying as well.

AA Attendance Sheet

Sometimes a person wishes to attend AA meetings for personal reasons or by a suggestion of an attorney. Sometimes it can help the outcome of the case. But regardless it cannot hurt to go to one. At least a person can explore whether they may have an alcohol abuse issue.

Below is a link to a printable PDF AA attendance sheet. It has blanks to fill in general information to provide proof of attendance. There may be more specific information required but this is sufficient in most cases.

http://erictorberson.com/wp-content/uploads/2019/12/AA-Meeting-Sign-In-Sheet.pdf

Look at my home page for more information. http://erictorberson.com

Texas Failure To Appear

How Can I Find Out if I Have a Failure to Appear for a Traffic Ticket?

In most cases you can enter your information on this DPS website and it will inform you of your violation and where the appearance should have been. Then it is advisable to call the court or contact an attorney to do so for you.

This site applies only to jurisdictions with a contract with the DPS. If the jurisdiction does not have a contract, then mostly likely the violation will not show up in the site search.

What Make a Ticket Enforceable Against Me in Court?

Art. 45.019. REQUISITES OF COMPLAINT. (a) A complaint is sufficient, without regard to its form, if it substantially satisfies the following requisites:

(1) it must be in writing;

(2) it must commence “In the name and by the authority of the State of Texas”;

(3) it must state the name of the accused, if known, or if unknown, must include a reasonably definite description of the accused;

(4) it must show that the accused has committed an offense against the law of this state, or state that the affiant has good reason to believe and does believe that the accused has committed an offense against the law of this state;

(5) it must state the date the offense was committed as definitely as the affiant is able to provide;

(6) it must bear the signature or mark of the affiant; and

(7) it must conclude with the words “Against the peace and dignity of the State” and, if the offense charged is an offense only under a municipal ordinance, it may also conclude with the words “Contrary to the said ordinance”.

(b) A complaint filed in justice court must allege that the offense was committed in the county in which the complaint is made.

(c) A complaint filed in municipal court must allege that the offense was committed in the territorial limits of the municipality in which the complaint is made.

(d) A complaint may be sworn to before any officer authorized to administer oaths.

(e) A complaint in municipal court may be sworn to before:

(1) the municipal judge;

(2) the clerk of the court or a deputy clerk;

(3) the city secretary; or

(4) the city attorney or a deputy city attorney.

(f) If the defendant does not object to a defect, error, or irregularity of form or substance in a charging instrument before the date on which the trial on the merits commences, the defendant waives and forfeits the right to object to the defect, error, or irregularity. Nothing in this article prohibits a trial court from requiring that an objection to a charging instrument be made at an earlier time.

(g) In a county with a population of more than two million that does not have a county attorney, a complaint for an offense under Section 32.41, Penal Code, must be approved by the district attorney, regardless of whether a collection proceeding is initiated by the district attorney under Section 32.41(e), Penal Code.

When Am I Entitled to Notice of The Charge Against Me?

Art. 45.018. COMPLAINT. (a) For purposes of this chapter, a complaint is a sworn allegation charging the accused with the commission of an offense.(b) A defendant is entitled to notice of a complaint against the defendant not later than the day before the date of any proceeding in the prosecution of the defendant under the complaint. The defendant may waive the right to notice granted by this subsection.

What if My Ticket Was Dismissed or I Already Paid it?

If your ticket is resolved you will need to contact the court where the ticket was filed. They are the only place with the authority to clear the citation.

I have represented people who did not realize that they had more than one ticket or forgot to take care of all the tickets they received after being stopped.

Can I Find Out if I Have a Warrant?

The DPS Failure to Appear program does not have information about warrants. They do sometimes go hand in hand though. I have more information on finding out if you have a warrant here http://erictorberson.com/texas-warrant-search. It is easier to find out about warrants in some counties more so than others unfortunately.

Who Do I Pay For My Violation?

Any payments need to go through the JP or municipal court regarding violations filed. They will know if any fees need to be paid to anyone else. Some courts accept online payments. There used to be links to city and county sites but as of right now the domains are showing error. You will need to do a search for the jurisdiction of your ticket and contact the court.

In many cases the court accepts payment by credit card by phone or online.

Can My Drivers License Renewal Be Denied For Non Traffic Violations?

Yes the Texas Traffic Code 706 authorizes the Texas DPS to deny renewal for a Texas drivers licenses for any violation of Texas courts.

Where Do I Call for Help From the DPS?

For online help click https://www.dps.texas.gov/ for help over the phone call (512)424-2600.

What Do I Do if I Have a Drivers License Renewal Hold?

Two things need to happen. The warrant needs to be lifted and the omni fee needs to be paid. This will remove the drivers license renewal hold. An attorney can do this for you.

The removal of the warrant is done by an appearance bond by the attorney. This allows the case to be put back on the docket to allow an attorney to begin negotiating with a prosecutor to resolve the ticket or tickets.

The $30 omni fee is paid to the court. The court then send a release to the DPS to release any holds on the drivers license renewal.

Can I Just Pay My Ticket and Be Done With It?

Paying your ticket will create convictions on your record. This could affect your insurance and any consequences from further tickets down the road, so to speak.

Luckily surcharges went away September 1, 2019. The Drivers Responsibility Program was repealed.

Contact Eric Torberson for advice or assistance for you legal needs.

My Dog Bit Someone

My dog bit someone now what happens? Just because a dog bites someone does not automatically mean the dog is to blame. Dogs have a right to live in peace. Dogs have a right to protect themselves and their property.

If a Dog Bites Someone Will It Be Put Down?

In Texas the Health and Safety Code 822 covers Texas state wide law on dog bites. It is a confusing statute that probably could stand to be restructured. Chapter D of 822 speaks of a bodily injury dog bite. Chapter A covers Serious Bodily Injury (SBI) or Death to a person. An incident covered by Chapter D or A could result in the dog being euthanized.

Lets start with 822 Chapter D. It defines a dangerous dog as:


“Dangerous dog” means a dog that: (A) makes an unprovoked attack on a person that causes bodily injury and occurs in a place other than an enclosure in which the dog was being kept and that was reasonably certain to prevent the dog from leaving the enclosure on its own; or (B) commits unprovoked acts in a place other than an enclosure in which the dog was being kept and that was reasonably certain to prevent the dog from leaving the enclosure on its own and those acts cause a person to reasonably believe that the dog will attack and cause bodily injury to that person.

Notice that this part of the 822 statute speaks of an attack. It does not necessarily mean just a bite. It could be a scratch. (Though my only scratches are from a dog being too friendly.)

One of the first issues that I look at is was the dog provoked? Provocation is a defense for a dog attack. It allows the dog a fair shot at a just outcome. If you think about it if provocation was not included in the law then anyone could abuse or torment a dog. The dog would never be able to defend itself regardless of the how unfair the situation was. Kids could throw rocks at dogs. People could kick or hit dogs with objects for amusement. Unfortunately there are ill willed people on the planet who find it ok to abuse animals.

If the dog is in its enclosure then it is allowed some respect and space under the statute. Dogs are territorial not unlike people. If a stranger were to walk through your living room or bed room it would be to say the least startling.

Part B of the definition of dangerous dog is a troubling part of the statute. If a dog is out of his or her enclosure it has lost that protection under the statute. But the real grey area is that a person’s subjective idea or assertion about a dog’s mere intention puts the dog at risk. A dog does not even have to bite or attack and technically can be deemed dangerous. A person just has to say they “reasonably believed the dog would attack and cause bodily injury.”

Fo an accusation under part B it would be especially important to seek legal counsel of a dangerous dog attorney. This is a ‘subjective’ accusation and in many cases it is an angry neighbor or someone who may simply fear dogs from a previous traumatic experience.

A dog’s enclosure is not defined other than it is a place that the dog was being kept and that place was reasonably certain to prevent the dog from leaving on its own.

Texas Dangerous Dog Requirements

If a dog is declared dangerous from a bodily injury attack, the dog’s life is not out of danger. There are requirements that have to be met if the case is not appealed. If these requirements are not met then the state can legally seize and euthanize your dog. The Texas state requirements are as follows:


Sec. 822.042. REQUIREMENTS FOR OWNER OF DANGEROUS DOG. (a) Not later than the 30th day after a person learns that the person is the owner of a dangerous dog, the person shall:

(1) register the dangerous dog with the animal control authority for the area in which the dog is kept;

(2) restrain the dangerous dog at all times on a leash in the immediate control of a person or in a secure enclosure;

(3) obtain liability insurance coverage or show financial responsibility in an amount of at least $100,000 to cover damages resulting from an attack by the dangerous dog causing bodily injury to a person and provide proof of the required liability insurance coverage or financial responsibility to the animal control authority for the area in which the dog is kept; and

(4) comply with an applicable municipal or county regulation, requirement, or restriction on dangerous dogs.

(b) The owner of a dangerous dog who does not comply with Subsection (a) shall deliver the dog to the animal control authority not later than the 30th day after the owner learns that the dog is a dangerous dog.

(c) If, on application of any person, a justice court, county court, or municipal court finds, after notice and hearing as provided by Section 822.0423, that the owner of a dangerous dog has failed to comply with Subsection (a) or (b), the court shall order the animal control authority to seize the dog and shall issue a warrant authorizing the seizure. The authority shall seize the dog or order its seizure and shall provide for the impoundment of the dog in secure and humane conditions.

(d) The owner shall pay any cost or fee assessed by the municipality or county related to the seizure, acceptance, impoundment, or destruction of the dog. The governing body of the municipality or county may prescribe the amount of the fees.

(e) The court shall order the animal control authority to humanely destroy the dog if the owner has not complied with Subsection (a) before the 11th day after the date on which the dog is seized or delivered to the authority, except that, notwithstanding any other law or local regulation, the court may not order the destruction of a dog during the pendency of an appeal under Section 822.0424. The court shall order the authority to return the dog to the owner if the owner complies with Subsection (a) before the 11th day after the date on which the dog is seized or delivered to the authority.(f) The court may order the humane destruction of a dog if the owner of the dog has not been located before the 15th day after the seizure and impoundment of the dog.

Notice in the paragraph above that-“The court shall order the animal control authority to humanely destroy the dog if the owner has not complied.” This is extremely critical to know about before agreeing to let a dog be deemed a dangerous dog on the Texas Health and Safety Code statute!!

Serious Bodily Injury

Now 822 Chapter A puts the dog in more immediate risk of the court ordering euthanasia. For an attack, biting or mauling serious bodily injury case the statute states as follows:

(e) The court may order the dog destroyed if the court finds that the dog caused serious bodily injury to a person by attacking, biting, or mauling the person. If that finding is not made, the court shall order the dog released to:(1) its owner; (2) the person from whom the dog was seized; or (3) any other person authorized to take possession of the dog.

Defenses for the dog accused of causing serious bodily injury:

(f) The court may not order the dog destroyed if the court finds that the dog caused the serious bodily injury to a person by attacking, biting, or mauling the person and:

(1) the dog was being used for the protection of a person or person’s property, the attack, bite, or mauling occurred in an enclosure in which the dog was being kept, and: (A) the enclosure was reasonably certain to prevent the dog from leaving the enclosure on its own and provided notice of the presence of a dog; and (B) the injured person was at least eight years of age, and was trespassing in the enclosure when the attack, bite, or mauling occurred;

(2) the dog was not being used for the protection of a person or person’s property, the attack, bite, or mauling occurred in an enclosure in which the dog was being kept, and the injured person was at least eight years of age and was trespassing in the enclosure when the attack, bite, or mauling occurred;

(3) the attack, bite, or mauling occurred during an arrest or other action of a peace officer while the peace officer was using the dog for law enforcement purposes;

(4) the dog was defending a person from an assault or person’s property from damage or theft by the injured person; or

(5) the injured person was younger than eight years of age, the attack, bite, or mauling occurred in an enclosure in which the dog was being kept, and the enclosure was reasonably certain to keep a person younger than eight years of age from entering.

Unfortunately the law is not clear about whether the dog who is out of his or her enclosure is protected from a provoked act by someone. The chapter D bodily injury portion of the statute requires the attack causing bodily injury to be unprovoked. Here it seems that if an attack caused SBI then in all fairness the court would also look at whether provocation was present.

What is Serious Bodily Injury?

Serious Bodily Injury is defined as follows in the Health and Safety Code”

(2) “Serious bodily injury” means an injury characterized by severe bite wounds or severe ripping and tearing of muscle that would cause a reasonably prudent person to seek treatment from a medical professional and would require hospitalization without regard to whether the person actually sought medical treatment.

The next question, which is important, is what is hospitalization? It typically is overnight stay at the hospital according to healthcare.gov.

Serious Bodily Injury accusations put a dog’s life at risk of the judge ordering euthanasia in Texas. It is highly important to determine whether the bite really is serious bodily injury.

For comparative information Serious Bodily Injury (SBI) defined in the penal code and used for statutes with humans aggressors is as follows:

“Serious bodily injury” 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.

What Happens If My Dog Kills Someone?

In Texas there is no protection for a dog who has killed someone. Your friendly dog could be saving you and your family from a raving mass murderer burning down your house. If your dog kills the psychopath, the Texas law requires your dog to euthanized. The Health and Safety Code is as follows:

(d) The court shall order the dog destroyed if the court finds that the dog caused the death of a person by attacking, biting, or mauling the person.

This unsympathetic law is surprising. Texas values private property rights. It seems that even a dog that kills a cattle rustler would be protected from state ordered euthanasia. It is not so though.

For more information contact dangerous dog lawyer Eric Torberson.

How To Get Out of Jury Duty

How do I get out of jury duty? The best answer to this is to show up and participate. There are only a limited amount of people who end up on a jury. Six people or twelve people make up juries. There might be an alternate juror or two but that should be it.

What if I Accidentally Miss Jury Duty?

If enough jurors show up to jury duty make a panel, the judge may simply ignore any missing jurors. In Texas jurors not present “may be fined not less than $100 nor more than $500.” Either party may request the missing juror to be attached and brought before the court. If the missing juror is brought before the court prior to a jury being impaneled, the juror may be empaneled on the jury. This is after being tried to his or her qualifications.

In a criminal case the attachment of a juror is not mandatory. The defendant must exhaust all preemptory challenges for cause, ask for more, be refused, and point out an objectionable juror who was seated. The judge’s failure to grant an attachment for a missing juror is not reversible error unless the defendant can show injury.

How to Postpone Jury Duty

Jurors who have excuses to not be on jury duty will be heard by the judge usually one by one in front of the bench. At this time exemptions and lack of qualifications are heard. If the jurors excuse is sufficient the judge will discharge or postpone the juror’s service to future date set by the court.

The court may discharge a juror or postpone the juror’s service for a juror’s religious beliefs or the juror’s religious holiday. The juror must provide an affidavit the complies with Article 29.012(c). This article requires an affidavit to state (1) the grounds for the recess or exclusion from jury duty. And (2) that the juror holds religious beliefs that prohibit him from taking part in court proceedings on the day for which the recess or exclusion is sought. This affidavit is proof of the facts stated and need not be corroborated.

Jury Service Exemption

A juror with an exemption will not need to show up if they sign a statement of ground of exemption. This must be done with the court clerk at any time before the date he or she is summoned to appear.

Juror Excused by Consent

If both parties of the trial consent, the summoned juror may be excused by the court at anytime prior to the juror being impaneled.

Jury

If a juror makes it past the excuses, exemptions, and strikes the juror may end up on the jury. The panel gets selected as jurors in numerical order from each person who is still eligible to serve on the jury. Once all of the six or twelve seats have been filled the rest of the panel gets sent home.

For more information visit https://www.erictorberson.com.

Is CBD Oil Legal?

Is CBD oil Legal? Yes if it has not more than .3 THC, Tetrahydrocannabinol.

Tetrahydrocannabinol

What is Tetrahydrocannabinol?

It is THC. It is primary psychoactive chemical in Cannabis Sativa. Hemp is a strain of cannabis with a lower THC level and also containing Cannabidiol.

Cannabidiol. What is it?

Cannabidiol is CBD. This is a non psychoactive element in hemp that provides relief to conditions such as pain, insomnia and anxiety.

Is CBD Oil Legal in Texas?

Yes. It must contain materials extracted from hemp and not derived from the plant Cannabis Sativa L. The CBD oil must be sampled by an accredited laboratory. The lab must be accredited in accordance with International Organization for Standardized ISO/IEC 17025 or a comparable or successor standard. The testing must show a Delta-9 THC concentration of not more than .3 percent.

Federal Hemp Laws

Texas CBD oil must be produced in compliance with the federal definition of hemp in the Agricultural Code.

(1) Hemp

The term “hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.

How To Sell CBD Oil?

Retailers are required to register the Department of State Health Services to sell CBD oil. The owner, operator or person in control of sales must register each location owned, operated, or controlled unless that person is an employee of the registrant or independent contractor a registrant.

Registration is valid for one year and may be renewed yearly.

Under Sec. 443.203 of the Texas Agriculture Code, CBD oil sold must be manufactured in compliance with the Texas Hemp law or the retailer can be held accountable under the Business and Commerce Code Subchapter E Chapter 17 of the Deceptive Trade Practices.

A person violates the Texas Business and Commerce Code if he or she sells CBD oil that:

  • Contains harmful ingredients
  • Is not produced in compliance with 7 U.S.C. Chater 38, Subchapter VII or
  • Has delta-9 tetrahydrocannabinol concentration of more than .3 percent

What States is CBD Oil Legal 2019

State CBD Legal Status
Alabama Written Certification
Alaska Legal
Arizona Legal
Arkansas Legal
California Legal
Colorado Legal
Connecticut Legal
Delaware Legal
Florida Legal
Georgia Possibly Legal. Law Appears Not Enforced.
Hawaii Legal
Idaho Legal With 0.0 THC
Illinois Legal
Indiana Legal
Iowa Written Certification
Kansas Illegal
Kentucky Legal
Louisiana Legal
Maine Legal
Maryland Legal
Massachusetts Legal
Michigan Legal
Minnesota Legal
Mississippi Written Certification
Missouri Written Certification
Montana Legal
Nebraska Written Certification
Nevada Legal
New Hampshire Written Certification
New Jersey Legal
New Mexico Legal
New York Legal
North Carolina Legal
North Dakota Legal
Ohio Legal
Oklahoma Legal
Oregon Legal
Pennsylvania Legal
Rhode Island Legal
South Carolina Legal
South Dakota Illegal
Tennessee Legal
Texas Legal
Utah Legal
Vermont Written Certification
Virginia Written Certification
Washington Legal
West Virginia Legal
Wisconsin Legal
Wyoming Legal

Can I manufacture consumable hemp products?

“The manufacturing license for consumable hemp will not be available until the USDA approves Texas’ hemp plan. That plan is under development by TDA. State licensing rules and requirements relating to the manufacture of consumable hemp products may only be proposed after the approval of the plan by the USDA.

Until the plan is approved and rules are in place, current law applies. Only ingredients on the FDA’s Generally Regarded As Safe (GRAS) list or otherwise federally approved may be used in foods, drugs, cosmetics and dietary supplements. There are currently three hemp-derived products on the GRAS list; hulled hemp seeds, hemp seed protein and hemp seed oil. Manufacturers of these products are governed by Health and Safety Code Chapter 431. Manufacturers interested in producing consumable hemp products not containing CBD may currently apply for a DSHS food manufacturer license.”

Contact us at https://www.erictorberson.com/williamson-county-criminal-attorney for more information.

Legal Property Deed

What us a Deed?

A deed is a written document that conveys legal and equitable title to real property from a grantor to a grantee. A deed is not effective unless the parties can be identified. The deed is required to show intent to convey real property and signed by the grantor. The deed then must be delivered to the grantee.

What are the different Deeds?

In Texas there are 3 main deeds.

  1. General Warranty Deed
  2. Special Warranty Deed
  3. Deed Without Warranty

General Warranty Deed

In a express warranty deed of this type the seller is guaranteeing to compensate the buyer for any failure of title, all the way back to the time of the land patent from the sovereign. In Texas, that means the original grant from Spain, Mexico, the Republic of Texas, or the State of Texas. 

this warranty runs with the land. The sellers guarentee is a promise to the buyer and all subseqyent buyers(grantees) that the title is free of defects. The grantor promises that the grantor will defend the grantee against the rightful claims of third parties to the property and the property is free of encumbrances that may interfere with the grantors ownership such and liens, leases, or easements.

The express warranty extends to all subsequent grantees and covers every potential defect in the title.

Special Warranty Deed

This deed does not allow anyone other than the grantor to be liable to the grantee for recourse regarding encumbrances. Only the immediate buyer may sue the grantor if the warranties are breached in an implied warranty deed or special warranty deed. Title defects are limited to the grantors ownership period of time.

Deed Without Warranty

A deed that conveys real property without any warranty. This is used when the parties are unsure of the grantors true interest in the property. The grantor may use this to limit his or her liability. The parties assume the risk of any interest in the property.

What is a Quitclaim Deed?

This semi-deed conveys an interest a grantor may have in property. This is not necessarily conveyance of title. A quitclaims quits any interest a grantor may have. A quitclaim in the chain of title might be a problem. Most title companies will not work with a property with a quitclaim in the chain of title.

Texas Lady Bird Deed

A Texas Lady Bird Deed (or Texas Enhanced Life Estate Deed) creates a life estate for the owner and a remainder interest. The remainder interest does not take possession of the property until the death of the current owner/possessor. The signing of a Lady Bird Deed transfers the property from a fee simple into a life estate. This then transfers title to the remainder beneficiary(s) at death without the need for probate.

The best part of the Lady Bird Deed is that the owner can change their mind about the beneficiaries at anytime before death. The owner can change the transfer at anytime without interacting or consent of the beneficiary. The owner can also lease, mortgage, gift or sell the property. This differentiates the Lady Bird Deed from the Life Estate Deed.

Texas Life Estate Deed

The Life Estate Deed allows a property owner to possess land and have it transfer at death to a beneficiary without probate. The grantor transfers title to the property to grantee(remainder-man) but retains the right to live on the property. Once the agreement is signed the beneficiary immediately has rights to the property. The owner cannot convey or mortgage the property without the consent of the beneficiary.

The current owner must keep the property as their primary residence or the property transfers as it would at death. The grantor cannot revoke the deed or change the beneficiary without consent. It is final.

For more information about our firm take a look at https://www.erictorberson.com.

Preemption Over Lower Law

What is Preemption?

Preemption occurs either when the federal government forestalls a state law or alternatively a state law overrules a local ordinance. When a law is already covered at a higher level the lower governmental entity cannot enact inconsistent law.

What is Federal Preemption?

The Supremacy Clause, Article VI, Clause 2, of the United States Constitution conclusively determines that the Federal Laws are the supreme law of the land. Any conflicting state laws will be “without affect”.

Supremacy Clause Definition

Section 2 of Article VI authorizes the federal government to win over state power as long as it is constitutional. This clause puts everyone on notice that the supreme law of the land is the United States Constitution.

But the federal law is also limited to the constitution and statutes. The 10th Amendment to the Constitution reserves the powers not covered in the constitution to the states. The states originally were skeptical of the federal government’s powers and they wanted the framers to recognize that a distant centralized all powerful central government was unacceptable.

McCulloch v. Maryland

Why is McCulloch v. Maryland important?

This case is extremely important because the lawsuit was about Maryland attempting to tax the Federal Bank for $15,000. This would give a state a power over a part of the Federal Government and possibly allow a state to tax the bank out of existence.

In 1819 the McCulloch case took place. Maryland was represented by Maryland Attorney General Luther Martin. The Federal Bank was represented by famous orator Daniel Webster. Presiding over the supreme court was Chief Justice John Marshall who also wrote Marbury v. Madison.

Daniel Webster argued that Federal Law is supreme. This is also consistent with Alexander Hamilton’s prior assertions in 1791 while defending the Federal Bank. And if an entity can tax something, they can destroy it. Not to mention the Supremacy Clause says that national government must do what is necessary to continue executing policies and enforce the constitution.

Maryland argued unsuccessfully that nothing justified creating a national bank. Attorney General Luther Martin was a harsh critic of the existence a Federal Bank.

The Court in a unanimous decision agreed with Daniel Webster. The states cannot tax the Federal Government or a part of the U.S. Government. The important issue to take away from this is not whether a national bank was allowed to exist. But it was really about the assignment of power between the Federal Government and the States.

Chief Justice John Marshall

“The power to tax is the power to destroy.”

John Marshall

The 10th Amendment

All powers not reserved by the federal government are left to the states. These are reserved powers. This amendment is about Federalism. States have the powers not granted to the federal government as well as the states having power granted by the state constitutions. The supreme court has used the 10th amendment to empower states and to enforce the spirit of the constitution over the last several decades.

There will be a federal government and there will be states. The 10th Amendment does not specify what particular powers will be left to the states.

Home Rule

What is Home Rule?

In Texas, Home Rule cities must have a population of 5,000 or more and adopt a city charter. A Home Rule city may adopt or pass ordinances that it wants unless they conflict or are inconsistent with the state law.

The City Charter must be approved by the city council and then ratified by a city population vote. The charter is limited to the wording in the Texas Constitution that “The adoption or amendment of charters is subject to such limitations as may be prescribed by the Legislature, and no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State.”

A municipality is a corporation with specific powers, such as city utilities and services, paid for by property taxes. The problem that arises are when ordinances get passed that are inconsistent with state law. This usually happens when council members vote on ordinances that are not well thought out.

Dillon’s Rule

Dillon’s Rule means that the local government may only pass laws defined and granted by the state government. 39 states in the United States. follow Dillons’s Rule.

State Home Rule State? Dillon’s Rule State?
Alabama No Yes
Alaska Yes No
Arizona Yes Yes
Arkansas Limited Yes
California Yes Yes
Colorado Yes Yes
Connecticut Yes Yes
Delaware No Yes
Florida Yes Unclear
Georgia Yes Yes
Hawaii Yes Yes
Idaho Yes Yes
Illinois Yes Yes
Indiana Limited Yes
Iowa Yes No
Kansas Limited Yes
Kentucky Limited Yes
Louisiana Yes Yes
Maine Yes Yes
Maryland Yes Yes
Massachusetts Yes No
Michigan Yes Yes
Minnesota Yes Yes
Mississippi No Yes
Missouri Yes Yes
Montana Yes No
Nebraska No Yes
Nevada Yes No
New Hampshire No Yes
New Jersey Yes No
New Mexico No No
New York Yes Yes
North Carolina Limited Yes
North Dakota Yes Yes
Ohio Yes No
Oklahoma No Yes
Oregon Yes No
Pennsylvania Yes Yes
Rhode Island Yes Yes
South Carolina Limited No
South Dakota Yes Yes
Tennessee Yes Yes
Texas Limited Yes
Utah Limited No
Vermont No Yes
Virginia No Yes 
Washington Yes Yes
West Virginia No* No
Wisconsin Limited Yes
Wyoming No Yes

Home Rule in Texas

Again, Texas allows Home Rule Status to municipalities of 5000 or more. Otherwise a town is ruled by the general laws of the state. Texas has around 350 incorporated municipalities as of 2019.

There are about 862 cities in Texas that are general law cities, non incorporated municipalities.

City Ordinance vs State Law in Texas

In January 2018 the Texas Supreme Court decided the case involving a plastic bag ban by the City of Laredo. The case was City of Laredo v Laredo Merchants Association.

The Laredo ordinance declared that the purpose of the ordinance was to reduce litter from discarded plastic bags. Prior to the ordinance taking effect the Laredo Merchants Association forestalled enforcement by suing for declaratory and injunctive relief claiming that the ordinance was preempted by The Texas Solid Waste Disposal Act.

The trial court granted the City’s motion for summary judgment and denied the Merchant’s motion. The Merchant’s appealed motion then prevailed in the court of appeals because the Act preempted the city ordinance against single use plastic bags due to plastic bags falling under the definition of container or package within the Act’s meaning.

The City filed a petition for review to the Texas Supreme Court. The court first analyzed the Texas Constitution Article XI Section 5(a) where home rule cities must not pass a provision inconsistent with the Constitution of the State.

“A statutory limitation of local laws may be express or implied, but the Legislature’s intent to impose the limitation “must appear with unmistakeable clarity.” The mere “entry of the state into a field of legislation….does not automatically preempt that field from city regulation.” Rather, “local regulation, ancillary to and in harmony with the general scope and purpose of the state enactment, is acceptable.” Absent an express limitation, it the general law and local regulation can coexist peacefully without stepping on each other’s toes, both will be given effect or the latter will be invalid only to the extent of any in consistency.”

The City argued that the Ordinance had other, distinct purposes for prohibiting the use or single use bags. Those were preventing sewer blockages and flooding, promoting beautification and savings cost from cleaning up plastic bag pollution in the environment. The Court opined that the Ordinance’s solid waste management cannot avoid preemption just because it has other purposes.

The City’s argument that plastic bags were not containers as defined in the Act did not convince the Court. The Court looked at the plain meaning of container as an object that can be used to hold or transport something.

The City claims that it is authorized by state law to protect water sources, water supply, and watersheds, regulate water systems in a manner that protects the municipality interests. To adopt and enforce rules pertaining to operating a drainage utility system, maintain and regulate the cleaning sewers etc.

But the Court concludes “that clear stated intent of the Act is to control the manner of regulating the sale or use of containers or packages for solid waste management purposes. To conclude otherwise would render the statute meaningless.” The Court affirmed the court of appeals decision in favor of the The Laredo Merchants against the City of Laredo.

In the Court’s concurring opinion it mentions the problem with a “patchwork of disparate local regulations” having the “practical effect of allowing the most restrictive local ordinances to the state wide standard….the legislative branch, not the judiciary, bears the unenviable task of making complicated policy decisions that balance the benefits of uniform regulation and the myriad of burdens….”

The concurring opinion wants the legislature to uniformly fix the “assault on the ecosystem” rather than various municipalities creating confusing, inconsistent ordinances unfair to local citizens and businesses.

A home rule city may do anything authorized by its charter that is not
specifically prohibited or preempted by the Texas Constitution or state or federal law.

Check in soon to see more information on preemption of local Texas dog ordinances. For more information see Eric’s homepage at http://erictorberson.com and contact him for more information.

Texas Noise Violation

Is There a Texas State Law Noise Ordinance?

State law and an ordinance are 2 different things. The ordinances in a particular city are different than a law governed by the state statutes.

Does a state law noise ORDINANCE exist? No, it does not under that name. An ordinance is local city law. Many cities have passed their own noise ordinances regarding noise level during certain times of the day within their city limits. The only Texas state law covering noise is DISORDERLY CONDUCT. It protects against unreasonable noise exceeding 85 decibels following being warned by a magistrate or peace officer. 

-Important Note: According to the Texas D.O.C. statute noise is presumed to be unreasonable when exceeding 85 decibels after the noise maker receives notice from a magistrate or peace officer that the noise is a public nuisance.

How Loud is 85 Decibels?

The decibel level of noise is going to be relative. So here are some examples:

60 Conversation
75 Dishwasher
Risk of Losing Hearing
85 Heavy city traffic, school cafeteria, vacuum cleaner
95 Motorcycle

The higher the level the shorter the amount of time a person can endure the noise before hearing loss sets in.

Here is a link to Decibel Meters on amazon- Decibel Meters. A decibel meter can be handy to prove a noise violation or disprove a noise violation.

If I live Outside the City Limits Can I Report Loud Music?

If you live outside the city limits in Texas you can report loud music. The Texas disorderly conduct statute punishes the person making unreasonable noise in or near a private residence that they have no right to occupy.

DISORDERLY CONDUCT. (a) A person commits an offense if he intentionally or knowingly:

5) makes unreasonable noise in a public place other than a sport shooting range, as defined by Section 250.001, Local Government Code, or in or near a private residence that he has no right to occupy;

(1) an act is deemed to occur in a public place or near a private residence if it produces its offensive or proscribed consequences in the public place or near a private residence; and

(2) a noise is presumed to be unreasonable if the noise exceeds a decibel level of 85 after the person making the noise receives notice from a magistrate or peace officer that the noise is a public nuisance.

(d) An offense under this section is a Class C misdemeanor.

How Do I Find Out my Noise Complaint Laws?

If you are in a city there is a good chance the city has adopted a code of ordinances. Many cities have their ordinances online and can be viewed on the city’s website. If you live in an unincorporated area of Texas there will not be a city ordinance to cover you.  The only relief will be from the disorderly conduct statute about unreasonable noise that was discussed above. 

If your city is a Home Rule Municipality then it is permitted to pass ordinances.  A home rule city may do anything authorized by its charter that is not specifically prohibited or preempted by the Texas Constitution or state or federal law.

Texas Local Government Code 217 allows Type A general law municipalities to enforce certain laws allowed by statute such as Code 217 as follows:

Sec. 217.003. DISORDERLY CONDUCT. (a) The governing body of the municipality may prevent and may punish a person engaging in:

(1) trespass or breach of the peace;

(2) assault, battery, fighting, or quarreling;

(3) use of abusive, obscene, profane, or insulting language; or

(4) other disorderly conduct.

(b) The governing body may suppress or prevent any riot, affray, NOISE, disturbance, or disorderly assembly in any public or private place in the municipality.

(c) The governing body may restrain or prohibit the firing of firecrackers or guns, the use of a bicycle or similar conveyance, the use of a firework or similar material, or any other amusement or practice tending to annoy persons passing on a street or sidewalk.

(d) The governing body may restrain or prohibit the ringing of bells, blowing of horns, hawking of goods, or any other noise, practice, or performance directed to persons on a street or sidewalk by an auctioneer or other person for the purpose of business, amusement, or otherwise.

A type A general law municipality has no charter and may only exercise those powers that are specifically granted or implied by statute.

What is the Austin Noise Ordinance?

Part of the noise ordinance says a person may not make noise or play a musical instrument audible to an adjacent business or residence between 10:30 p.m. and 7:00 a.m. Other parts of the ordinance cover required permits. Also a person may not operate sound equipment at a business that produces sound: (1) in excess of 85 decibels between 10:00 a.m. and 2:00 a.m., as measured at the property line of the business; or (2) is audible at the property line of the business between 2:00 a.m. and 10:00 a.m.

In Austin, if there is a loud party causing problems the immediate matter can be referred to police by calling 311. Or if it can wait, a call can be made to a district representative. A district representative is a liaison between a police regional command and the community.

The residential area ordinances dealing with sound equipment are as follows:

A person may not use sound equipment that produces sound audible beyond the property line of a residence in a residential area between 10:00 p.m. and 10:00 a.m.

A person may not use sound equipment audible beyond the property line of a residence in a residential area that produces sound in excess of 75 decibels.

What is the Houston Noise Ordinance?

The Houston City Ordinance limits the level of noise by

(1) Residential property: 

a. 65 dB during daytime hours.

b. 58 dB during nighttime hours.

(2) Nonresidential property:

68 dB at all times.

Daytime hours are 8 a.m. to 10 p.m.

The Houston ordinance penalizes up to $1,000 per offense or per hour. It can get pricey.

San Antonio Noise Ordinance

The San Antonio noise ordinance can be very pricey. If it is found that someone recklessly is in violation of the ordinance the fine can range up to $2,000.

A person is in violation of the ordinance if their noise exceeds 63 decibels on residential property measured from another’s separately owned property. When measured from separate ownership property, the noise cannot exceed 85 decibels for entertainment zoned property.

For more information take a look at my San Antonio Noise Ordinance blog post.

HOA Noise Violation

If you live in a neighborhood with an HOA there may be a noise warning in it. See below for an example of an HOA noise violation section of a real HOA agreement.

HOA Noise Violation

Noise Pollution

Some of the problems related to noise pollution include stress, loss of productivity, and decreased concentration.

Health Effects

The subject of noise pollution is recognized as such an important topic that the EPA talks about it:

“Noise pollution adversely affects the lives of millions of people.  Studies have shown that there are direct links between noise and health.  Problems related to noise include stress-related illnesses, high blood pressure, speech interference, hearing loss, sleep disruption, and lost productivity.  Noise-Induced Hearing Loss (NIHL) is the most common and often discussed health effect, but research has shown that exposure to constant or high levels of noise can cause countless adverse health effects.”

Though the EPA recognized that is an important issue, in 1981 President Reagan decided that it was best handled at the state and local level and closed the Office of Noise Abatement and Control (ONAC).

Related Questions

Can I file a lawsuit against someone who is making too much noise?

Yes, you can file a lawsuit for damages.

Here is a link to our page for you to download a petition for a Justice of the Peace smalls claims lawsuit petition.

It will be best to make that the last resort. It it will look better in court by attempting to contact the offending party first and asking them to turn down the music. Mailing a certified letter with specifics can either help stop the noise nuisance or it will help in court that you tried to settle this case pre-lawsuit. But sometimes asking just does not work.

Where should I measure the noise from?

In most cases, it is preferable to get a decibel meter and measure from the edge of your property next to where the noise is originating.

You can check out and buy a decibel meter at this following link in amazon- Decibel Meters for purchase.

Conclusion

Noise violations can be expensive monetarily and emotionally. It is easier for the parties to come to an agreement before taking the situation to court. Courtesy between neighbors with regard to loud music is the best route. However, sometimes court is the only solution.

Where there is no successful compromise the time arrives for law enforcement or the HOA to get involved and begin writing warnings and tickets.

Win Your ALR Hearing in Texas

You have been arrested or charged with a Texas DWI or DUI. You now are facing a driver’s license suspension and need advice fast. Quick action is needed but it is not a hopeless, impossible situation to try and save a driver’s license from a suspension.

Winning a Texas ALR suspension hearing is not impossible. First, you must request a hearing within 15 days of the refusal or failure test. The request deadline is within 20 days of the DPS letter if it was a consensual blood test failure. You must ask for discovery. You must show up to the hearing prepared to argue the case with or without your witnesses present.

What is my Texas Drivers License Status?

Your driver’s license status after a DWI or DUI arrest, and within 40 days, is still the same as it was before the charge or arrest. In order to have a chance at saving a driver’s license a request MUST be done in 15 days of notice. By missing or ignoring the 15 day ALR hearing request a person’s driver license will be automatically suspended at 40 days. After 40 days a person will need to obtain an occupational driver’s license to legally drive.

Once a hearing is properly requested the person’s driver’s license is good until an eventual hearing. If the hearing officer finds that not enough evidence exists for a suspension, than the driver is free to immediately get a new license from the DPS. If enough evidence exists, the driver’s license will be suspended for the period of time stated in the judge’s order.

Texas drivers may check the status of their license online on the Texas Drivers License Eligibility website. A warning to the user is that the website is usually months off.

ALR Hearing Request Form

There are 4 ways to request an ALR hearing-

ALR Fax Request

The first and recommended way is by fax. This provides the requester proof that the request was actually done if it gets lost in the system. Also, the hearing request and discovery request can be done at the same time.

ALR Phone Request

This can be time consuming waiting for an operator. There is also no proof in case the hearing is not input into the system.

ALR Mail Request

This needs to be done by certified mail in order to prove that the request was done in a timely manner.

ALR Online Request

The DPS has a website form to request a hearing. It is not the same place that a discovery request should be sent. It will only accomplish a hearing request. This would a workable method for a person at the deadline with no time to type out a request.

Sample Letter to request a Hearing

Below is a sample letter for an ALR hearing request combined with a discovery request. I fax this in to the required fax numbers. The earlier before the 15 day deadline the better.

ALR Hearing Discovery

Once discovery is requested properly the DPS attorney has an ongoing duty to supplement the discovery within 5 days of when they get it. The discovery includes police reports, witness statements, blood and/or breath tests, or any other evidence they intend to use to prove the case at the hearing.

ALR Hearing Witnesses

If the driver or attorney for the driver wants the arresting officer(s) to appear a subpoena must be issued. There are procedures and timelines required to subpoena witnesses. These rules must be followed properly or the subpoena will not be enforceable.

How to Win and ALR Hearing

The quickest way to win an ALR hearing is to properly subpoena the arresting officer. If the witness does not show up to the hearing the witness’s affidavit and paperwork is not admitted into evidence. The DPS attorney has to show “good cause” on why the witness did not appear. The judge will base a ruling on whether the hearing should be delayed based on whether good cause is shown.

The DPS attorney has to prove that police had a right to stop, detain and arrest the driver. If it is not clear that the officer had a legitimate reason to stop the driver than the case for a driver’s license suspension cannot be proven.

Breath Test Records

According to Texas Administrative Code Section 159.151– “A defendant may request inspection, maintenance and/or repair records for the instrument used to test the defendant’s breath specimen for the period covering 30 days prior to the test date and 30 days following the test date. If the records are in the actual possession of DPS, DPS shall supply the records to the defendant within ten days of receipt of the request. If DPS fails to provide properly requested records after the defendant has paid reasonable copying charges for them, evidence of the breath specimen shall not be admitted into evidence.”

DPS must prove that the DIC 24 was read to the driver and breath and/or blood test was refused. For breath test failure cases a 15 minute observation period is required and both test scores blown need to be above .08.

If the driver consents to a blood test it may be over .08. This will result in an ALR hearing. The DPS must prove chain of custody with a sworn affidavit. The person who drew the blood must be a qualified technician according to 724.017 of the Texas Transportation Code. A licensed or certified emergency medical technician may not take a blood specimen unless authorized by the medical director of the entity employing the EMT.

The DPS will sometimes try and prove their reason for the stop by conclusory statements. These are not enough without explaining the circumstances.

Trying to win under these circumstances involves most likely a hearing in person. On a telephonic hearing the officer must call in on time or the DPS loses the case. But over the phone the driver loses the opportunity to cross examine the officer in person to thoroughly cover the important issues.

What Happens if I Did Not Get My Temporary Driving Permit?

It seems quite often that the arresting officer forgets to forward the DIC paperwork, including the temporary driving permit, to the jail. In this case, the driver or attorney will need to contact the arresting officer about getting the temporary driving permit. It will contain critical information needed to request the driver’s license hearing. If the information is missing the DPS will deny a hearing for the driver. The temporary driving permit is also needed to lawfully drive. It replaces the driver’s license for the time being.

Texas Suspension Periods

Suspension periods vary depending on previous issues with law enforcement. Also a Texas DWI is different than a Texas DUI. You can read more about the difference here http://erictorberson.com/dui-vs-dwi.

Conclusion

Winning an ALR hearing can be difficult for even a trained attorney. There are procedures that an attorney will know that most people are not aware of. If a person cannot afford to hire a lawyer, it would be wise to at least speak to me or another attorney and get some advice. However, it is better to try to win rather than not at all. Never lose hope and call me with any questions. Look at my main page for more information Home.

Texas Warrant Search

A Texas arrest warrant can be issued for several different reasons. If the police think a crime has been committed a detective will put together a description of evidence into a probable cause affidavit. It will then be used to support an application for an arrest warrant.

Once the arrest warrant is signed by a judge it will be input into the system. The person described in the warrant will be called to turn themselves in or be arrested by another means. Depending on the Texas county the police may show up at the person’s home to arrest them or it will linger until the person is stopped for a traffic violation.

Failure To Appear Traffic Ticket

If a person fails to pay a ticket for a traffic offense a failure to appear can be issued. In Texas, a person can check to see if there any such issues at http://www.texasfailuretoappear.com/search.php. This is not actually a warrant but can be detrimental for a person by keeping them from being able to renew a driver’s license.

Failure To Appear Warrant

If a person misses court for a Class B misdemeanor or above, a warrant can be issued by the court. The person’s bond is forfeited unless the person can show good cause about why they did not appear. This is where the term judgment NISI comes in. This is Latin for “unless”.

Travis County Warrant Search

There is also information on the Austin Criminal Lawyer page on this site.

Some Texas counties have an online site that allows a person to check to see if they have a warrant in that county.

You will need to person’s last name and date of birth. Or if you know a cause number you may enter that in the space provide. Travis county’s website is the following link Travis County Warrant Search.

The example below is of the Travis County Outstanding Warrants Information fill in the blank:

Travis County Warrant Search
Travis County Warrant Search

Williamson County Warrant Search

Williamson County, Texas does not have a way to check for warrants online. They do have a couple of options. A person can show up at the sheriff’s office with an ID and ask. (Beware that this way they will probably immediately arrest the person if they have a warrant out.) Another way to check is an attorney can fax a letter to the Williamson County Sheriff’s Office 512-943-1314 on letterhead. The letter asking the sheriff’s office to determine if a person has a warrant out for their arrest.

I will do this request for my clients who want to confirm whether they need to have a bondsman ready to bail them out of jail http://erictorberson.com/williamson-county-criminal-attorney. For privacy reasons, the warrants division at the sheriff’s office in Williamson County will not give out warrant information over the phone or by email. This is not uncommon for many counties. Maybe some counties think that people will elude the system if they find out they have a warrant.

If a person is not able to drive to a specific county to check if they have a warrant, there is another option. The person can bring their identification to the nearest law enforcement agency or jail and inquire about a warrant search. The person can just say they are doing it just to make sure. Better safe than sorry. If you think you have a warrant though, it might be best to already have a bondsman on hand ready to bond you out.

Harris County Warrant Search

According to the Harris County Sheriff’s Office website, a person can go to the Harris County District Clerk’s website and search for misdemeanor and felony warrants. You would need to generate a user name and password to login to the system. You can also search for ongoing cases in Harris County, both civil and criminal.

Dallas County Warrant Search

Dallas County has a convenient website to look up warrants. You can google Dallas County warrant search and it comes up. There is also an automated number with the Dallas Police Department to call and check for warrants.

Bexar County Warrant Search

A San Antonio Municipal warrant search website is available to search for San Antonio warrants. To search for court records in Bexar County there is a site to enter a person’s name. Otherwise to check for a warrant it may be necessary to bring an ID to the sheriff’s office and ask if there is an open warrant.

It’s not clear why there is not a single website for the whole state of Texas to check for any outstanding warrants. It seems like it would save a lot of resources and allow many people to get unresolved legal issues finished up. The state and local municipalities would see a rise in income from fines and court costs as well.

Call or email me to help you with any legal issues that you have. http://erictorberson.com.