Category: law

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.

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

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.  

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. 

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/

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.

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.

Accusation	DL Suspension Driver under 21	DL Suspension Driver 21 an up
DUI (minor only) or DWI who consensual breath/blood test failure with no priors	60 days	90 days
DUI (minor) or DWI (prior within 10 years) consensual test breath/blood failure with prior	120 days	1 year
DUI with 2 or more prior convictions	180 days
DUI or DWI (prior within 10 years) refusal with no prior	180 days	180 days
DUI or DWI refusal with prior	2 years	2 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

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

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/

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 Charge	Max Severity of Punishment	Lawyer Cost
Class B Misdemeanor	6 months jail	$3,000 and up
Class A Misdemeanor	1 year jail	$4,000 and up
State Jail Felony	2 years state jail	$6,000 and up
3rd Degree Felony	10 years prison	$8,000 and up
2nd Degree Felony	20 years prison	$10,000 and up
1st Degree Felony	life or 99 years prison	$12,000 and up

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

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

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

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 less	up to 6 months jail
Class A Misdemeanor	2-4 oz	up to 1 year jail
State Jail Felony	4 oz-5 lbs	6 months to 2 years prison
3rd Degree Felony	5 lbs-50 lbs	2-10 years prison
2nd Degree Felony	50 lbs-2000lbs	2-20 years prison
1st Degree Felony	2000 lbs or more	5-99 years prison

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

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 Ordinance	Monday-Thursday	Friday-Saturday
Daytime	6am-10pm	6am-11pm
Nighttime (-7 dB)	10pm-6am	11pm-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.

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

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.

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.

Believe it or not, but any kind of animal cruelty was not a felony in Texas until 2001. It took Loco, a Dallas puppy, to be temporarily stolen and his eyes gouged out, to make some animal cruelty actions a felony.

Even though our pets are seen as family, animal protection laws in the United States and Texas are still catching up with other laws regarding the protection of children and other human rights. Texas civil law still regards dogs as property. But property of very little monetary value even though they are capable of love, personality, and loyalty.

It is fortunate that the criminal law sees the importance of preventing people from cruelly treating animals, by creating a more serious punishment than prior to 2001.

What is the Animal Welfare Act, 1966?

We cannot talk about Texas Cruelty Laws without first talking about earlier laws. In the United States federal law, to finally make a change, it took Coles Phinizy to write an article in Sports Illustrated in 1965. Pepper, a Pennsylvania dalmatian, was stolen from his yard and bought by a Bronx hospital. Pepper died during an experimental surgical procedure.

In 1965 New York US Representative Resnick introduced a bill requiring dog and cat dealers and the laboratories purchasing them to have a license. The bill also required USDA inspection.

A 1966 Life Magazine article, “Concentration Camp for Dogs,” prompted an investigation into a Maryland dog dealer’s deplorable living conditions for his dogs. This sparked a public the push for animal housing and care standards.

What is Cruelty To Nonlivestock Animals?

A nonlivestock animal is a domesticated living creature. Stray or feral dogs and cats are nonlivestock animals. Also included are any wild animals that were previously captured. This definition does not include a wild animal or obviously a livestock animal.

The mental state required to be guilty of this statute is intentional, knowing or reckless. Criminal negligence is not a mental state included in this statute.

Intentionally means a conscious objective or desire to engage in the conduct or cause the result. Knowing for a person takes place when he is aware that his conduct is reasonably certain to cause a result. Reckless conduct is a gross deviation from the standard of care that an ordinary person would exercise.

Animal Cruelty

It is an offense to cause an animal unjustified pain, suffering or cruelly kill or causes serious bodily injury to a nonlivestock animal. Also, to add confusion, a person cannot kill, poison, or cause serious bodily injury to an animal without the owner’s consent.

A person cannot unreasonably fail to provide necessary food, water, care, or shelter to an animal in a person’s custody. Nor can a person unreasonably abandon an animal in the person’s custody. It is also illegal to transport or confine an animal in a cruel manner.

It is an offense to cause bodily injury to an animal or cause an animal to fight another animal if either animal is not a dog. A person can’t use a live animal as a lure in a dog race or training, nor can a person overwork an animal.

The punishment is a Class A misdemeanor for the following offenses:

• Lack of food, water, care or shelter.
• Abandon, transport, or confine cruelly.
• Seriously overwork animal.

The punishment is a State Jail felony for the following:

• Cause an animal to fight another if either is not a dog.
• Use of a live animal as a lure in dog race training or dog coursing on a racetrack.

The punishment is a 3rd Degree felony for the following:

• Torture, cruelly kill, or cause serious bodily injury to an animal.
• Kill, poison or cause serious bodily injury to an animal without the owner’s consent.

Abandoning an Animal

In Texas, and many other places, people abandon animals on dark roadways or in the country. It is a Class A misdemeanor with punishment up to a year in jail and/or $4,000 fine. This common occurrence seems to be acceptable to many. But dogs can starve or get hit on the roadway and die a miserable death.

Defenses to Cruelty To Nonlivestock Animals

It is a defense if a person has a reasonable fear of bodily injury to themselves or another by a dangerous wild animal. Or a person has a defense for bonafide experimentation for scientific research.

It is a defense to cruelty, while in the scope of employment, for a public servant, a person in electricity operations, or natural gas delivery.

The statute also mentions a defense under accepted legal wildlife practices solely for the purpose of fishing, hunting, trapping, wildlife management, or depredation.

Is it Illegal to Shoot a Dog in Texas?

It is only a defense to animal cruelty for a person who kills a dog during it injuring or killing livestock on the person’s land or while damaging crops and only at the time of either discovery.

What is Cruelty to Livestock Animals?

A livestock animal are cattle, sheep, swine, goats, ratites, poultry commonly raised for human consumption, horses, ponies, mules, donkeys, hinnies, native or nonnative hoofstock, and native or non native foul raised under agricultural practices.

The mental state required is easier on the offender than nonlivestock animals. Livestock animal cruelty only requires a mental state of intentionally or knowingly. Reckless mental state is not included here as it is in cruelty to nonlivestock animals.

Livestock Cruelty

It is illegal to cause unjustifiable pain or suffering to a livestock animal. A person in custody of a livestock animal must not fail unreasonably to provide necessary food, water, or care.

A person must not unreasonably abandon a livestock animal in the person’s custody. Nor transport or confine a livestock animal cruel or unusually.

The statute prevents a person from administering poison, without legal authority or permission, to a livestock animal other than cattle, horses, sheep, swine, or goats belonging to another. Also, a person shall not cause a livestock animal to fight with another livestock animal or nonlivestock animal.

It is also illegal to use a livestock animal as a lure in dog race training or dog coursing on a racetrack. A person can’t trip a horse or seriously overwork a livestock animal.

The punishment is a Class A misdemeanor for the following:

• Failure to provide food, water or care for livestock in person’s custody.
• Unreasonably abandon livestock animal.
• Transport or confine livestock in cruel and unusual manner.
• Overwork a livestock animal.

The punishment is a State Jail felony for the following:

• Torture a livestock animal.
• Poisoning another’s livestock animal other than cattle, horses, sheep, swine, or goats without legal authority or owner’s permission.
• Fighting livestock animal with another livestock animal or nonlivestock animal.
• Using live livestock animal as a lure in dog race training or dog coursing on a racetrack.
• Tripping a horse.

Defenses to Livestock Cruelty

A person can trip a horse to identify the owner or provide vet care to the horse. It is also a defense if the person is engaging in bonafide experimentation research.

Generally accepted and solely for the purpose of legal fishing, hunting, or trapping wildlife management or depredation is a defense.

Cruelty to Animals Act, 1876

Cruelty to animals was recognized as a problem in Great Britain far earlier than in the United States. The parliament passed a bill also known as the Vivisection Act. It is the world’s first known legislation that regulated the treatment and use of live animals during scientific research.

Charles Darwin (1809-1882) was a proponent of animal welfare. He was disturbed by an animal’s unnecessary suffering. He wrote to the Oxford Zoologist in 1871:

“You ask about my opinion on vivisection. I quite agree that it is justifiable for real investigations on physiology; but not for mere damnable and detestable curiosity. It is a subject which makes me sick with horror, so I will not say another word about it, else I shall not sleep to-night.“

In The Descent of Man, Darwin tells of a touching story about a dog on a vivisectionist operating table, “In the agony of death a dog has been known to caress his master, and every one has heard of the dog suffering under vivisection, who licked the hand of the operator; this man, unless the operation was fully justified by an increase of our knowledge, or unless he had a heart of stone, must have felt some remorse to the last hour of his life (p. 115).”

Conclusion

It is interesting to see how animal law has evolved, through the years, compared to other movements and areas of law. It seems that animal welfare laws have never gotten the priority in relation to other societal needs and concerns. Especially compared to humans.

The fact that it took until 2001 to make gouging out a puppies eyes a felony in Texas lets a person know where the Texas legislature has stood on animal protection. This may be either a reflection of our voter’s priorities or lack of interest in the topic.

Regardless of the speed, animal protection laws are moving toward stricter and more serious punishment for people causing needless animal suffering.

If you need help or advice for your legal issue, do not hesitate to contact http://erictorberson.com.

UPDATE!!! On March 28, 2022 the Texas Drone Law was ruled unconstitutional in the Western District of Texas in Austin, TX. 

“U.S. District Judge Robert Pitman struck down a Texas drone law (one of the most restrictive in the U.S.), for violating the First Amendment’s protections of freedom of speech and the press.” 

Texas drone legislation was introduced in 2013. Prior to that no state legislation existed in Texas. The 2013 Texas Drone Privacy Act makes it illegal to capture images of private property. The act was introduced and passed not long after it was discovered that the Columbia Packing Plant in Oak Cliff, Texas was dumping pig blood into the Trinity River.

City records showed that the packing plant was dumping “925,300 gallons of fluid a month into the creek.” They were temporarily shut down and the owners received several indictments which were later dismissed by the Dallas district attorney.

Texas Government Code CHAPTER 423. USE OF UNMANNED AIRCRAFT

If this Texas drone law had been in effect in 2011, without one of the exceptions, it may have been a crime for the drone operator to capture the pollution images. His recreational drone footage could have been a class B misdemeanor and he might have been liable for a $10,000 civil penalty to the packing plant for distributing the imagery.

A possible exception that may apply to this pig blood scenario is exception number Government Code Chapter 423.002 (10)– filming at the scene of a spill, or a suspected spill, of hazardous materials.

Drone Footage of Private Property Cannot be Used as Evidence

Under the current law, not only can you be arrested, but also the images cannot be used as evidence against a private land owner/renter lawbreaker unless certain exceptions apply. A person in imminent danger qualifies as an exception. But any animal cruelty does not qualify as an exception and can result in the drone operator’s arrest and up to 6 months in jail with a $2,000 fine.

Drone Footage Now Illegal to Use Except to Prosecute Drone Operator

Chapter 423.005 makes it clear that drone footage captured in violation of this statute cannot be used against anyone except the drone operator to prove a violation of this statute.

Sec. 423.005.  ILLEGALLY OR INCIDENTALLY CAPTURED IMAGES NOT SUBJECT TO DISCLOSURE.  (a)  Except as otherwise provided by Subsection (b), an image captured in violation of Section 423.003, or an image captured by an unmanned aircraft that was incidental to the lawful capturing of an image:
(1)  may not be used as evidence in any criminal or juvenile proceeding, civil action, or administrative proceeding;
(2)  is not subject to disclosure, inspection, or copying under Chapter 552; and
(3)  is not subject to discovery, subpoena, or other means of legal compulsion for its release.(b)  An image described by Subsection (a) may be disclosed and used as evidence to prove a violation of this chapter and is subject to discovery, subpoena, or other means of legal compulsion for that purpose.

Images of Animal Cruelty Cannot be Used to Prove Animal Cruelty

The images taken of private property can only be used to prosecute the drone operator. They would not be allowed to be used as evidence of someone who was for instance, committing any cruel acts against animals. There are 21 listed exceptions that make private drone image capturing lawful and nothing covers anything having to do with animals.

Why would a person’s privacy rights supercede identifying and stopping animal cruelty? It is an interesting dilemma and nobody seemed to talk about it during the voting for this bill.

There was no effort to make a narrow exception where a person provides the evidence only to law enforcement. But on the other hand a problem with this might be where to draw the line. What happens if a drone operator spots a marijuana or other drug operation? Do amature detective drone operators become a wave of the future? Apparently proponents of HB 912 were worried about that.

What Constitutes an Illegal Search and Seizure?

Private property rights are an important issue for Americans. The constitution specifically discusses this in the 4th amendment. The 4th amendment is based on government intrusion and unreasonable searches and seizures. Intrusion by private citizens is not mentioned.

Police, or someone instructed by the police, cannot enter property without the owner’s permission. This can result in inadmissible evidence based on fruit of the poisonous tree. Illegal searches and seizures can be about a vehicle stop for an invalid reason to walking into someone’s house without permission or a warrant to be there.

Searches by Private Citizens

A private citizen gathering evidence is not subject to the 4th amendment. There are trespass laws that a private citizen can be charged with, but evidence of a crime gathered by the citizen is still admissible in court. For instance, a person could walk onto another’s property and photograph animal cruelty and it can be used by the police. This is as long as the police did not instruct the person to do this.

The 2013 drone law does not allow conducting a similar act, but instead filming with a drone camera. The only close exception that might apply to this would be Ch 423.002 (14) where a drone is on public property and at a height of no more that 8 feet filming without an amplified “image beyond normal human perception.”

Do I Have to Pay a Fine for a Civil Action?

On top of being arrested and possibly fined up to $2,000 that is not all. A person can also have to also pay a civil penalty of $10,000, court costs and reasonable attorney’s fees. If proven that the images have been disclosed, displayed or distributed with malice, then an actual higher amount of damages may be accessed based on the actual damages.

Attorney’s fees go to the prevailing party. So if the charges are not proven the accused drone operator may receive reasonable attorney’s fees from the accuser.

“Malice” is a specific intent by the defendant to cause substantial injury or harm to the claimant. 

Also under Sec. 423.004 there is a $10,000 civil penalty for disclosure, display, distribution, or other use of an image instead of destroying the images. It can be costly because if “malice” is proven, the penalty can be more than $10,000. Theoretically, it could be 6 or 7 digits. Not to mention the judge “shall” award costs and reasonable attorney’s fee to the prevailing party. So for example, if someone captured animal cruelty taking place on private property and that footage caused a public outcry to boycott the claimant’s business, the drone operator would be liable to the loss of business. The damages could be astronomical.

Is it Illegal to Fly a Drone Over an Animal Feedlot?

In Texas it is now illegal to fly a drone over a “concentrated animal feeding operation” by less than 400 feet high. It should be noted that FAA regulations limit a drone flying altitude to a maximum of 400 feet. So flying drone over an animal feedlot will be break a law either way.

Can I Fly Over a Sports Stadium or Game?

The FAA Unmanned Aircraft Systems website is somewhat conflicting. It says that it is not permitted to fly a drone after one hour before or until one hour after the following-

-Major League Baseball
-National Football League
-NCAA Division One Football
-NASCAR Sprint Cup, Indy Car, and Champ Series races

But later on the site mentions that a drone should not be flown within 3 nautical miles of a stadium or venue.

Another regulation, CFR 107.39, states that a drone cannot be flown over a human being unless they are in a covered building or vehicle. This is to protect them from the drone from falling on them.

Can I Shoot a Drone Flying Over My Property?

No you cannot. It is not illegal to fly a drone over someone’s property. Filming is a different issue. If the drone is low flying, possibly creating a safety risk than that may be a different situation. Shooting a drone can open a person up to a civil lawsuit and getting arrested for a federal offense. 

A California small claims case took place in 2014 where a neighbor shot a homemade drone with a shotgun over the drone operators property. The judge ruled in the drone operators favor and awarded monetary damages for the cost of the drone.

It is also a federal crime, AIRCRAFT SABOTAGE (18 U.S.C. 32), to shoot down a drone.

Can I Fly a Drone Near a Cell Phone Tower?

A drone cannot be flown less than 400 feet over a critical infrastructure facility. In 2017 the drone statute expanded the definition of “critical infrastructure facility” to include a cell phone tower. The drone also cannot make contact with the cell tower or interfere  with the operations. Keep in mind that FAA regulations limit a drone to a maximum of 400 feet. 

Can the Police Use a Drone to Search My Property?

If the police can fit into certain exceptions, they can capture images by drone over private property. They must have a valid search or arrest  warrant. They also can also video record in the immediate pursuit of someone with probable cause or  reasonable suspicion that a person committed a felony. They can also  document a felony crime scene. 

The following is a further list including what the police can choose to record without the owners permission:

• A human fatality
• A motor vehicle with death or serious bodily injury or accident on state highway or federal highway
• Searching for a missing person
• For a high risk tactical operation posing a threat to human life
• Border security within 25 miles of the U.S. border
• Surveying to determine a state of emergency declaration
• Public safety, protecting property, surveying damage during a state of emergency
• Air quality sampling and monitoring by local or state law
• At scene of a spill or suspected spill of hazardous materials
• Fire suppression or rescuing a life in imminent danger

Do I have to Have a License to Fly My Drone?

Not by Texas state law, but you do under the FAA regulations. A pilot must be 16 years old and speak, read and write english. There is an exam that each pilot needs to pass in order to get their drone pilots license. Every 2 years a pilot needs to pass a recurrent test to maintain licensing.

Is This an Ag-Gag Law?

The timing of this law and the fact that it has an exception for  humans in imminent danger, but does not mention animal cruelty, looks a lot like ag-gag.

Animal feedlots and packing houses stand to lose a lot of revenue if they are shut down for any period of time due to violations. Drones coming along and filming violations can be a real problem for business.

Privacy Rights

The bill was advertised to help the privacy of private property owners and renters. By emphasizing that side of the issue, the proponents avoided questions about who really stands to benefit from this bill. Big business is a big winner. Maybe marijuana plant growers are helped as well.

Animals in Imminent Danger Exception to Drone Filming

Perhaps there should have been an exception for filming with animals in imminent danger. There could be animal torture taking place and a drone would have been the only way to identify that it is taking place. Or a beloved pet may have run off and a drone would be a good way to search a large rural area.

These exceptions are not included and there is a good chance that they will not be until animals gain more status in our society.

Possible FAA 107 Rule Changes in 2019

There will be some possible changes coming to the FAA rules. One will be allowing drones to be flown over people under certain circumstances. Also there have been several requests for waivers to fly at night. A new proposed change would allow drones to fly as night.

Drones Finding Poachers in Africa

Drones are now being used to catch poachers in Africa. Most of the poaching happens at night, so the drones are using infrared camera equipment. Some estimate that the illegal poaching brings in $10 billion dollars. Some of this money goes to other illegal activity such as terrorism. This makes drone use in capturing poachers such a valuable tool. To stop criminals and for the African animals future survival as well.

Texas Government Code Exceptions to Filming with Drone

Sec. 423.002.  NONAPPLICABILITY.  (a)  It is lawful to capture an image using an unmanned aircraft in this state:

(1)  for the purpose of professional or scholarly research and development or for another academic purpose by a person acting on behalf of an institution of higher education or a private or independent institution of higher education, as those terms are defined by Section 61.003, Education Code, including a person who:

(A)  is a professor, employee, or student of the institution; or

(B)  is under contract with or otherwise acting under the direction or on behalf of the institution;

(2)  in airspace designated as a test site or range authorized by the Federal Aviation Administration for the purpose of integrating unmanned aircraft systems into the national airspace;

(3)  as part of an operation, exercise, or mission of any branch of the United States military;

(4)  if the image is captured by a satellite for the purposes of mapping;

(5)  if the image is captured by or for an electric or natural gas utility or a telecommunications provider:

(A)  for operations and maintenance of utility or telecommunications facilities for the purpose of maintaining utility or telecommunications system reliability and integrity;

(B)  for inspecting utility or telecommunications facilities to determine repair, maintenance, or replacement needs during and after construction of such facilities;

(C)  for assessing vegetation growth for the purpose of maintaining clearances on utility or telecommunications easements; and

(D)  for utility or telecommunications facility routing and siting for the purpose of providing utility or telecommunications service;

(6)  with the consent of the individual who owns or lawfully occupies the real property captured in the image;

(7)  pursuant to a valid search or arrest warrant;

(8)  if the image is captured by a law enforcement authority or a person who is under contract with or otherwise acting under the direction or on behalf of a law enforcement authority:

(A)  in immediate pursuit of a person law enforcement officers have reasonable suspicion or probable cause to suspect has committed an offense, not including misdemeanors or offenses punishable by a fine only;

(B)  for the purpose of documenting a crime scene where an offense, not including misdemeanors or offenses punishable by a fine only, has been committed;

(C)  for the purpose of investigating the scene of:

(i)  a human fatality;

(ii)  a motor vehicle accident causing death or serious bodily injury to a person; or

(iii)  any motor vehicle accident on a state highway or federal interstate or highway;

(D)  in connection with the search for a missing person;

(E)  for the purpose of conducting a high-risk tactical operation that poses a threat to human life;

(F)  of private property that is generally open to the public where the property owner consents to law enforcement public safety responsibilities; or

(G)  of real property or a person on real property that is within 25 miles of the United States border for the sole purpose of ensuring border security;

(9)  if the image is captured by state or local law enforcement authorities, or a person who is under contract with or otherwise acting under the direction or on behalf of state authorities, for the purpose of:

(A)  surveying the scene of a catastrophe or other damage to determine whether a state of emergency should be declared;

(B)  preserving public safety, protecting property, or surveying damage or contamination during a lawfully declared state of emergency; or

(C)  conducting routine air quality sampling and monitoring, as provided by state or local law;

(10)  at the scene of a spill, or a suspected spill, of hazardous materials;

(11)  for the purpose of fire suppression;

(12)  for the purpose of rescuing a person whose life or well-being is in imminent danger;

(13)  if the image is captured by a Texas licensed real estate broker in connection with the marketing, sale, or financing of real property, provided that no individual is identifiable in the image;

(14)   from a height no more than eight feet above ground level in a public place, if the image was captured without using any electronic, mechanical, or other means to amplify the image beyond normal human perception;

(15)  of public real property or a person on that property;

(16)  if the image is captured by the owner or operator of an oil, gas, water, or other pipeline for the purpose of inspecting, maintaining, or repairing pipelines or other related facilities, and is captured without the intent to conduct surveillance on an individual or real property located in this state;

(17)  in connection with oil pipeline safety and rig protection;

(18)  in connection with port authority surveillance and security;

(19)  if the image is captured by a registered professional land surveyor in connection with the practice of professional surveying, as those terms are defined by Section 1071.002, Occupations Code, provided that no individual is identifiable in the image;

(20)  if the image is captured by a professional engineer licensed under Subchapter G, Chapter 1001, Occupations Code, in connection with the practice of engineering, as defined by Section 1001.003, Occupations Code, provided that no individual is identifiable in the image; or

(21)  if:

(A)  the image is captured by an employee of an insurance company or of an affiliate of the company in connection with the underwriting of an insurance policy, or the rating or adjusting of an insurance claim, regarding real property or a structure on real property; and

(B)  the operator of the unmanned aircraft is authorized by the Federal Aviation Administration to conduct operations within the airspace from which the image is captured.

(b)  This chapter does not apply to the manufacture, assembly, distribution, or sale of an unmanned aircraft.

Added by Acts 2013, 83rd Leg., R.S., Ch. 1390 (H.B. 912), Sec. 2, eff. September 1, 2013.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 360 (H.B. 2167), Sec. 1, eff. September 1, 2015.

Acts 2017, 85th Leg., R.S., Ch. 583 (S.B. 840), Sec. 1, eff. September 1, 2017.

Conclusion

The Drone Law is unconstitutional. We shall see if lawmakers try to tailor it another way in the future…

It is not hard to draw a line from bills introduced in congress to the preservation of big business. The question is: How much should our natural resources suffer to profit the bottom line?

Contact myself, Eric Torberson, for any questions about legal services.

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

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

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

What is Considered Drug Paraphernalia in Texas?

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

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

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

Driver License Suspension for Drug Paraphernalia

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

Sec. 521.372. AUTOMATIC SUSPENSION; LICENSE DENIAL.

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

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

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

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

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

What is the Miranda Rights Script?

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

What Does Miranda Rights Law Mean?

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

What is Custodial Interrogation?

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

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

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

Richard Nixon was Against the Miranda Decision

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

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

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

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

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

Do Police Have to Read Miranda Rights for DUI?

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

Miranda Rights Texas

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

Do I have to Talk to the Police?

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

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

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

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

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

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

Texas Search and Seizure Laws

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

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

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

Are You required To Show ID To Police?

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

Can a Drug Dog Smell My Car?

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

What is Probable Cause To Search a Vehicle?

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

Texas Search Warrant

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

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

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

The Drugs Need To Be Tested

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

What Happens if I have a Prescription?

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

Drug Conviction and Federal Financial Student Aid

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

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

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

Pretrial Drug Programs

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

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

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

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

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

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

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

How to Get My Criminal Record in Texas

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

Can I Expunge a Deceased Relatives Criminal Record?

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

What is the Process For an Expunction?

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

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

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

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

(A) full name;

(B) sex;

(C) race;

(D) date of birth;

(E) driver’s license number; and

(F) social security number;

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

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

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

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

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

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

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

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

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

What Happens When Someone Violates an Expunction Order?

Art. 55.04. VIOLATION OF EXPUNCTION ORDER.

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

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

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

Texas Expungement Attorney

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