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

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

DWI in Texas First Offense

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

DWI in Texas 2nd Offense

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

Texas Bail Bondsman

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

Criminal Defense Lawyer

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

3rd DWI in Texas Probation

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

Can a DWI Be Dismissed in Texas?

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

Reckless Driving Texas

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

DWI in Texas 2nd Offense

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

Blood Alcohol Level in Texas

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

How Much Does a DWI Cost in Texas?

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

Texas Street Racing

Attorney Eric Torberson

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

What is Texas Street Racing?

A person participates in:

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

What Happens if You Get Caught Street Racing?

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

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

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

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

  • Previously convicted 2 times of the same offense

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

  • An individual suffered bodily injury

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

  • An individual suffered serious bodily injury

See Texas Punishment page for more information.

Racing on Highway What Happens to my License?

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

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

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

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

What Happens if I Get Caught Driving During Suspension Period?

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

What is the Drag Racing?

The Transportation Code 545.420 defines Drag Racing as:

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

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

What is Racing?

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

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

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

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

Can My Car Be Seized?

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

Why Should I Hire Attorney Eric Torberson?

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

Interfering With Emergency Call

Interference Iphone

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

What Happens When You Interfere With an Emergency Call?

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

Is Interfering With a 911 Call a Felony in Texas?

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

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

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

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

State Jail Felony

Interference With Emergency Request for Assistance Texas Now What?

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

How Do Stop Someone From Needlessly Calling 911?

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

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

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

How can I get out of a ticket in Texas?

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

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

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

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

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

How to get old tickets dismissed in Texas

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

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

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

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

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

How do I check if I owe tickets?

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

How do I get rid of traffic warrants in Texas?

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

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

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

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

How do I get my license reinstated?

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


How much is a reinstatement fee in Texas?

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

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

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

How do you get an occupational license in Texas?

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

How much can I drive with an Occupational Driver License?

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

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

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

How much is an occupational license in Texas?

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

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

Can I get an occupational license for a CDL?

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

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

Robbery in Texas

What is Robbery?

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

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

Robbery is defined under Texas Penal Code 29.02.

What is the Punishment for Robbery in Texas?

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

What Does Aggravated Robbery Mean?

Aggravated Robbery is the act of committing Robbery and:

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

What is the Punishment for Aggravated Robbery?

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

Is it Still Robbery Pointing a Fake Gun?

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

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

How to Fight a DUI Without a Lawyer

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

Why is the Fourth Amendment Important?

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

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

Amendment IV to the U.S. Constitution

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

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

The Police Didn’t Read Me My Rights

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

What Evidence Does The Prosecutor Have?

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

Can You go to Trial Without a Lawyer?

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

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

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

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


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

Unauthorized Use of a Motor Vehicle Texas

What is Unauthorized Use of a Motor Vehicle?

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

What is “Operate” a Motor Vehicle?

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

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

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

The Difference Between Joyridings and Auto Theft

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

What is the Value of the Stolen Property?

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

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

Leaving the Scene of a Single Car Accident in Texas

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

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

If the damage to the vehicle is

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

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

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

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

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

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

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

Restraining Order Texas

Did you mean Protective Order vs Restraining Order?

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

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

What is a Temporary Ex Parte Protective Order?

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

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

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

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

What is a Protective Order in Texas?

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

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

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

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

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

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

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

Where can I file for a Protective Order?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(4) show the date the application was filed;

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

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

(7) show the file number;

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

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

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

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

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

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

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

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

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

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

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

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

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

What is a Magistrates Emergency Protection Order?

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

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

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

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

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

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

How long does a Emergency Protective Order last?

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

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

What is a Restraining Orders vs. Protective Order?

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

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

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

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

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

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

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

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

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

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

Can I drive while my license is suspended?

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

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

Recording a Conversation in Texas

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

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

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

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

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

Federal Marijuana Legalization

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

The More Act 

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

SAFE Banking Act

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

Does the VA Prescribe Medical Marijuana?

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

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

How Much Does a DWI Lawyer Cost?

Call us for more information 888-234-5550

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

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

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

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

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

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

New Braunfels Tx DWI

9 Ways to Help Win a DWI in New Braunfels

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

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

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

New Braunfels DWI Attorneys

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

Comal County Texas DWI Costs

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

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

How Do I Get Out of a DWI?

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

Texas DWI Blood Test

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

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

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

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

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

Who Can Draw a Blood Specimen in a DWI Case?

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

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

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

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

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

What is a Medical Director?

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

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

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

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

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

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

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

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

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

What Location is Used For a Blood Draw?

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

Blood Test Kit

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

What Tubes Are Used For DWI Blood Tests?

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

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

The Phlebotomist SHALL NOT use expired tubes.

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

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

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

More information is to come.

Click here for BAC Chart.

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

DWI Case Intoxilyzer 9000

What is the Intoxilyzer 9000?

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

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

Lambert-Beer Law

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

Infrared Spectrometry Breath Test

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

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

Diabetic Ketoacidosis

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

Intoxilyzer Calibration

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

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

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

15 Minute Observation

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

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

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

Starting the Intoxilyzer 9000

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

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

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

Personal Bond in Texas

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

What is a Personal Bond?

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

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

How Does a Personal Recognizance Bond Work?

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

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

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

What is Required for a Personal Bond?

The defendants:

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

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

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

Texas Castle Law

What is Castle Doctrine in Texas?

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

When Can Deadly Force be Used in Texas?

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

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

Is There a Duty to Retreat in Texas?

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

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

Can You Use Self Defense Against a Police Officer?

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

Defense of Others Law

Can you use deadly force to protect someone else?

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

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

Can You Use Deadly Force to Protect Property in Texas?

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

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

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

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

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

Can I use a Device to Protect Property?

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

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

Texas Marijuana Laws

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

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

Leaving the Scene of an Accident

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

Duty on Striking an Unattended Vehicle Texas

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

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

Duty on Striking Fixture

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

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

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

Accident Involving Personal Injury or Death Texas

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

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

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

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

What if I Didn’t Know I Hit Someone?

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

Hit and Run Dog Law Texas

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

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

What Accidents Do Police Do Reports On?

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

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

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

Texas Vehicle Open Container Law

What is an Open Container?

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

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

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

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

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

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

What is a Public Highway?

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

Exceptions to the Open Container Law

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

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

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

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

Can I be arrested for Open Container of Alcohol?

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

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

San Antonio Noise Ordinance

What are the City of San Antonio Noise Ordinance Times?

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

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

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

How is Sound Measured?

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

For more information the American Standards Institute specifications are used.

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

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

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

What is a Sound Level Meter?

A sound level meter is an instrument including:

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

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

How Loud is Too Loud in San Antonio?

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

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

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

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

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

What is a San Antonio Noise Nuisance?

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

What are the Riverwalk Noise Standards?

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

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

What Time is Noise Curfew in Bexar County?

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

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

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

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

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

Who Gets The Ticket?

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

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

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

San Antonio Noise Violation Fine

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

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

Each day’s violation is a separate fine.


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

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

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

Do You Have To Sign a Traffic Ticket?

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

Can You be Arrested for Not Signing a Traffic Ticket?

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

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

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

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

Can You be Arrested for Speeding?

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

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

Reckless Driving is defined as follows:

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

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

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

(1) a race;

(2) a vehicle speed competition or contest;

(3) a drag race or acceleration contest;

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

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

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

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

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

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


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

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


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

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

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

Deferred Disposition

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

Deferred Disposition vs Deferred Adjudication

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

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

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

What is Deferred Disposition for a Traffic Ticket?

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

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

What Happens if you Break Deferred Disposition?

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

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

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

Can I Get Deferred Disposition with a CDL?

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

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

Can I Get Deferred Disposition on a Construction Zone Ticket?

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

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

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

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

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

Can I Get a Second Chance for my Deferred Disposition?

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

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


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

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

How Much Does a DWI Lawyer Cost in Texas?

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

Make your appointment. We handle several counties in Texas.

DWI Lawyer Cost?

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

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

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

How Much Does a DWI Cost?

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

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

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

Affordable DWI Lawyer

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

How Much Does a Good DWI Lawyer Cost?

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

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

Best DWI Lawyer

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

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

Check out my homepage for more information.

Texas Dangerous Dog Law Book

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

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

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


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

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

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

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

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

Attorney Eric Torberson

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

What is the Police Pull Over Procedure?

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


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

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

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

What Do I Do After I’m Pulled Over?

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

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

Where to Pullover for Police on Highway

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

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

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

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

Not Drinking Alcohol After Arrest

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

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

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

Should I Stop Drinking After a DUI

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

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

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

Can You be Court-Ordered Not to Drink?

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

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

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

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

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

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

AA Attendance Sheet

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

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


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

Texas Failure To Appear

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

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

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

What Make a Ticket Enforceable Against Me in Court?

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

(1) it must be in writing;

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

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

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

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

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

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

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

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

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

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

(1) the municipal judge;

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

(3) the city secretary; or

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

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

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

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

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

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

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

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

Can I Find Out if I Have a Warrant?

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

Who Do I Pay For My Violation?

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

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

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

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

Where Do I Call for Help From the DPS?

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

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

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

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

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

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

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

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

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

My Dog Bit Someone

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

If a Dog Bites Someone Will It Be Put Down?

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

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

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

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

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

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

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

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

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

Texas Dangerous Dog Requirements

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

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

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

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

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

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

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

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

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

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

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

Serious Bodily Injury

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

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

Defenses for the dog accused of causing serious bodily injury:

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

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

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

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

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

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

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

What is Serious Bodily Injury?

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

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

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

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

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

“Serious bodily injury” means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

What Happens If My Dog Kills Someone?

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

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

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

For more information contact dangerous dog lawyer Eric Torberson.

How To Get Out of Jury Duty

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

What if I Accidentally Miss Jury Duty?

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

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

How to Postpone Jury Duty

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

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

Jury Service Exemption

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

Juror Excused by Consent

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


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

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

Is CBD Oil Legal?

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


What is Tetrahydrocannabinol?

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

Cannabidiol. What is it?

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

Is CBD Oil Legal in Texas?

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

Federal Hemp Laws

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

(1) Hemp

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

How To Sell CBD Oil?

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

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

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

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

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

What States is CBD Oil Legal 2019

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

Can I manufacture consumable hemp products?

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

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

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

Legal Property Deed

What us a Deed?

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

What are the different Deeds?

In Texas there are 3 main deeds.

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

General Warranty Deed

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

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

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

Special Warranty Deed

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

Deed Without Warranty

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

What is a Quitclaim Deed?

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

Texas Lady Bird Deed

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

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

Texas Life Estate Deed

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

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

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

Preemption Over Lower Law

What is Preemption?

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

What is Federal Preemption?

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

Supremacy Clause Definition

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

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

McCulloch v. Maryland

Why is McCulloch v. Maryland important?

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

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

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

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

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

Chief Justice John Marshall

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

John Marshall

The 10th Amendment

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

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

Home Rule

What is Home Rule?

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

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

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

Dillon’s Rule

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

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

Home Rule in Texas

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

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

City Ordinance vs State Law in Texas

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

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

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

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

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

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

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

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

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

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

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

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

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

Texas Noise Violation

Is There a Texas State Law Noise Ordinance?

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

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

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

How Loud is 85 Decibels?

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

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

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

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

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

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

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

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

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

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

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

How Do I Find Out my Noise Complaint Laws?

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

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

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

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

(1) trespass or breach of the peace;

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

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

(4) other disorderly conduct.

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

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

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

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

What is the Austin Noise Ordinance?

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

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

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

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

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

What is the Houston Noise Ordinance?

The Houston City Ordinance limits the level of noise by

(1) Residential property: 

a. 65 dB during daytime hours.

b. 58 dB during nighttime hours.

(2) Nonresidential property:

68 dB at all times.

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

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

San Antonio Noise Ordinance

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

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

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

HOA Noise Violation

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

HOA Noise Violation

Noise Pollution

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

Health Effects

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

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

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

Related Questions

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

Yes, you can file a lawsuit for damages.

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

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

Where should I measure the noise from?

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

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


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

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

Win Your ALR Hearing in Texas

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

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

What is my Texas Drivers License Status?

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

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

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

ALR Hearing Request Form

There are 4 ways to request an ALR hearing-

ALR Fax Request

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

ALR Phone Request

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

ALR Mail Request

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

ALR Online Request

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

Sample Letter to request a Hearing

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

ALR Hearing Discovery

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

ALR Hearing Witnesses

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

How to Win and ALR Hearing

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

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

Breath Test Records

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

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

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

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

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

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

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

Texas Suspension Periods

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


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

Texas Warrant Search

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

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

Failure To Appear Traffic Ticket

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

Failure To Appear Warrant

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

Travis County Warrant Search

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

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

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

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

Travis County Warrant Search
Travis County Warrant Search

Williamson County Warrant Search

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

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

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

Harris County Warrant Search

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

Dallas County Warrant Search

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

Bexar County Warrant Search

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

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

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

Criminal Defense Lawyer Job Description

Lawyers, like many people, are asked all the time about what it is that they do for work. The lawyer will answer, “I practice law.” But the inevitable next question will be “what kind of law do you practice?” The person asking is usually eagerly awaiting to hear the answer. Sometimes they are not greatly impressed when they hear “criminal defense attorney.” Some people judge people who are arrested and accused of a crime. It is important that people know that an accused person is innocent until proven guilty. 

Everyone in the United States is entitled to defend themselves after being charged with a criminal offense. They may also hire an attorney. The constitution importantly provides the right to know the charges brought against them and that they must be proven in a court of law by beyond a reasonable doubt. Mere accusations should mean nothing unless they are able to be proven beyond a reasonable doubt.

The founding fathers made sure that these rights were included in the U.S. Constitution known as The Bill of Rights. This was important to the people in the colonies while they were breaking away from the idea of tyranny and England’s rule. On top of that England was attempting to highly tax colonist goods. The sugar, stamp, and the Townsend Acts. Then there was the Tea Act of 1773. 

The criminal defense attorney, once hired, has a duty to his or her client. The attorney has an ethical obligation to follow through with to the client. Each state may have a variation in their ethical rules. 

This means to zealously represent the client and to keep confidential communications a secret. The attorney leads his or her client through the legal process and keeps the client informed about the procedures and current case status. The client needs to have all the information and be allowed to make an informed decision on whether to take a plea offer or have his or her case taken to trial. 

The criminal defense lawyer is not a bad person even though he or she represents people charged with bad crimes sometimes. If our country ignored the constitution, we would be no better than a third world country with little or no laws. Some countries throw their citizens in jail for exercising their opinions. Or even worse they are beaten or killed. The legal process with its checks and balances exists for a reason. An innocent person going to prison is an unacceptable and tragic problem for the justice system. It needs to be adamantly avoided. The criminal defense attorney has an important role in the legal process and without the defense lawyer, the legal process would not be possible. 

If you need assistance with a legal issue, feel free to contact https://www.erictorberson.com for your legal need.

Perjury Definition

Black’s Law Dictionary defines perjury as the willful assertion as to a matter of fact, opinion, belief, or knowledge, made by a witness in a judicial proceeding as part of his evidence, either upon oath or in any form allowed by law to be substituted for an oath, whether such evidence is given in open court or in an affidavit, or otherwise, such assertion being material to the issue or point of inquiry and known to such witness to be false.

The Model Penal Code considers a person guilty of perjury if in any official proceeding he makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a statement previously made when the statement is material and he does not believe it to be true.

What is a Statement?

According to the definition in Texas Penal Code Chapter 37.01, a statement is any representation of fact.

What are Perjury Charges in Texas?

Penal Code 37.02 says a person commits perjury if he intends to deceive and knows of the statements meaning. He then makes a false statement under oath or swears to the truth of a statement previously made. And the statement is required or authorized to be made under oath. Or he makes a false unsworn declaration under Chapter 132 of the Civil Practice and Remedies Code.

What is an Unsworn Declaration?

An unsworn declaration dispenses with the need for a notary to stamp a signed affidavit form. It is helpful for inmates to waive service for family law matters while in jail. It also saves a person time from having to track down a notary to stamp a signature on a sworn affidavit. The declaration is enforceable under the Texas perjury statute.

Perjury Punishment

Perjury is a class A misdemeanor in Texas. The punishment is up to a year in jail and $4,000 fine. This includes pledging to act truthfully and faithfully before someone authorized to administer oaths constitutes a valid oath.

Completing a notarized affidavit or unsworn declaration and knowing any portion to be false, and swearing to its accuracy, becomes a crime. This does not include a witness giving an opinion as to the legal effect of the facts of testimony.

This means swearing directly to facts that the person knows to be false constitutes perjury.

Prosecution for inaccurate contributions and expenditure reports involving elections must be conducted under the Election Code.

What is Aggravated Perjury?

Aggravate perjury is Texas Penal Code Chapter 37.02, perjury, committed during an official proceeding and the false statement is material.

A statement is material if it could have affected the course or outcome of the official proceeding. It does not help the person testifying that he or she mistakenly believed the statement to be immaterial.

The extent of materiality is not important. Perjury may include a false statement to the facts that are collateral, remote, or circumstantially important.

Retracting Aggravated Perjury

There is a defense to aggravated perjury under Chapter 37.05. The actor must retract his or her false statement before completion of the testimony of the official proceeding. Also the retraction must be before it is manifest that the falsity of the statement would be exposed.

What is an Inconsistent Statement?

The Texas Penal Code Chapter 37.06 covers an act where a person makes statements under oath. When two of the statements cannot be true, the penal code defines that perjury or aggravated perjury has occurred. The crime may be perjury or aggravated perjury, whichever applies. The state does not need to prove which statement is actually false. Only one statement needs to be within the statute of limitations and it does not matter whether it is the true or false statement that occurs last.

Federal Perjury

This law applies when a person takes an oath before a tribunal, officer, or person in which a law of the United States authorizes an oath to be administered. The person will testify, declare, depose or certify truly, oral or written, truthfully.

A person who in any declaration, certification, verification, or statement under penalty of perjury willfully subscribes as true any material matter when he or she does not believe to be true is guilty of perjury.

The punishment for the federal crime of perjury is a maximum fine of $250,000 and not more than 5 years imprisonment.

What is Subornation of Perjury?

A person who procures another to commit perjury is guilty of subornation of perjury. The penalty for subornation of perjury is up to a $250,000 fine and a maximum of 5 years imprisonment.


The United States judicial system relies heavily on witness testimony. For obvious reasons, truthful statements by witnesses are necessary for the courts to come to just conclusions. Aggravated perjury in Texas can result in up to 10 years in prison and a maximum fine of $10,000. Federal perjury carries a maximum of 5 years imprisonment and a $250,000 fine.

Perjury in the US was adopted along with other common law from England. The English court of law “Star Chamber”, at the Royal Palace of Westminister, began punishing perjury at the end of the fifteenth century. The common law punishment could vary up to execution.

In Texas, a perjury charge may result in a more serious sentence if the perjury results in a death penalty execution. A perjury statement that results in death can be charged as murder. In some jurisdictions perjury that does not even result in death may still be sentenced up to life imprisonment for the person committing perjury.

Contact me, Eric Torberson, above or on my homepage https://www.erictorberson.com for quality assistance.

Texas Animal Cruelty Laws

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).”


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.

Texas Dangerous Dog Law

Attorney Eric Torberson Interview

There are several ways a dog can get in hot water. The law at the state level has statutes that cover Texas. Many municipalities have also made their own ordinances to punish dogs accused of scaring, attacking or biting people or other animals.

For questions or representation take a look at http://erictorberson.com/texas-animal-lawyer and contact me.

What is the Statewide Dangerous Dog Law?

The Texas Health and Safety Code contains dog attack statutes. It divides dogs bites or attacks into 2 categories: bodily injury and serious bodily injury. A bodily injury attack is usually anything that causes pain. A serious bodily attack is defined as “severe bite wounds or severe ripping and tearing of muscle that would cause a reasonably prudent person to seek treatment from a medical professional and would require hospitalization without regard to whether the person actually sought medical treatment.”

Use the contact form to purchase my ebook for a bodily injury case where your dog has not been seized click the link below. This not be as helpful for a dog case where the dog is seized and accused of serious bodily injury. An ebook will be published for serious bodily injury soon

A 3rd way a dog can be deemed dangerous, is a situation where a dog did not bite or attack anyone. The dog “commits unprovoked acts in a place other than an enclosure in which the dog was being kept and that was reasonably certain to prevent the dog from leaving the enclosure on its own and those acts cause a person to reasonably believe that the dog will attack and cause bodily injury to that person.”

What Happens After My Dog Bites Someone?

If it is a bite that causes bodily injury, the victim may decide to complain to animal control. It is not a violation against the dog unless the dog is out of an enclosure that the dog is kept. The dog bite must also not be provoked by any means whether in or out of an enclosure. Provocation is a defense for a dog who bites or attacks .

For a bite that causes serious bodily injury, a dog within its enclosure is protected. If a person is under 8 years of age and the enclosure is reasonable certain to keep to keep a child 8 or under out than the dog has not violated the statute.

A dog causing serious bodily injury to a person 8 or older is protected if that person is trespassing in the dog’s enclosure.

Also a dog is protected if causing serious bodily injury while under a police officer’s control. Or a dog is alright protecting a person from assault. A dog protecting property from theft or damage is also protected from the statute.

What is Serious Bodily Injury?

The Texas Health and Safety Code defines serious bodily injury (SBI) as severe ripping and tearing of muscle that would cause a reasonably prudent person to seek treatment from a medical professional. It would also require hospitalization, even if the person did not did not seek treatment.

This is a vague area. So what is hospitalization. Healthcare.gov defines it as inpatient, and usually requires an overnight stay. So a day trip to the hospital to get stitches would not be serious bodily injury.

It really becomes a subjective standard and the definition gets ignored unless animal control officers stay familiar with the rules and ordinances. It can be lost on dog owners who represent themselves or who hire an attorney who does not look carefully at the law.

What is the Dog Facing in a Serious Bodily Injury Hearing?

It is critical for an attorney to investigate whether a dog bite is really serious bodily injury. The dog’s fate in a hearing could be a death sentence. It is heartbreaking to lose a case and have the judge order a death sentence. Especially if the dog had never bitten a person before. Sometimes judges will error on the side of caution or appease a complaining witness by sentencing a dog to death.

If a person is trespassing in the dog’s enclosure, a serious bodily injury attack is justified. It is based on fairness to the dog’s and as well as the homeowners rights. In our society trespassing is frowned upon.

What if a Dog is Accused of Killing Someone?

In Texas the law requires a dog to be killed if he or she kills someone no matter the reason. There is no discretion in the Health and Safety Code for a dog’s life. A criminal could be murdering the dog’s owner and burning their house down, but if the dog kills the murderer, the dog SHALL be ordered destroyed. Texas law is surprisingly contradictory with regard to protection of people and property. A person can be justified in killing to protect life and property but not with a dog. I guess it will require a violent hypothetical like described above to encourage a smart lawmaker to change the law.

Why Do Cities Have Animal Ordinances if we Have State Law?

The Texas State Constitution allows municipalities of 5,000 or more to become a home-rule city. A city can create a municipal charter that allows a city to create ordinances. Many cities have animal ordinances included in their code. However “no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State.”

This is a troubling area for animals in Texas. I have read several different city ordinances that contain death sentences for dogs accused of minor actions or none at all. These death penalty ordinances run the risk of being inconsistent with state law.

The state law requiring a dog deemed dangerous for a bite causing bodily injury or scaring someone does not allow the dog to be killed. Many cities have ordinances that allow the death penalty for a dog. For instance, a city in southern Texas, Nixon, has a vicious dog ordinance allowing death for a dog that may have a propensity to attack or has a dangerous disposition in their opinion.

Killeen Texas has an ordinance allowing the police or animal control to kill an animal with fierce, dangerous or vicious propensities that has not even bitten or attacked anyone. According to the Killeen Aggressive Dog Ordinance a dog can also be ordered euthanized by a judge “when unprovoked, chases or approaches a person upon the streets, sidewalks or any public or private property in a menacing fashion or displaying an apparent attitude of attack.”

Also, a Killeen judge can order a dog deemed aggressive to be permanently removed from the city limits within 10 business days.

This would mean that all those dogs that chased me on my bicycle as a kid could be ordered to be euthanized. It is in a dogs nature to chase things. An ordinance like this directly contradicts state law which does not allow euthanasia except in death or SBI cases.

What are the Texas Dangerous Dog Requirements?

Section 822.042 lists the requirements for the owner of a dangerous dog. In no later than 30 days the owner needs to accomplish some tasks as follows:

  • Register the dangerous dog with the animal control authority.
  • Restrain the dog on a leash in a person’s control or in a secure enclosure.
  • Obtain insurance or show financial responsibility in the amount of $100,000 to cover damages for a potential attack by the dangerous dog on a person. Show the proof to the animal control authority.
  • Comply with applicable municipal and county regulations, requirements or restrictions on dangerous dogs.

If a person does not fulfill the above by the 30th day, the dog is subject to being seized and impounded at a shelter at the owner’s expense. According to the Health and Safety Code, the judge SHALL order the dog killed ELEVEN days after delivery of the dog to the shelter, or the dog’s seizure, for failure to fulfill the dangerous dog requirements.

Shall means the judge HAS to have the dog killed. For someone in poverty or renting this can be a serious problem. The dog by then won’t even know why he or she is being put to death.

How is a Dog Determined Dangerous?

The Health and Safety Code says that if a person reports a dog bite that animal control may investigate the incident. The animal control will then receive sworn statements from witnesses. At that time the AC officer will determine if a dog is dangerous. The AC officer is required to let the dog owner know in writing.

The owner once notified in writing, has 15 days to appeal the dangerous dog determination of the animal control authority to a justice, county or a municipal court. The appeal requirements are as follows:

  • File a notice of appeal to one of the courts listed above.
  • Attach a copy of the determination from the Animal Control Authority.
  • Mail a copy of the notice of appeal to the Animal Control Authority.

If the appeal of the Animal Control Authority is filed in the justice court or municipal court, the dog owner may appeal to the county court after an adverse ruling about their dog. The dog owner is then entitled to a jury trial at the county court level under Health and Safety Code 822.0424.

A jury trial is vitally important in our judicial system. Thomas Jefferson’s 1801 quote sums it up pretty well:

“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”


For a dog, to be considered dangerous, it is no small matter. It places the dog’s life in jeopardy in the future. It can unfairly result in a dogs execution at the local shelter. Many times the whole situation is based on a lie or the exaggeration of a person who is offended. It is critical that the dog owner give his or her dog a fighting chance to avoid a dangerous dog designation in court. If possible, hire someone with experience to defend your dog properly. Dogs don’t ask to be put in many of the situations we humans put them in. Dogs deserve due process.

If you need help or more information take a look at Home.

“Representative government and trial by jury are the heart and lungs of liberty.”

John Adams (1774)

Texas Drone Laws

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.

Slaughterhouse wastewater lagoon
Slaughterhouse lagoon (photo not in Texas)


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

Kruger Park Rhino relocation

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.


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.

Sending Drugs Through The Mail Penalty

Mailing drugs without a license is a federal offense. Sending drugs legally through the mail requires a license with the DEA. This is considered distribution of a controlled substance. To apply, a person or business must be of the following: manufacturers, distributors, researchers, canine handlers, analytical laboratories, importers, and exporters. Chapter 13 Title 21 U.S.C. 822 covers this registration process with the Attorney General in detail.

The registration period for list 1 chemicals (used in the manufacture of controlled substances) is for no less than one year or more than three years. Persons registered by the Attorney General may manufacture, distribute, or dispense controlled substances.

Possession of a controlled substance of list 1 chemicals has some exceptions to the requirement to register with the DEA such as the following:

  • An agent or employee acting in the course of employment for a registered manufacturer, distributor or dispenser.
  • Carrier or warehouseman possessing in the usual course of employment.
  • The ultimate user who possesses the controlled substance for his or her own use, household, or an animal owned or in the household.

To make matters more subjective, the Attorney General, by regulation may waive registration for certain manufacturers, distributors, or dispensers if it is consistent with public health and safety. Who is qualified to decide that? I don’t know the answer.

Does Registration Apply to Online Pharmacies?

Yes. Also the online pharmacy shall clearly display a declaration of compliance with Section 831 on it’s homepage. The homepage must have a hyperlink to page containing specific information about the pharmacy including address, contact information and licensing etc.

Can I get in Trouble for Shipping Edibles?

Depending on what the substance and quantity is will determine the punishment. Assuming the edibles are marijuana alone and the weight is less than 50 kilograms, the person may receive up to 5 years imprisonment and up to a $250,000 fine. The judgment shall also impose supervised release of at least 2 years in addition to imprisonment.

Yes. If caught by USPS, UPS or Fedex most likely the package will be referred to an investigator. Doing this is considered a 21 USC Section 841 Prohibited Act. This is knowingly or intentionally distributing a controlled substance.

For a person with a previous conviction accused of distribution, the punishment doubles to 10 years and $500,000 fine. The judgement shall include at least 4 years of supervised release in addition to imprisonment.


The statistics provided are not going to tell us how many shipments of drugs successfully were mailed and received at their destination. It is impossible to know how many packages successfully are mailed. The numbers only tell us what was detected and intercepted.

Shipping edibles does not have a much different position with the law than marijuana. However, shipping 50 to 99 marijuana plants regardless of the weight will increase the offense punishment to 20 years and a 1 million dollar fine.

What is the Drug Distribution Statute of Limitations?

It is 5 years. I sometimes get nervous phone calls from people worried about what they may have done illegally in the past. One which is “can I get in trouble for when I mailed marijuana a long time ago?”

The threat of prosecution decreases if a package is not detected. An investigation or surveillance will most likely take place with bigger and more frequent mailing operations. A one time small successful shipment most likely hasn’t triggered an investigation unless someone has been in contact instructing so.

The statute of limitation for “non capital” offenses is 5 years. This would apply to a shipment of marijuana. For different drugs that may involve minors or death, the limitations period may be longer. Each subsection of the law is different and needs to be read with the specific facts.

Is it a Crime for Receiving Illegal Drugs in the Mail?

Mens Rea is a latin term for guilty mind. There are 4 main recognized mental states- Intent, Knowledge, Reckless, Negligent. It is important to look at each statute in question to see if there is a mental state assigned. In Texas if a mental state is not assigned than it allows for at least a reckless mental state

It can be especially if you mailed them to yourself or it is traced to someone you know. It is possible that the package made it through the process without being detected and it is being watch under surveillance to see what you do with it. This is unlikely though if it is a small amount of marijuana.

Mental State or Mens Rea

The statute requires the mental state to be “knowingly or intentionally“. This means that it is not a strict liability crime. It requires knowledge or intent. It is important to remember this when considering your rights in the federal justice system.

  • “with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”

This may seem obvious, but at this point in time it is not wise to send drugs through the mail. It is a federal offense unless a person has the proper licensing. Maybe at a future time when all 50 states are legalized with marijuana it will be. The potential issue after legalization is taxing it before it is mailed to ensure the feds are getting their cut. But all that is on hold until the rest of the states catch up.

Can I Mail Prescription Drugs?

It is illegal to mail prescription drugs in most instances. But it is legal with the proper licensing that was mentioned above. You are not supposed to mail a loved one medication that they left at your house over the holidays. Even if you are mailing a legal prescription medication to yourself, there is no exception in the law allowing it. It would seem with our advanced society and legal system that we would have figured out a way around this. But not yet.

Controlled Substance Mail Back Program

Another exception to mailing prescription drugs is the §1317.70 Mail-back program. This allows for a unregistered “ultimate user” prescription possessor to dispose of prescription drugs by mailing them in pre addressed postage paid envelopes. The envelopes shall be spill proof and not marked as containing medication. The user shall not be required to provide any personal information when mailing the medication to a collector.

Technically it is illegal to mail someone “their” or yourself “your” prescription drugs. But should it be? Not really with a good reason. People do forget or run out of their prescription medication while away from home all the time. But this is just my opinion…

Criminal Defense Lawyer

This blog did not cover many of the other drugs, besides marijuana and prescription drugs, that may get mailed. There are many more punishments listed for the long list of illegal controlled substances that are illegally distributed by mail.

If you are facing any charges in this area please call me or contact me about your situation. http://erictorberson.com. I have very successful results for my clients. I try hard and care about my clients. Not every lawyer focuses on those qualities.

Dui vs Dwi

Dui stands for driving under the influence. Dwi is driving while intoxicated. The specific use of these terms describing a crime for a person in the United States depends on which state the driver is in. Also the driver’s age may determine the term as well.

Texas Dui and DWI

Texas uses Dui to describe a driver under 21 years of age who has any detectable amount of alcohol in their system while operating a vehicle. The Texas term DWI describes any age driver who is intoxicated.

Intoxication means “(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of the 2 or more of those substances, or any other substance into the body, or (B) having a blood alcohol concentration of .08 or more.”

Texas Dui law is much more lenient on under 21 drivers regarding punishment than Dwi law on all drivers. The zero tolerance of alcohol is still strict. But the law is more focused on the alcohol rather than the actual driving after drinking a detectable amount. It shows the legislature’s focused intent to prevent underage drinking, rather than underage drinking and driving. If this were not the case the punishment would be more severe than a class c misdemeanor. Many states allow up to .02 for minors. Eleven states have no tolerance for minor driving on alcohol.

It is true that new drivers need to focus on driving and learn safe driving skills. But there isn’t a lot of analysis on how much a detectable amount of alcohol has affected an under 21 driver. It may be a miniscule amount and yet the driver is punished regardless. Many times the officer just has the driver blow in their face and will make a decision based on that. The driver may not even be allowed to have a breath or blood test to prove their innocence.

Punishment for DUI in Texas

A minor can receive up to a $500 fine and 20-40 community service hours for a first offense Dui. A 2nd Dui can get a minor 40-60 hours of community service. With 2 previous convictions the minor is looking at a $500 to $2,000 fine and up to 6 months in jail.

State Alcohol Tolerance for Driving Minor

Alabama- .02
Alaska- zero tolerance
Arizona- zero tolerance
Arkansas- .02
California- .01
Colorado- .02
Connecticut- .02
Delaware- .02
District of Columbia- zero tolerance
Florida- .02
Georgia- .02
Hawaii- .02
Idaho- .02
Illinois- zero tolerance
Indiana- .02
Iowa- .02
Kansas- .02
Kentucky- .02
Louisiana- .02
Maine- zero tolerance
Maryland- .02
Massachusetts- .02
Michigan- .02
Minnesota- zero tolerance
Mississippi- .02
Missouri- .02
Montana- .02
Nebraska- .02
Nevada- .02
New Hampshire- .02
New Jersey- .01
New Mexico- .02
New York- .02
North Carolina- zero tolerance
North Dakota- .02
Ohio- .02
Oklahoma- .02
Oregon- zero tolerance
Pennsylvania- .02
Rhode Island- .02
South Carolina- .02
South Dakota- .02
Tennessee- .02
Texas- zero tolerance
Utah- zero tolerance
Vermont- .02
Virginia- .02
Washington- .02
West Virginia- .02
Wisconsin- zero tolerance
Wyoming- .02

Texas Dwi is More Serious Than Dui

For drivers accused of Dwi, the amount of alcohol allowed is more lenient than any detectable amount. The BAC is .08 for breath and blood tests. This understandably shows that for drivers 21 and over, the focus of legislation shifts more against drinking and driving.

The state can also try to prove their case on loss of mental and/or physical faculties of alcohol and/or drugs. This is a less tangible case to prove for person accused of dwi in Texas.

Dwi for Drugs

It is possible to be accused of a Dwi for drugs instead of only alcohol. A breath test will not be a useful tool to measure drugs in a person’s system. The person’s admission as to how much and when the drugs were taken can be very useful prosecution evidence in trial. And of course a blood test will give a reading of what is in the blood if it is tested correctly.

That does not mean that there is a clear cut proof of drug intoxication. There is not a measurement of intoxication for drugs such as .08 is used for alcohol intoxication. There are other factors and biases that get thrown in and the jury will have a difficult decision to make. The State’s expert will most likely try to render an opinion of intoxication based on experience or some sort of theory. In all honesty quantification of drugs and intoxication have not been studied with reliable data compiled.

What is a Motor Vehicle in Texas?

The Texas Penal Code defines “Motor vehicle” means a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks.

Notice the definition of motor vehicle does not include the word “motor”.

Can I get a DWI on a Bike?

In Texas you technically can get a dwi on a bicycle. It does not need to have a motor. Taking the case to trial and being convicted is another story. I definitely would fight this case all the way to a jury trial.

Can I get a Dui or Dwi Riding a Horse in Texas?

It is possible to be charged with Dwi while riding a horse in Texas. But a horse seems to be less of a device than a bike. This activity can be a more dangerous than a bicycle for all involved. So the horse riding situation might be more favorable to prosecute than a bicyclist while intoxicated. This is another case I would take to a jury trial.

What is the Maximum BAC While Driving Commercial Vehicle?

A person driving a commercial vehicle must be below .04 blood alcohol content or they are considered driving while intoxicated. A 1st conviction for driving a CMV at or over .04 BAC will suspend a license for 1 year. A 2nd conviction will suspend a CDL for life

This is not talked about much, but it would be legal to have a couple drinks and drive a CMV. That is as long as a person is under .04. This would be rare since most people driving a commercial motor vehicle are working and company policies would not allow drinking alcohol on duty.

Can I Drink and Fly an Airplane?

A person cannot drink within 8 hours of flying an aircraft. However a person can have alcohol in their system as long as it is below .04.

Why is DUI BAC in Texas No Tolerance?

After writing this blog post I am more confused than I was before. I already knew all the material but now I sit and reflect on the reasoning. It is mind boggling and probably the result of legislature pandering to the masses.

Most states allow a minor to drive up to a .02. Texas and ten others are no tolerance for alcohol in minors. That is somewhat understandable. But according to Federal Law a commercial pilot can fly a passenger plane up to a .04 BAC. How does this make sense?

A commercial truck driver can drive an 18 wheeler with a weight up to 80,000 pounds legally as long as the driver is under .04 BAC.

A minor driving a car must be 0.00 BAC. This tells me it has nothing to do with safety and everything to do with just keeping minors from consuming alcohol.

Don’t hesitate to contact me with any legal issues. I enjoy helping solve my clients problems in order to move on with a better life. It is never as bad or hopeless as it seems and things can always get better. Contact me at http://erictorberson.com and find out what the next step is. Thanks!

Protective Order Texas

Attorney Eric Torberson

A Texas Protective Order begins with an application. Under the Texas Code of Criminal Procedure Chapter 7A a victim, or parent or guardian of a victim younger than 17, who is the victim of continuous sexual abuse of a child, indecency with a child, sexual assault, aggravated sexual assault, and stalking may apply for a protective order.

A victim, or parent or guardian if the victim is younger than 18, may also apply for an application for the offenses of trafficking, continuous trafficking, and compelled prostitution.

A prosecutor may apply for a protective order for a victim under all the circumstances listed above.

Where is a Protective Order Filed?

It may be filed in district court, juvenile court with jurisdiction of a district court, statutory county court, and constitutional county court.

It can be filed in the county in which the applicant resides, where the alleged offender resides, any county where an element of alleged offense occurred, or any court with jurisdiction over a protective order under Title 4 of the Family Code involving the same parties named in the application.

Protective Order Hearing

At the hearing, where the victim must testify, the judge will determine whether there are reasonable grounds to believe the applicant is the victim of sexual assault or abuse, stalking, or trafficking. If the judge decides yes, the court shall issue a protective order that includes a statement of the required findings. Even testimony of past family violence, without a police report, may be enough to persuade the judge to sign a protective order.

Hearsay of Child Victim Admissible

A statement made by a child younger than 14 years who is a victim of continuous sexual abuse of a child, indecency with a child, sexual assault, or aggravated sexual assault is admissible as hearsay evidence in a hearing for application for a protective order.

What Can a Protective Order Make Me Do? 

Under Chapter 7A.05. CONDITIONS SPECIFIED BY ORDER. The protective order may order the alleged offender to take action that the court determines is necessary to prevent or reduce the likelihood of future harm to the applicant or a member of the applicant’s family or household; or prohibit the alleged offender from:

(A) communicating:

(i) directly or indirectly with the applicant or any member of the applicant’s family or household in a threatening or harassing manner; or

(ii) in any manner with the applicant or any member of the applicant’s family or household except through the applicant’s attorney or a person appointed by the court, if the court finds good cause for the prohibition;

(B) going to or near the residence, place of employment or business, or child-care facility or school of the applicant or any member of the applicant’s family or household;

(C) engaging in conduct directed specifically toward the applicant or any member of the applicant’s family or household, including following the person, that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass the person; and

(D) possessing a firearm, unless the alleged offender is a peace officer, as defined by Section 1.07, Penal Code, actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision.

(b) In an order under Subsection (a)(2)(B), the court shall specifically describe each prohibited location and the minimum distance from the location, if any, that the alleged offender must maintain. This subsection does not apply to an order with respect to which the court has received a request to maintain confidentiality of information revealing the locations.

(c) In a protective order, the court may suspend a license to carry a handgun issued under Section 411.177, Government Code, that is held by the alleged offender.

How Long Does a Protective Order Last?

If a period is not stated in the order, it is in effect for 2 years from the date it was signed. It could be ordered for the rest of the parties lives or any shorter amount of time. The victim, or the victim’s parent/guardian listed above, may at any time file a motion to rescind the protective order.

What is an Emergency Protective Order?

This order takes place after an arrest for an offense involving family violence or any of the offenses stated above. This order can be issued at the request of the magistrate, victim, guardian of victim, peace officer, or prosecutor. It is only available at the time of arrest for family violence or sexual assault. It is temporary and it cannot be extended.

The order will last up to 61 days and not less than 31 days. If the arrest includes use or exhibition of a deadly weapon during the commission of an assault, it will last up 91 days and not less than 61 day.

This is an optional order for a magistrate to issue unless the arrest involves serious bodily injury, or use or exhibition of a deadly weapon during the commission of an assault, in which case it is mandatory.

Can I Get the EPO Dropped?

It is possible to modify or dismiss the EPO. It is not easy and definitely requires the victims agreement and assistance. Once the EPO has been in place the State usually prefers to let the process play out out in court. By letting it expire at the statutory deadline they cover themselves in case there is further violence. This can be very inconvenient to the person having to stay away. Its especially a problem if the original victim complaint was a lie to the police or the judge that violence took place.

What is Violation of a Protective Order?

By Family Violence

A person violates a protective order or similar order when the person commits family violence while the following are in place: an act warned about in bond conditions, a protective order, emergency protective order, or family case orders. The crime is complete when the person intentionally or knowingly commits the acts of family violence, trafficking, sexual assault, aggravated sexual assault or stalking.

An offense generally is a Class A misdemeanor. It is a 3rd degree felony if the defendant:

  • Has previously been convicted of this section or other bond conditions in Penal Code Ch 25 (2 or more times).
  • Has previously been convicted of this section AND other bond conditions in Penal Code Ch 25.
  • Has violated the protective order by committing an assault or stalking.

By Communication or Threat

A person violates a protective order or similar order when the person communicates or threatens while the following are in place :an act warned about in bond conditions, a protective order, emergency protective order, or family case orders. The crime is complete when the person intentionally or knowingly commits the acts of communicating directly, communicating a threat, or communicates in any manner with the protected individual except through the attorney.

An offense generally is a Class A misdemeanor. It is a 3rd degree felony if the defendant:

  • Has previously been convicted of this section or other bond conditions in Penal Code Ch 25 (2 or more times).
  • Has previously been convicted of this section AND other bond conditions in Penal Code Ch 25.
  • Has violated the protective order by committing an assault or stalking.

Other Violation of Protective Order Crimes

  • Disobeys Geographic Restrictions.
  • Possesses a Firearm.
  • Harms, Threatens or Interferes with Animal.
  • Removes, Attempts to Remove, or Tampers with GPS.

Arson, Criminal Mischief and Graffiti

These offenses are lined out in Texas Penal Code 25.071, Violation of a Protective Order Preventing Offense Caused by Bias or Prejudice. They relate to committing an offense, communication or threat, and disobeying geographic restriction. The penalties are similar to that listed above.

Repeated Violation of Court Orders

A person who violates orders 2 or more times under Chapter 25 during a 12 month period faces a 3rd degree felony punishable by a possible 2-10 years prison and up to a $10,000 fine.

Texas Protective Order Defense Lawyer

For a violation of protective order charge, it is highly advisable that you call me. I deal with these type of serious cases. My clients are very happy because I get them good results. Look at my home page for more information. https://www.erictorberson.com.

Possession of Drug Paraphernalia

Drug Paraphernalia

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

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

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

What is Considered Drug Paraphernalia in Texas?

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

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

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

Driver License Suspension for Drug Paraphernalia

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


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

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

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

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

What are the Miranda Rights?

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

What is the Miranda Rights Script?

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

What Does Miranda Rights Law Mean?

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

What is Custodial Interrogation?

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

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

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

Richard Nixon was Against the Miranda Decision

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

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

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

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

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

Do Police Have to Read Miranda Rights for DUI?

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

Miranda Rights Texas

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

Do I have to Talk to the Police?

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

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

How To Beat a Felony Drug Charge

Drug Possession in

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

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

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

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

Texas Search and Seizure Laws

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

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

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

Are You required To Show ID To Police?

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

Can a Drug Dog Smell My Car?

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

What is Probable Cause To Search a Vehicle?

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

Texas Search Warrant

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

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

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

The Drugs Need To Be Tested

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

What Happens if I have a Prescription?

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

Drug Conviction and Federal Financial Student Aid

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

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

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

Pretrial Drug Programs

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

If Charges Are Dismissed Do You Have a Criminal Record?

Eric Torberson Law Office

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

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

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

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

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

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

How to Get My Criminal Record in Texas

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

Can I Expunge a Deceased Relatives Criminal Record?

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

What is the Process For an Expunction?

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

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

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

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

(A) full name;

(B) sex;

(C) race;

(D) date of birth;

(E) driver’s license number; and

(F) social security number;

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

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

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

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

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

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

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

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

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

What Happens When Someone Violates an Expunction Order?


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.