Category: law

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

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

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

Texas Dwi Non Disclosure

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

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

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

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

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

More Texas Non-Disclosure Eligibility Information

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

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

What is Invasive Visual Recording?

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

What are some Invasive Visual Recording Definitions?

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

What is the criminal penalty for Invasive Visual Recording?

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

Criminal Defense Attorney for Invasive Visual Recording charges

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

Texas Video Recording Laws

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

Changing a Prescription

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

How Severely is Prescription Tampering Defined?

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

What is a Forged Prescription Penalty?

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

Crime Levels and Punishment For Forging Prescriptions

Sec. 481.129. OFFENSE: FRAUD

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(A) a prescription form; or

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

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

Other Prescription Fraud Charges

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

Drug Schedules

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

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

What is Notice of Criminal Trespass Texas?

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

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

“Notice” means:

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

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

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

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

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

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

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

(a)  100 feet apart on forest land;  or

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

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

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

CHAPTER 30. BURGLARY AND CRIMINAL TRESPASS

Sec. 30.01.  DEFINITIONS.  In this chapter:

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

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

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

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

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

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

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

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

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

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

(b)  For purposes of this section:

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

(2)  “Notice” means:

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

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

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

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

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

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

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

(a)  100 feet apart on forest land;  or

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

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

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

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

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

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

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

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

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

(A)  a chemical manufacturing facility;

(B)  a refinery;

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

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

(E)  a natural gas transmission compressor station;

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

(G)  a telecommunications central switching office;

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

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

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

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

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

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

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

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

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

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

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

(d)  An offense under this section is:

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

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

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

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

(3)  a Class A misdemeanor if:

(A)  the offense is committed:

(i)  in a habitation or a shelter center;

(ii)  on a Superfund site; or

(iii)  on or in a critical infrastructure facility;

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

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

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

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

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

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

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

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

(2)  a person who was:

(A)  an employee or agent of:

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

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

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

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

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

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

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

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

(3)  a person who was:

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

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

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

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

(2)  the person was carrying:

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

(B)  a handgun:

(i)  in a concealed manner; or

(ii)  in a shoulder or belt holster.

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

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

(i)  This section does not apply if:

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

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

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

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

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

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

(c)  In this section:

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

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

(3)  “Written communication” means:

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

(B)  a sign posted on the property that:

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

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

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

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

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

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

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

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

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

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

(c)  In this section:

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

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

(3)  “Written communication” means:

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

(B)  a sign posted on the property that:

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

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

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

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

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

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

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

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

Will Dismissed Charges Affect Employment?

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

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

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

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

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

How Long Do Arrests Stay On Your Record?

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

If Charges Are Dismissed Do You Have a Criminal Record?

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

Jobs You Cannot Get With a Criminal Record

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

How a Domestic Violence Charge Ruined My Life

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

How To Get a Misdemeanor Expunged in Texas

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

How To Expunge a Dismissed Case

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

Texas Expungement Cost After Acquittal

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

Eligibility For Clemency and Pardon in Texas

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

How to Get My Criminal Record in Texas

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

Texas Background Check Laws

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

Will I lose My Drivers License With DUI or DWI?

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

Texas Drivers License Status

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

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

Occupational License Texas

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

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

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

Bodily Injury Penal Code

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

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

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

Texas Assault Causes Bodily Injury Family Member Levels

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

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

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

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

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

Assault on a Family Member or Non Family Member

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

What is a Family Violence?

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

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

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

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

How Much Jail Time for Assault Causing Bodily Harm?

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

Best Texas Criminal Lawyer for Assault​

While looking for a defense lawyer or for instance the best criminal defense attorney Georgetown Tx, give us a call. It takes experience, skill, and a strong desire to win. I have all three qualities for my clients.

What is a Household Member?​

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

What Makes My Assault Case a 3rd Degree Felony?

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

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

What Makes My Assault Case a 2nd Degree Felony?

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