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 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 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

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.

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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.

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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

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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

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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

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-

The FDA approved the termination of the recall on May 5, 2020-

More information is to come.

Click here for BAC Chart.

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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

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.

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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.

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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.

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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

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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.

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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 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 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

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.

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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.

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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 and contact him for more information.

What to do After a Car Accident That’s Not Your Fault

The first thing is your safety. Try to get yourself and others to a safe place out of traffic if possible. If there are any life-saving steps that need to take place for anyone, do so as needed. Next someone needs to call 911 for medical help if anyone is hurt.

What to do After a Car Accident

The police will arrive and decide what emergency procedures and personnel are needed. The officers will also view the scene and determine how the accident happened and decide who is probably at fault. They will draw up an accident report. If necessary an accident reconstruction investigation may be required at a later time with traffic rerouted around the accident scene while the reconstruction of the circumstances takes place.

It is important not to admit guilt. There may have been a head injury or concussion which can cause confusion. The situation may be complicated requiring a careful analysis regarding the true person at fault. It is important to exchange information with the other person in the accident. The police will likely want that information and will assist with exchanging it between the parties. 

Once insurance information is known a person should contact their insurance about the situation as well as contacting the other driver’s insurance. If the other driver DOES NOT have insurance a person will want to inform their own insurance company this fact. 

No-Fault States

Here is a list of no-fault states:

  •       Florida
  •       Hawaii
  •       Kansas
  •       Kentucky
  •       Massachusetts
  •       Michigan
  •       Minnesota
  •       New Jersey
  •       New York
  •       North Dakota
  •       Pennsylvania
  •       Utah

No fault states require a person’s own personal injury protection insurance to cover their the accident up to a certain amount of money regardless of who was at fault in the accident. A person may step out of the no-fault scenario of the accident was sufficiently serious. Factors such as a broken bone, disfigurement and high enough medical bills allow a person to sue the at-fault driver in some states. 

At-Fault States

The person or person’s insurance company in ‘fault’ states is responsible for damages. Each driver’s insurance is responsible according to the degree of fault of their insured driver. The responsibility includes property, injury, lost wages and pain and suffering monetary damages. 

Depending on the state different rules apply to the percentage a person is allowed to recover. For instance, Texas drivers are only allowed to recover if they are not 51 percent or more at fault. If a party is 50 percent at fault or less they can recover damages. Texas, for instance,  is a ‘modified comparative negligence’ state. 

Accident in Rental Car

Most insurance companies offer car rental insurance. But a person needs to check and make sure that they included it with their policy. It is not very expensive and costs about the same as the cost of a rental car for a day.  If an accident occurs the same basics apply. Make sure everyone is safe and call 911 for an ambulance if there are injuries.  Exchange information with the other party. Give each other names, addresses, insurance information and drivers license numbers.  Call your car rental company by the number in the glove compartment or on the rental agreement. Inform them on what has happened and get instruction on how to proceed. Then call your insurance company if you are using them to insure your rental vehicle.  The car rental companies like for the insured to have $500 or less as a deductible. If that is not the case they may require the driver to purchase additional insurance. Let your insurance company know if this is the case.It is important to read the car insurance policies to see if the driver is required to pay any deductible regardless who is at fault.   If you purchased ‘Loss Damage Waiver’ and you cause damage to the rental vehicle, you are protected against being held accountable for ‘loss of use’ fees for the time the rental car is being repaired. A credit card may cover this as well. It will not cover risky or reckless behavior such as off-roading.  

What to do When Someone Hits Your Parked Car

The first thing you want to do is check for witnesses or security cameras. In some states a person is required to leave their information. Many people will obviously not leave their information. In Texas it is a crime to leave the scene of an accident without leaving information.

The next thing to do is call the police. Some will not come to the scene for minor damage. They may require you to fill out an accident report form and drop it off at the police station with photos. If they run across any leads then they might file a case. You will want to take pictures and make a copy of the form in order to forward to the your insurance company.

If you do not find out who damaged the vehicle you will most likely need to pay your deductible out of pocket and have a shop fix the repair. 

It is risky to let a person talk you into not informing your insurance company after an accident. The person may be lying or change their mind to not paying you for the accident. 

How to File an Insurance Claim

Call your insurance company and inquire about any time limits to file an insurance claim. Once you begin the process of explaining your situation to your insurance company, the insurance company will assign you a claims adjuster who will evaluate your claim. 

An adjuster will determine how much the insurance company will spend on repairs. If you have questions or disagree you can ask for a report. The report should have an explanation of how the damage assessment was determined. You will then find a repair shop who will begin repairs. 

If the car is considered a total loss the claim specialist will not allow the vehicle to be repaired. A total loss would mean that a repair would cost more than the vehicle’s value. 

A total loss is where you will want to have GAP insurance if you owe more than the car is worth. That means that insurance will only pay you what the car is worth and you will owe the finance company the amount over the insurance check amount. 

It may be helpful to know that filing an at fault claim is sometimes a bad idea. You are likely to see a rate increase over several years. This can amount to paying more than the actual accident cost and a higher rate from now on. 

The insurance company will probably have repair shops that they recommend. You are not required to use them but they will likely have better guarantees. If you choose not to go to one of those listed, you may have to get more than one estimate.  This is to prove to the insurance company that they are not paying inflated rates for the particular automotive work. 

How Much Does Insurance go up After an Accident?

If the accident is not your fault than insurance rates should not change.

If a driver is at fault he or she can expect a 22 to 76 percent increase in premiums. This is dependent on which state the driver is insured in. The stricter the state regulations the higher the premiums will increase.

Can I Fix My Own car With Insurance Money?

The vehicle has a lien you will probably be required to take it to an approved shop. The lienholder will want guaranteed workmanship in case the loan payer defaults. The care may be repossessed and need to be resold. The vehicle will need to be taken to a shop and repaired and the insurance company will pay the repair shop directly. 

If the check is made out to you and the lienholder do not commit forgery by signing the lienholders name in an attempt to cash out the check. 

When To Get An Attorney For a Car Accident

If you are injured in an accident, it is best to immediately seek legal advice. What happens immediately after an accident can affect the outcome in a major way. 

An attorney will want you to seek medical attention to document all injuries that may have been the result of the accident. The attorney will want to order the accident  report.

If the attorney discovers that the person calling is at fault the attorney will most likely not take the case. The at-fault driver’s insurance company will most likely be defending that driver. 

The driver seeking legal counsel will be evaluated for injuries and instructed to go to treatment. The property and bodily injury damages will be summarized and compiled into a report to be sent to the insurance adjuster. Included in the report will be the medical bills. The treatments will need to completed in order to thoroughly evaluate the case value. 

If the case approaches the statute of limitations time limit the attorney may need to file a lawsuit in order to preserve the case. If the statute of limitations expires, the insurance company will offer $0 to settle the case. 

What is the Average Car Accident Settlement time?

Assuming a person has a lawyer for this question, the average time will be several months. It is more likely to settle after the discovery period is over and depositions are over with. If the liability is clear, the case will most likely be ready to settle. If the offer is too low, then a lawsuit is filed and the case will proceed to trial. This can drag a case out 2 to 3 years until trial. This is assuming a suitable offer is not made prior to trial and the client agrees to it.

Medical bills and liens need to be paid and settled before the driver can collect the settlement. 

Call or visit to get the help you need with your case. 

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.

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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. 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)

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.

Jail Release and Criminal Process

What is Jail Release?

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

What is an Arrest Warrant?

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

What is a Waiver of Magistrate?

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

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

How Much is Bail?

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

What is Bail Jumping?

Penal Code Sect. 38.10 Bail Jumping and Failure to Appear

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

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

What is a Personal Bond?

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

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