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Use of Juvenile Priors

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One of the questions I’m asked most frequently is whether a particular juvenile prior adjudication can be used to enhance a new adult criminal charge and bar probation eligibility.

Under Penal Code §12.42, felony offenses can result in enhanced punishments for those previously convicted of felony offenses. When looking at a prior juvenile adjudication, certain adjudications are counted as “convictions” for purposes of PC§12.42.

For purposes of Subsections (a), (b), (c)(1), and (e), an adjudication by a juvenile court under Section 54.03, Family Code, that a child engaged in delinquent conduct on or after January 1, 1996, constituting a felony offense for which the child is committed to the Texas Youth Commission [now Texas Juvenile Justice Department] under Section 54.04(d)(2), (d)(3), or (m), Family Code, or Section 54.05(f), Family Code, is a final felony conviction.

The important distinction is that the adjudication is only treated as a conviction for purposes of certain subsections of 12.42; not for all purposes. So while punishment may be enhanced by a prior juvenile adjudication, that adjudication does not bar consideration for probation under CCP Art. 42.12.

Because §12.42 applies only to first, second, and third degree felonies, juvenile prior adjudications cannot be used to enhance punishment for state jail felony offenses.  State jail enhancements are governed by §§ 12.35 and 12.425, neither of which defines prior juvenile adjudications as convictions.

When dealing with first, second, and third degree felonies, a prior juvenile adjudication for felony conduct which resulted in confinement in TYC or TJJD is treated as a conviction for enhancing the punishment range in the current charge. Because §12.42(f) limits the use of juvenile adjudications to sections (a), (b), and (c)(1), juvenile adjudications do not count towards habitual status which is governed by §12.42(d).


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Lawyers and Social Media

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Attorneys have the option to use social media to enhance their careers and businesses. But each attorney should keep in mind a few precautions before sharing anything. Failure to take these seriously can cost lawyers their jobs, or worse, their bar licenses.
http://www.corpcounsel.com/id=1202738703474/Question-No-1-for-the-Lawyer-on-Social-Media-What-Not-to-Share#ixzz3nUfBnHZR

In her Corporate Counsel column, Julie Langdon cautions attorneys:

  1. Be Wary of Self Promotion
  2. Keep Your Client’s Information Confidential
  3. Know Your Social Media Discovery Limits
  4. Do Not Have Communications with Judicial Officers
  5. And…Think Before You Post

While written in a more general nature, these rules apply in Texas just the same. Part of my recent San Angelo presentation was Lawyers and Social Media: Is it really advertising?

social_media_strategy111In Texas, Rules 7.02 and 7.04 govern public media advertising, and yes, social media is a form of electronic advertising, especially where it is open or available to the public (think public law firm page on Facebook, public twitter posts attributed to “firm”). At a minimum, advertising must reflect the lawyer or law firm responsible and the principle office. Under Rule 7.07, lawyers are required to file a copy of advertising (including websites) with the advertising review committee of the State Bar. Generally, advertising via “tombstone” information is not required to be filed. Also, materials that are purely academic, editorial and educational in nature are not required to be filed with the review committee.

From the State Bar, Advertising Rules, Interpretive Comment 17:

The Internet and Similar Services Including Home Pages. (March 1996, revised May 2003, Revised 2010)
Part VII of the Texas Disciplinary Rules of Professional Conduct applies to information disseminated digitally via the Internet. A digitally transmitted message that addresses the availability of a Texas lawyer’s services is a communication subject to Rule 7.02, and when published to the Internet, constitutes an advertisement in the public media.

Websites

A website on the Internet that describes a lawyer, law firm or legal services rendered by them is an advertisement in the public media. For the purposes of Part VII of the TDRPC, “website” means a single or multiple page file, posted on a computer server, which describes a lawyer or law firm’s practice or qualifications, to which public access is provided through publication of a uniform resource locator (URL).

Of the pages of a website subject to these rules, many may be accessible without use of the site’s own navigational tools. Of those pages, for the purpose of this Interpretative Comment, the “intended initial access page” is the page of the file on which navigational tools are displayed or, in the case that navigational tools are displayed on several pages, the page which provides the most comprehensive index capability on the site. The intended initial access page of a lawyer or law firm’s website shall include:

1) the name of the lawyer or law firm responsible for the content of the site

2) if areas of law are advertised or claims of special competence are made on the intended initial access page or elsewhere on the site, a conspicuously displayed disclaimer regarding such claims in the language prescribed at Rule 7.04(b); and

3) the geographic location (city or town) in which the lawyer or law firm’s principal office is located. Publication of a link to a separate page bearing the required disclaimer or information required by Rule 7.04(b) does not satisfy this requirement.

Social Media Sites

Landing pages such as those on Facebook, Twitter, LinkedIn, etc. where the landing page is generally available to the public are advertisements. Where access is limited to existing clients and personal friends, filing with the Advertising Review Department is not required.

Blogs

Blogs or status updates considered to be educational or informational in nature are not required to be filed with the Advertising Review Department. However, attorneys should be careful to ensure that such postings do not meet the definition of an advertisement subject to the filing requirements.

So, yes, social media sites and blogs can be advertising and in most cases are advertising. Remember all advertising must be filed with the Advertising Review Committee and approved.

Corporate Counsel hits the nail on the head: be wary of self promotion – this is the very advertising the Texas Bar cautions against in the rules. Posting “wins” or settlements can be misleading to the public and create a false or unjustified expectation for future clients. We know that every case is different, and your advertising must acknowledge and state such. So be careful with that self promotion advertising!

Her additional points are well taken. Know that you likely cannot seek discovery by “friending” or otherwise attempting to retrieve information from opposing parties or witnesses, unless of course you disclose the purpose of your “friend” request. Know that you must keep client information confidential absent your client’s consent to disclose his information. Know that “friending” and communicating with judges and court staff could be ex parte communications which are prohibited. And always, know that you should stop and think before posting anything as nothing is truly private when posted on any social media or internet site.


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DNA Errors: Big Deal or Not?

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Have you seen the news? The FBI has announced errors in its database which is used across the nation and in Texas. In two prior blog posts (on separate sites), I addressed this issue.
August 7, Just How Accurate is DNA?, HCCLA.org (with memo downloads)
September 18, FBI DNA Calculation Errors, HCCLAtv.com

Today, Fox 26 News visited with me to get a perspective on just how big this problem is.
As I told Andrea Watkins, Fox26 News, the problem will be large simply because each case will have to be identified and then reviewed to see what impact the DNA results may have had on a particular plea-bargain or jury verdict. Ultimately, this will amount to thousands of cases locally as the errors have existed and been perpetuated since 1999.

The problem is that errors in the statistical database could have caused an inflated reliance on a match. For example, instead of the probability of a particular DNA sample matching a suspect or defendant being 1 in 1 billion, it could be that it is only a 1 in 100 chance of belonging to the same person. This certainly changes the landscape and statistical chance of the DNA being left by the same person.

This problem is compounded in “mixture” cases. A mixture case is where two or more persons have contributed to the sample. We often see swabs collected from crime scenes where the analysis reveals the DNA of two individual people. The statistical errors, once corrected, can cause a scientific result which once included a suspect to now exclude that same person because of the lack of strength in the probability of the result matching. (I hope that makes sense. Essentially, science sets limits. If the probability falls below the lower limit, it is no longer considered a scientific match; so if the recalculation falls below, it is no longer considered reliable.)

Of course correcting each DNA statistical calculation will not ultimately help every defendant or suspect. But i will change the scientific reliability in some cases; therefore, each case will have to be analyzed to see whether or not it is affected.

This is a huge undertaking. It will take time. And, it will certainly add to the backlog in crime labs and the overall turn-around on testing old as well as new evidence.

In any event, I’m staying on top of this and will continue to report what I can.


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Can My Lawyer Give Information About My Case to My Momma?

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Confidentiality

Lawyers owe a duty of confidentiality to their clients. Lawyers cannot ordinarily reveal confidential information to anyone, absent the client’s consent. Sometimes momma (or daddy or wife or brother or anyone else) will call the lawyer to “see what is happening” or “see what is going to happen.” Often this is simply because the family member or friend is genuinely concerned about the legal matter and what is happening or about to happen. Sometimes it is because the family member or friend is just being nosey. In either event, lawyers owe a duty to protect confidential information and cannot share that information with family or friends unless the client has specifically authorized the lawyer to do so.

What is “confidential information”?

Under the Texas Disciplinary Rules of Professional Conduct, Rule 1.05 states: Confidential information includes both privileged and unprivileged information. Privileged information is that which is protected by the Rules of Evidence and is predicated upon the principle of an attorney-client relationship. Unprivileged information means all information relating to a client or furnished by a client, other than privileged information, acquired during the course of representation of the client.

A lawyer may not reveal confidential information of a client or former client, except as provided within the rules. The rules provide for some exceptions to this general rule:

  • when the client authorizes disclosure or consents,
  • when disclosure is necessary to further the client’s representation,
  • when the lawyer is defending against claims made by the client against the lawyer,
  • to prevent a client from committing a fraudulent act,
  • to comply with a lawful court order or other law,
  • to rectify consequences of client’s criminal act, or
  • to prove services rendered in collecting fee.

When momma calls or asks about the case or what is happening, the best course of action is for the lawyer to tell momma she represents her child and because of the attorney-client privilege she is not able to discuss the case with her. If the client insists on having the lawyer talk to momma or update momma, the lawyer should get that in writing from the client. But first, the lawyer should explain to client that the rules are there to protect the client and the lawyer can best protect the client by not divulging information to momma.

There will be legitimate reasons that a lawyer may freely talk to momma or others. For example, if momma is a witness, the lawyer can certainly interview momma about the events and circumstances surrounding what she witnessed. But in that case, the lawyer is gathering information rather than revealing information.

The bottom line is that information received from the client is protected by attorney-client privilege and  the lawyer may not reveal that information (unless one of the exceptions applies). Additionally, information the lawyer learns from any other source as a result of the representation is confidential, even though it may not be privileged, and may not be revealed.


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Why One Lawyer Shouldn’t Represent Co-Defendants

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Conflict Question Often Asked: Can I represent co-defendants?

The short answer: maybe you can, but generally you should not. The Texas Disciplinary Rules of Professional Conduct address this and other issues attorneys face.

Rule 1.06: A lawyer shall not represent opposing parties and a lawyer shall not represent a person if the representation of that person involves a substantially related matter in which that person’s interest are materially and directly adverse to the interests of another client.

While co-defendant representation is not always prohibited by the rules, Comment 3 provides that the potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one co-defendant.

Informed consent – Rule 1.06 comments: A client under some circumstances may consent to representation notwithstanding a conflict or potential conflict. However, as indicated in paragraph (c)(l), when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved should not ask for such agreement or provide representation on the basis of the client’s consent.

Comment 8 recommends that the disclosure of the conflict of interest and the consent be in writing. It would be prudent, the rules states, for the lawyer to provide potential dual clients with at least a written summary of the considerations disclosed.

Out for one, out for all – Rule 1.06: A lawyer who has represented multiple parties in a matter shall not thereafter represent any of such parties in a dispute among the parties arising out of the matter, unless prior consent is obtained from all such parties to the dispute.

Knowing the rules above, it is clear as to why it is seldom a good idea to have the same lawyer represent more than one person in a criminal matter. Where two or more people are charged with acting together to commit a crime, they are referred to as co-defendants. Co-defendants will often have different alleged roles in the offense. This means they often have differing levels of culpability and mitigation. It is difficult for one lawyer to advise both when their interests are not always aligned. The classic example of conflict exists where the government seeks to “trade” one defendant for the other: the government will offer a great plea-bargain to one in exchange for that person testifying against the other whom they see as more culpable or dangerous. In that instance, does the lawyer tell client A to take the deal and testify against client B, even though that will harm his other client? Does the lawyer tell client A not to take the deal, risk greater punishment, and save client B?

Lawyers owe a duty of loyalty to each and every client (and former client). Thus, the lawyer cannot advise one client to harm another or refrain from harming another. Each is entitled to diligent and conflict free representation.

You can also view my HCCLA guest blog on the subject!


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To Plea or Not to Plea?

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As a takeoff from my presentation today at Texas Criminal Defense Lawyers Association’s Defending Juveniles, I wanted to share an outline of how to approach advising your juvenile client to plea or not to plea.

What is a Plea?

In this context, a “plea” is similar to a plea-bargain in a criminal case. A “plea” is to enter a plea or “true” (or no contest) or “not true.” A plea of “not true” results in proceeding forward toward a trial by court or jury. A plea of “true” is an admission and judicial confession to the delinquent conduct in question as alleged in the petition. A plea of “true” can be made with an agreed recommendation from the prosecutor or without.

A plea of “true” made to the court is an adjudication hearing. Because adjudication hearings cannot be waived, it is the plea of “true” coupled with the juvenile’s confession (or agreement to stipulated facts) that gives the juvenile court an evidentiary basis upon which to find the juvenile has engaged in delinquent conduct and thus becomes an expedited adjudication hearing.

To Plea or Not To Plea, Who Decides?

Ultimately, it is always the client’s decision whether or not to enter a plea of true. Texas Disciplinary Rules of Professional Conduct Rule 1.02 states a lawyer shall abide by a client’s decisions in a criminal case (and by extension juvenile cases), after consulting with the lawyer, as to a plea to be entered, whether to waive a jury trial, and whether the client will testify.

Though the plea to be entered and the waiver of a jury trial are each left to the client, the rule requires that client’s decision to come after consultation with the lawyer. Failure to provide adequate information for the client to make a decision about whether to have a jury trial or whether to accept a plea offer can result in an attorney being sanctioned by the State Bar. It is imperative that you not only convey offers (if any) and discuss whether to proceed to trial but also consult with the client the consequences of each decision. The client must understand the trial process and its pros and cons along with the evidence that is likely to be admitted.

Should I Advise My Client to Plead True?

First, you must know your case, your client, your prosecutor, your judge, and your options. Sometimes the question to plead true is more easily made.

Know Your Case

Sounds simple, but attorneys must investigate their client’s case before advising the client on how to proceed. At a minimum, this requires (1) reviewing the petition for alleged facts and potential defects, (2) discussing the allegation with your client, and (3) reviewing the prosecutor’s file, including evidence and other items provided through discovery. Often, knowing your case goes beyond these basics and will include an independent investigation into the facts and circumstances of the alleged offense. Where appropriate, seek an appointed investigator to assist in your investigation, subpoena records, and interview witnesses.

While reviewing the prosecutor’s file (offense report and other discovery) is a good place to start, it is rarely the end of your inquiry into the case. Once you have reviewed the offense report, statements and all other materials in the prosecution file, you should discuss the items and reports with your client. Are there other witnesses you should send an investigator to interview? Do you need to subpoena dispatch records, MDT’s, blood records, CPS records, medical records, audio and video recordings, social media records, etc? Do you need an expert to evaluate some forensic conclusion?

Essentially, you should prepare your case for trial. Review the elements of the alleged offense and determine whether or not the prosecutor can prove each and every element. Know which witnesses can be used to prove each element. Know whether or not those witnesses are impeachable. Know whether or not evidence will be available for trial.

Know Your Client

Not only must you discuss the offense allegations and evidence with your client, but you must also know your client and his history: court history as well as school and mental histories. Has your client been involved in the juvenile court system before? Has your client been a discipline problem at school? Did your client behave in detention while this case has been pending? Does your client skip school regularly? What kind of grades does your client make in school? Does your client see a therapist or psychiatrist? Has your client been hospitalized for mental issues? Does your client have a drug problem? Has CPS been involved in your client’s life? The answers to these questions and so many more can paint the picture of your client. A picture that can either help or hurt as assess whether or not a plea is appropriate.

Talk to your client and his parents. Get a history independent from that provided by probation. Depending on your client’s history, you may also need to speak with teachers, counselors, and others.

Know Your Prosecutor

When advising your client whether to plea or not, you must know your adversary. Is he reasonable? Can he try cases? Is he going to make a reasonable offer, or is there wiggle room in his offer to plea? Is he willing to offer deferred prosecution? Is he willing to dismiss one or more counts for a plea on another count? Is the judge likely to undercut his recommendation? Is his recommendation tied to “office policy” and therefore non-negotiable? Is he going to attempt to fix a weak case if you point out problems with the prosecution? Will he be reassigned before your case concludes?

Knowing your prosecutor is likely the least important part of this discussion, but it is still something you need to consider when advising your client on whether or not to plea, especially if that plea is with an agreed recommendation from the prosecutor.

Know Your Judge

Knowing your judge is just as important as knowing your case and your client. Knowing your judge is important in understanding whether an agreement with the prosecutor is a good deal for your client. Would the judge grant your client a deferred prosecution over the prosecutor’s objection? Would the judge allow your client to remain in the home on disposition despite the fact that the prosecutor wants a local residential commitment? Is it likely that the judge would find no disposition necessary? Is the judge likely to grant a motion to suppress? How likely is your judge to grant or deny certification requested by the prosecutor? How likely is the judge to follow probation officer recommendations? Will the judge request or require a urine test prior to considering a request for deferred prosecution?

If you don’t know these answers, it’s time to find out before you can fully and properly advise your client.

Know Your Options

In this context, outside of the option to plea or proceed to trial, you must also know your options, especially for disposition. Generally speaking, your options are: (1) no disposition, (2) probation, or (3) confinement. Probation can be in the child’s home or in a residential facility. Confinement can mean locally or within TJJD.

The court has available a myriad of options and programs within the system (juvenile probation) but is not tied to only those within the system.

Does your client’s family possess the resources to seek non-county resources such as therapy or drug treatment outside of the probation department? Does your client qualify for mental health or drug programs? When will your client be eligible to have his record sealed under each available scenario? Does probation have other resources that may be better tailored to your client’s need then those proposed by the prosecutor? Does your client’s family have the ability to supervise your client in an informal program (diversion) or will your client require more stringent rules? Would entering a plea on a lesser-included offense better serve your client’s interests? Will your client be required to register as a sex offender? Will a plea result in a suspended driving privilege?

All this and more must be known or explored by the lawyer so that they lawyer can competently and appropriately advise the client. Only the informed client can make the decision to plea or not to plea.


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Sept 1, Day of New Laws

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This September 1, the criminal justice system finds itself amidst change. Below are some of the highlights of our new legislation.

Theft

Through House Bill 1396, Texas passed legislation that changes the “value ladder” for many property crimes. Property crimes such as theft, mischief, graffiti, frauds and other various offenses use the “value” of the property to set the level of crime and thus the punishment. In the most common example, before September 1, 2015, a class C (fine only offense) consisted of theft of property under $50. Now, effective September 1, 2015, adjusting for inflation, a class C consists of theft of property under $100.

Thanks to Judge Ryan Patrick, here is a recap of the change in the “value ladder”:

Level Old New (as of 9/1/15)
Class C Misd1 <$50 <$100
Class B Misd $50 – $500 $100 – $750
Class A Misd $500 – $1,500 $750 – $2,500
State Jail Felony $1,500 – $20,000 $2,500 – $30,000
3rd Degree Felony $20,000 – $100,000 $30,000 – $150,000
2nd Degree Felony $100,000 – $200,000 $150,000 – $300,000
1st Degree Felony >$200,000 >$300,000

Non-Disclosure

Non-Disclosure is a section of the law that allows certain criminal history records to be non-public. This process (making a record non-public) serves to remove certain records from your public criminal history. Even though removed from public view, this process leaves the criminal record in tact and available for law enforcement and other entities such as regulatory agencies, schools, banks, and hospitals, to name just a few.

Effective September 1, non-disclosure of certain low level misdemeanor deferred adjudication sentences becomes more automatic. When a person meets the criteria for non-disclosure, the court must grant it. Under the old law, the judge had the discretion to grant or deny your application for non-disclosure. This new legislation found in Senate Bill 1902, sets forth the differences between automatic and discretionary non-disclosure. It also extends non-disclosure to certain misdemeanor convictions where a person successfully completed community supervision (probation). Non-disclosure laws do not apply to assaults, DWI, weapons, family violence, public indecency, and other more serious offenses. It is meant to allow the first time low-level offender to move on with his or her life without the general public viewing that mistake or transgression.

With the new changes and expansion of situation that can be non-disclosed, anyone with a minor criminal history should consult a lawyer about whether or not they may receive the benefit of a non-disclosure.

Searches

House Bill 1396 mandates that police get a warrant to access and search cellular telephones found on or near a person under arrest. This legislative change follows the United States Supreme Court’s recent ruling in Riley v. California where the Court stated a search of these devices, today, implicates very sensitive privacy interests because these personal devices contain personal and sensitive information.

Additionally, House Bill 324 sets forth something many of us would have assumed to be common sense: a search warrant is required for body cavity searches during a traffic stop. So no more roadside cavity searches, absent a warrant supported by probable cause.

Juveniles

In a throwback to the way we used to do things, Senate Bill 888 makes juvenile certification decisions (for juveniles to stand trial as adults) immediately appealable rather than only after final conviction as an adult. Truancy was decriminalized (House Bill 2398) and taken out of the juvenile courts for students. And Senate Bill 107 amends the education code to eliminate automatic zero tolerances for expulsions, giving the school officials discretion through the creation of a campus behavior coordinator.

Other Changes

Of course there are dozens more changes to definitions of criminal conduct. “Disabled individual” has been expanded to include a broader class of citizens, giving prosecutors the ability to charge offenders with greater levels of offenses for assaults against disabled persons, the elderly, and children. Drugs, such as synthetic marijuanas are now classified and identified for prosecution. Handguns now follow “open carry” provisions as well as concealed carry provisions. We also have a new offense for “revenge porn” and “peeping Toms”. Revenge porn targets those who share or make public photos or video that was otherwise intended to be private. There are also new trial priorities for offenses where the alleged victim is younger than 14 years of age; these cases will be given priority over other criminal trials.

For convenience, the legislature even gave the ability to pay fines and fees roadside with a debit or credit card!

So many changes, but these are a few of the highlights.


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Prosecutor Accountability?

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Texas leads the nation in convicting innocent people. Appalling! This is not a lead to be proud of.

According to the National Registry of Exonerations, Texas led 2013 in convicting innocent people, and over the years, Texas has always remained in the top four states for convicting innocent people.

Convictions of innocent people can be linked to a variety of sources from junk “scientific” evidence to poor eyewitness identification. And while not always a contributing factor, prosecutorial misconduct certainly adds to the problem.

In New York, legislation has been proposed to create a State Commission on Prosecutorial Conduct. The idea is similar to State Commissions across the nation which deal with judicial conduct. The commission becomes an investigatory body able to review complaints against prosecutors and determine disciplinary measures where appropriate.

Prosecutors have the ability and unfettered discretion to deprive citizens of their liberty. This is a tremendous power which historically goes unchecked. Currently, prosecutors enjoy immunity for most of their actions; they cannot be successfully sued for even egregious acts of misconduct. They are shielded by appellate courts who find misconduct but excuse it as “harmless” error. They are subject to great abuses of power because there is no effective oversight.

New York is trying to change that. Perhaps it is time for Texas to take a true lead and setup our own Commission on Prosecutorial Conduct, a system of checks and balances that might hold prosecutors liable for this misdeeds when they make their own rules.

With abusive prosecutors like Ken Anderson, Charles Sebesta, and Kelly Siegler, Texas needs to step up and find accountability in a system of justice that no longer undermines public trust.

Prosecutorial abuses, like any other abuse, cost the taxpayer hundreds of thousands of dollars. Prosecutorial abuses undermine the fairness and integrity of our system of justice. Prosecutorial abuses must stop.


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Debt to Society

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How long must someone be punished for a criminal act? When is that person’s debt to society ever forgiven?

In Texas, it’s a lifetime debt.chains

Convictions for criminal acts (from a class B possession of marijuana to murder) will always remain a part of a person’s criminal record. Criminal records are available online and forever. This essentially means that it will forever be held against that person.

The only time records are deleted is through expunction. To qualify for an expunction, the State must have dismissed your case (without any other convictions related to that criminal episode) or a judge or jury must have found you not guilty after a trial. Outside of that, it will always remain on your record. If you qualify for an expunction, you should seek one as soon as possible! Expunction is a civil process requesting records be deleted. There are filing fees associated with most expunctions, but it is well worth the expense to have your record cleaned up. All too often we see law enforcement or prosecutors hold a prior arrest (even without a conviction) against someone.

In some cases, where a person receives deferred adjudication, the judge may grant an order making the record non-public. This means law enforcement and government agencies will still see your record, but the general public may not. Not all offenses qualify and some require waiting periods before you can request non-public disclosure.

This is an ever changing area of law. Just this year, we saw the legislature trying to clarify and broaden the process yet several of the bills which the legislature passed were vetoed by the governor. However, the non-disclosure statute was amended to say in certain non-violent misdemeanor cases, the court shall grant the order of non-disclosure. This minor change indicates that judges must grant the non-disclosure where all requirements are met. The former law stated the court “may” grant the non-disclosure in the interest of justice. In another minor change, the legislature created the possibility that some minor first offender probation convictions will be treated similar to deferred adjudication and possibly made non-public.

Compare Texas with other states, and you can see that we have done little to help those who have paid their debt to society move forward. For example, Utah has instituted a program for low-level non-violent homeless people to clear their records of minor convictions which keep them homeless. With various petty offenses like camping in public and public intoxication, it is rather difficult for these folks to gain employment or housing. Instead of perpetuating the homeless cycle, Utah has taken steps to reduce homelessness by giving these folks a fresh start.

Florida maintains a first offender program that allows first time non-violent felony offenders a chance at diversion. If supervision is successfully completed and rehabilitation shown, the offender can have his case dismissed and expunged. While the Harris County District Attorney’s Office will consider a request for pre-trial intervention (much like what Florida does as a course of action across the board), it is extremely rare that such a request will be granted.

And we wonder why we have high incarceration rates and recidivism rates. Branded for life, we give non-violent first offenders little incentive to stay clean and out of trouble. Once branded with a criminal record, they will have difficulty obtaining employment and even renting apartments.

It’s time to re-think our lifetime debt to society.


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The Defender Summer 2015

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  Just when I think I run out of steam, another Defender energizes me!

View and download this issue here

We have an amazingly talented group of writers who regularly assist me by providing research and writing on current criminal justice topics. And we have an amazing designer who brings the pages to life through pictures. 

How this became such a passion for me I will never understand. But, it has! I still enjoy the privilege of serving as editor for this fantastic publication.


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