These guidelines are provided as general information that
may be of some use to you. To advance to an item of interest, simply
click on that item.
The Role of the Defense Attorney
How to Choose Your Attorney
The Constitutional Right to Counsel
Jail Releases: 24/7
The Criminal Process: Warrantless Arrests
The Criminal Process: The Hobby Rule
Arrests on Warrants: New Charges
Arrests on Warrants: Probation Warrants
Arrests on Warrants: Bond Forfeitures
Arrests on Warrants: Bond Forfeitures Civil Suits
The System: Felonies
The System: Misdemeanors
The System: Probation
The System: Drug Diversion Court
The System: Expunctions
The System: Sealing of Record
The Role of the Defense Attorney
The right to counsel is the critical foundation of our criminal justice system. Without the proper knowledge and background, the defense is ill-equipped to put forth procedural or substantive rights which could be lost if not asserted. What the competent lawyer finds obvious and necessary may be hidden, complex, or bewildering to the under trained litigator.
Implicit in the concept of a right to counsel is the notion of effective representation. As the United States Court said in Powell v. Alabama,(1932) counsel must provide effective aid in the preparation and trial of the case. The text of the Sixth Amendment itself suggests as much. The Amendment requires not merely the provision of counsel to the accused, but, assistance which is to be for ‘his defense’.
Prior to a criminal trial a lawyer will undertake to examine and investigate the facts surrounding the arrest and/or allegations made by witnesses or government agents. He or she will review the charges and the laws implicated therein. Only then can counsel offer an objective opinion as to what course of action should be followed. In the course of the actual trial on the merits, the role of counsel is to address inconsistencies in the state’s case, prepare, and present a strategic defense, and summarize law and facts on the client’s behalf.
Lawyers, sometimes called attorneys, are also known as counselors. In reality, we wear many hats – confidant, advisor, liaison, peacemaker and friend. Although it is imperative to have a strong command of the law and the respect of your colleagues, it is also extremely important to remember that each case is tied to a unique person who deserves respect and your best effort.
How to Choose Your Attorney
you elect to employ me as counsel, or one of my colleagues, you should
seek answers to the following questions.
1) Do I trust this person?
2) Do I believe they have the legal ability to handle the matter at
3) Does this person limit himself or herself to the practice of Criminal
4) What is their reputation in the community? In the Courthouse?
5) Is the fee competitive with other attorneys with similar experience?
6) If there is the slightest chance that your case will go to trial,
does this person have trial experience?
7) Does this attorney have sufficient and trained personnel in his or
her office to assist in your defense?
Although it may take you a few hours to obtain these answers, it could be
time well spent. Getting a second opinion for a medical procedure, or driving
more than one car before making a purchase, is almost routinely practiced.
The important decision concerning protection of your freedom should be no different.
The Constitutional Right to Counsel
The first ten amendments to the United States Constitution
make up the Bill of Rights. The first eight enunciate the great liberties
of a democracy: freedom of speech, press, religion and assembly; protection
for the privacy of the home; assurance against double jeopardy and compulsory
self incrimination; the right to trial by jury; freedom from cruel and unusual
punishment; and the right to counsel.
It was not until the seminal case
of Gideon v. Wainright in 1963 that an indigent was guaranteed the right
to counsel in felony prosecutions. The case was much celebrated -- no less
than Henry Fonda played the drifter Clarence Carl Gideon in the 1980 T.V.
movie “Gideon’s Trumpet.” Gideon,
a convicted felon, was denied counsel for his Burglary charge. His petition
for relief to the Supreme Court was handwritten. After his conviction without
counsel was reversed, Gideon was retried for the burglary. With counsel provided,
he was acquitted, vindicating his claim and the general proposition that
counsel is necessary for a fair trial.
But Gideon did not delineate the scope of the counsel doctrine, i.e., would
it be limited to special classes of offenders, or offenses? Somewhat surprisingly
it took until 1972 in Argersinger v. Hamlin, for the Supreme Court to embrace
the spirit of Gideon by holding that even in misdemeanor prosecutions the
right of an indigent defendant to the assistance of counsel is protected
by the Sixth and Fourteenth Amendments.
The constitutional rights to counsel
at one’s arrest
and/or interrogation are derived from the Fifth and Sixth Amendments to
the United States Constitution, respectively. In both instances the right
is designed to prevent one from making statements or taking actions against
his or her penal interests. To violate either doctrine in this context
is to make any testimony or evidence thereafter obtained inadmissible at
the defendant’s trial. This is a part of what
is known as the “exclusionary rule,” which has presented the
U.S. Supreme Court with some of its most perplexing constitutional questions.
Unlike the right to counsel in other
situations, the right to counsel at arrest or interrogation does not
necessarily provide representation in the physical form. Instead, by invoking
the right to counsel, a suspect forces his accusers to address the investigation
and prosecution of the case through the suspect’s
attorney. Here, it is the failure to allow for invoking the right to counsel
which denies the defendant effective representation at possibly the most
important point where legal advice would help.
Austin is the DWI capital of Texas, if not the entire country.
There are more DWI arrests in Austin then in Dallas or Houston.
The Austin Police Department has obtained several grants, both State and
Federal, which fund the local DWI task force - a special unit of APD which
concentrates in the detection and prosecution of these offenses. They
regularly patrol the areas around Sixth Street, The Warehouse District,
South Congress, Mopac, IH-35, Ben White and HWY 183 North.
The consequences of a DWI arrest are serious, and a
conviction for the offenses can be devastating, - both personally and
financially. A recent article in the Austin American Statesman estimated
that the cost of a first DWI arrest and conviction can be as high as $15,000.00.
After arrest this includes bail, towing, and legal fees. If convicted, the
expenses can include probation, fine, counseling, occupational driver’s license,
increased insurance, and a three year annual government surcharge of $1000.00 -
$2000.00 to maintain your driving privileges. In addition, you could be required
to perform community service or spend time in jail.
Many of my colleagues advertise and would insist that you not
take a breath test when offered by the arresting officer. I do not agree that one
answer fits all circumstances. For instance, if you have (truly) had only one or
two drinks, the intoxylizer machine could be your best friend - testing under the
legal limit would be an extremely important factor in your defense. That said, I
am not a big fan or believer in the accuracy of the State’s machine. If you have
had more than two regular drinks over a two to three hour period than you might be
wise to decline the test. Some of that depends on your size, and factors such as
food intake and metabolism. Additionally, the breath tests are usually administered
about an hour after you have been stopped. Depending on when you had your last drink
this could skew the results in the State’s favor.
Blood tests are far more accurate than breath tests. This could
work for you or against you depending on the results. It is not your choice whether
to give a breath or blood sample - it is the officers. Also, beware that with a blood
test they can look for other intoxicants, i.e.marijuana, prescription drugs, and harder
controlled substances. If you can get a licensed nurse (or phlebotomist) to the jail
within one hour of your arrest, you can actually have them preserve a sample; although,
I’ve never seen that done. Recently, the Austin Police Department has been seeking, and
obtaining warrants to draw blood in cases where the suspect refuses to give a sample.
This practice will be seriously tested by myself and many of my colleagues. Given the
current political pressures on the judiciary to (over) react to the immense social problem
of Driving While Intoxicated, I am not optimistic about Court intervention to stop the practice.
There is no universal advise to give you for dealing with the police in
a roadside alcohol related encounter. If you are a gymnast, acrobat or ballerina, you may
be able to pass the States’ made - to - fail field sobriety tests. For the rest of us, taking
these tests can be a big mistake. Personally, I suffer from numerous sport related injuries
(2 torn ACL’s) and couldn’t pass these tests on my best day. (Please never tell an officer that
you “couldn’t pass these tests if I was sober”). There are so many factors here I cannot list
them all, but here are a few : Are you tired: wearing the wrong shoes, i.e. flip flops, crocs,
or high heels (doing the tests barefoot is generally a mistake); is the terrain level and free
of debris; is it cold; or hot; are you the nervous type? In many cases it is best to refuse to
do these tests and take your chances in Court with a well trained advocate.
One of the tests that is routinely used by the State is called the Horizontal
Gaze Nystagmous test. This is a test used almost exclusively by law enforcement for the detection
of intoxicated drivers. In my opinion ( and many many experts), it is based on faulty science,
and poorly conducted research. The test consists of having an officer pass an object, like a pen,
across your field of vision, while he or she attempts to observe the side - to - side (horizontal)
movement of your pupil. The test results are generally not recorded on the arrest video. Failing
this test is not good for your defense. Personally, I would not take the test. There are numerous
factors that could effect the results, including passing cars (optikinetic effect), tiredness, recent
head injuries, neurological problem, natural nystagmus (2-3% of the population while looking straight
ahead, and no data on the percent of the population with a natural nystagmus while tracking an object).
The cost of an expert to refute a failed HGN test can be few thousand dollars, however, it is rarely necessary.
In almost every DWI case there is a video recording of the events leading up to an
arrest. The cameras are designed to come on automatically when the officer’s overhead (or in the grill) lights
are activated. This tape is usually available to counsel in the month following the arrest. The tape is the
most objective evidence in a DWI prosecution. Remember to always take the high road, be polite, and do not talk
too much. Exhibiting common sense goes a long way in helping convince a Jury you were not intoxicated.
This is an alternative to receiving a sentence from the Court, or Jury for a second or subsequent DWI charge
that occurs within two (2) years of the initial charge. The terms or conditions are more intensive than a regular
DWI second probation, however, the program can be completed in one (1) year, and there is no jail time to serve,
or community service to perform. After an attorney has evaluated the case, and it is determined that the case will
not be tried or reduced, this is a good option.
The DWI cases cannot involve victims (i.e. from accidents), or be connected to another pending case (i.e. possession
of contraband). The applicant cannot have a significant, or violent criminal history.
Participants accepted into the program are assessed a one time $500.00 program fee. In addition, participants will
be assessed a co-payment for treatment based on ability to pay. The program lasts for a minimum of twelve (12) months,
1) Outpatient group counseling three (3) times a week, for three (3) to six (6) months.
2) Individual counseling every two (2) weeks.
3) Six (6) months aftercare.
4) Judicial Oversight.
5) Case management by probation officer.
6) Alcohol/drug testing.
7) Misc. programs as needed.
ALR AND THE ADMINISTRATIVE LICENCE REVOCATION HEARING
This is a separate hearing/ procedure to challenge the driver licence suspension
that comes with a breath/blood test failure or refusal. You must make a request for this hearing within
fifteen(15) days after your arrest. You can do this by following the directions on the notice you
receive when you are released from jail. If you hire an attorney prior to the fifteenth day after
your arrest, he or she can make the request on your behalf. If you do not request the hearing in a
timely manner, your driving privilege will be automatically suspended on the fortieth day after your
arrest. For first time offenders the suspension period is 90 days for a sample failure and 180 days
for a sample refusal. The suspensions are longer for repeat offenders. In either case, with some
qualifications, you can obtain an essential needs driver license, also called an Occupational Driver
License, to conduct your important affairs.
Jail Releases: 24/7
In the evenings and weekends there are attorneys on call to assist you in securing the
release of your friend or loved one.
In Travis County, there are four ways to get a Defendant out of jail. These
1. Personal Bond. Almost every
person arrested in Travis County is interviewed by Pre Trial Services for
consideration of a personal bond. If the Defendant does not have an extensive
criminal history, the bond amount is not too high and the offense charged
is not too serious, and the defendant is not on probation, the Defendant
might qualify for a personal bond. Other factors include how long the Defendant
has lived in Travis County and the impression he or she makes on the bond
officer who does the interview. If the charge is Assault, Pretrial Services
almost always requires the alleged victim to sign a statement indicating
that he or she is not afraid of the Defendant, and is not opposed to his/her
release from jail.
If the Defendant is allowed a personal bond through
Pre Trial Services, no attorney or bail bondsman is required for the Defendant’s
release. However, an attorney can speed up the process considerably. Generally,
the Defendant will be released from two to four hours after the personal
bond is posted. Quite often, Pretrial Services, and ultimately, the judge,
will impose conditions for the release of the Defendant, such as a drug
or alcohol assessment, counseling, staying away from the victim (assault
cases), supervision or an ignition interlock device (second or subsequent
DWIs). There is a $20 fee paid to the couinty for each personal bond granted
- more if the case is a DWI second or subsequent and an ignition interlock
It is important to note that the person released is responsible to follow up
on his or her court date, which is stated on the bond. Failure to do so could
result in a bond forfeiture and a warrant being issued for the accused. Additionally,
the Defendant will be responsible to the county for the actual amount of the
bond. Thirty days after the entry of a bond forfeiture, the county normally
files a civil lawsuit against the Defendant to recover the face value of the
bond plus court costs and filing fees.
Of course, once counsel is hired, the attorney will make all necessary appearances
and inform the client when his appearance is necessary.
In some cases, Pretrial Services will deny personal
bond unless an attorney becomes involved in the case. Typically, this happens when the Defendant’s
residence is in question, he lives out of the county, when the charge is especially serious, when
the bond amount is over $10,000.00, when the Defendant is already out on a bond, when the Defendant
has a lengthy criminal history, or his personal information cannot be verified.
In other instances, such as when multiple charges
are pending, when the Defendant is already on probation or parole, or when
an attorney is attempting to do a “walk-through” (see below),
Pretrial Services will simply run a criminal history check on the Defendant
and make no recommendation on the bond.
When Pretrial Services does not make a recommendation
or denies a personal bond, the attorney still can approach a judge/magistrate
and plead the client’s
case for a personal bond.
2. Cash Deposit Bond. Travis is one of only two counties in Texas that allow attorneys to post cash deposit (percentage) bonds. These types of bonds are usually used in more serious cases or in bond forfeiture cases. In reality, the cash deposit bond is a personal bond that is partially collateralized. As a general rule, the attorney is required to post 10 percent of the total bond amount, although from time to time the percentage will be 15 or even 20 percent. Only attorneys are allowed to post these types of bonds. In many cases, fees collected for the release above 10 percent of the bond amount will be deducted from the retainer/legal fee for the case itself.
3. Surety Bond. Surety bonds are usually posted by bail bond companies licensed to do business in Travis County. Under a surety bond, the Defendant, as principal, and the bondsman as guarantor, contract with the county to either have the Defendant show up for court or, if the client does not timely appear, to pay the county the full amount of the bond. In some instances, such as high bond amounts, or if the Defendant has a history of not showing up in court, the bondsman will require collateral, a promissory note or a third-party guarantor to back up the bond, and to protect the bondsman from a forfeiture.
4. Cash Bond. To post this type of bond, a money order or cashier’s check for the exact amount is required. Despite the name, Travis County no longer accepts cash. You can either have an attorney post the bond (and get the Defendant to fill out the cash bond form) or you can take the money order to the Bonding Desk at the Blackwell/Thurman Criminal Justice Center. The jail staff will have the Defendant sign the proper forms. It is faster to do this through an attorney, however there is a charge for such a service (slightly higher if the Defendant is housed at Del Valle).
If you post the cash bond yourself, there is no additional charge other than the $15 service fee collected by the Sheriff’s Office on all surety or cash bonds. After the case is resolved, the money is returned to the Defendant. It is important to note that the Treasurer’s Office is required by state law to return the money to the Defendant, no matter who posts the cash. The Defendant’s interest in the money can be legally assigned to the person who posts the cash or to an attorney as part of a fee arrangement. The Treasurer’s office takes a nominal amount of the proceeds to process the transaction of returning the funds.
Giving a statement to the police or other investigating law enforcement agency is almost always discouraged by defense attorneys. There are several reasons for this, the chief among them being that the state must prove the allegations against the Accused. The Defendant has no obligation to prove that he is innocent. It is hard to look good when you are denying allegations, or have to answer difficult or uncomfortable questions on the spot. If the Defendant gives a statement, his words, however innocent at the time, can and will be used against him later, especially if the accused makes a second statement, and any detail(s) of the statements are inconsistent. This becomes especially critical if the Defendant is considering testifying in his own defense. It is almost always better to save your statement for your attorney and/or the witness stand.
Before making a decision about giving a statement, always obtain the advice of an attorney. Do not make a statement without your attorney present.You may not make a friend, or may immediately be arrested for the perception that you are a/the guilty party, but you will not complicate your situation by saying the wrong thing. Once you invoke your right to counsel, all questioning should cease, (at least legally).
The Criminal Process
Warrantless Arrests: Approximately 90 percent
of all arrests made in Travis County are warrantless, that is, a peace officer
determines that probable cause exists to arrest a Defendant based on his own
observations or on observations related to him by another person. When a person
is detained/arrested under these circumstances, he or she is usually taken
to the Travis County Jail Booking Desk, where the Defendant is held until formal
charges are filed and bail is set. For information about the charges, status
of the Defendant and/or bond amounts, call Central Booking at (512) 854-9889.
Most charges are filed soon after the arrest, and the Defendant
is taken before a magistrate to be informed of the charges against him,
the amount of his bond, the right to remain silent and the right to counsel, appointed if necessary.
On occasion, the police will delay the filing of a charge, which effectively prevents the individual from getting out of jail. Although the U.S. Supreme Court has ruled that the police can
hold an individual for up to 72 hours without formally charging him, the general
rule in Travis County is that the jail will release a Defendant if charges
are not filed within 48 hours, 24 hours for lesser misdemeanors.
The Hobby Rule: Unfortunately, this avenue of escape from the Travis County metal motel is no longer available since our county went to a 24 hour magistration system.
Arrests on Warrants
1. New Charges: Although some new criminal cases make their way to a judge for issuance of a warrant, the vast majority of arrests on warrants are for bond forfeitures or probation revocations. However, on occasion, law enforcement agencies will get a case where a warrantless arrest is not possible. In many instances, such as sexual assault, embezzlement, assaults where the Defendant has left the scene before the police arrive, or drug distribution cases, the investigating agency must marshall enough evidence to convince a judge that an offense has occurred. Under these circumstances, the agency will generate an affidavit for a warrant of arrest and detention, present the paperwork to a judge, and secure issuance of a warrant for the Defendant.
In many cases, if the Defendant believes a warrant might be in the works, our office will run regular warrant checks. Oftentimes, we can arrange for the Defendant to turn himself in. This can save the client a significant amount of jail time, not to mention the advantages of not having to worry about being arrested in the middle of the night, in front of family or friends, at work, or having a vehicle impounded after being stopped for a traffic violation.
This usually comes about by checking with the various law enforcement agencies, or by contacting the officer or detail who is getting the warrant, arranging bond paperwork in advance, then turning the Defendant in to the jail to be processed and released.
2. Probation Warrants: If the Defendant is on misdemeanor probation and fails to comply with his probation terms, e.g. commits another offense, has a positive UA for drugs or alcohol, misses probation meetings, etc., the Community Supervision and Corrections Department (Probation Department) may issue a violation notice, which then goes to the County Attorney’s Office for a Motion to Revoke Probation. (If the Defendant is on a Deferred Adjudication probation, a Motion to Proceed to an Adjudication of Guilt will be filed.) As a general rule, the judge will set a bond when the warrant is issued or, in some cases, the judge will issue a summons to appear before the Court.
It is an unwritten rule that an attorney attempting to secure the release of a Defendant charged with a probation violation must go to the judge who put the Defendant on probation. In many probation cases, if the allegations in the Violation Notice are not too serious, or if the Defendant doesn’t have multiple prior motions to revoke, the judge will allow his release on a cash deposit bond. In a few instances, if the Defendant has not yet been arrested, the judge might recall the warrant and have a summons issued instead.
If the Defendant knows beforehand that a probation warrant is about to be issued, a “walk-through” may be arranged. In these cases, the attorney would have the bond paperwork completed and signed by the judge in advance, allowing the bond to be posted when the Defendant turns himself in. This shortens the amount of time the Defendant spends in jail. A court date is set soon thereafter.
In District Court (felony) probation cases, the warrant is generally issued without a bond. That means that an attorney must approach the judge who has jurisdiction over the case to ask that a bond amount be set and to request that the judge approve a bond. The judge is not required, by law, to set a bond on probation arrests, unless the Defendant is on a Deferred Adjudication probation. Once again, if the Defendant knows a warrant is to be issued, it is possible, in certain cases, to get a bond set and approved to allow the Defendant to do a walk-through.
3. Bond Forfeitures: If the Defendant fails to go to County Court on a Class A or B misdemeanor, the judge usually forfeits the bond, increases the amount of the bond and issues a warrant for the Defendant’s arrest. Typically, the judge also will order that only a cash or surety bond may be posted. (See sections on bonds.) If the Defendant is arrested during the day, there is often a chance that the judge will allow the posting of a cash security bond if the Defendant does not have a history of bond forfeitures or a lengthy criminal history. However, the attorney must go to the judge of the court where the bond forfeiture occurred. If the arrest occurs at night, the only way to get the Defendant out of jail is to have a bond company or attorney post a surety bond, or to have a friend or relative post the entire bond in cash (money orders or cashiers checks only).
If a felony Defendant fails to attend court, the District Attorney could file a felony Bail Jumping charge. This is unlikely where only one court date is missed and the Defendant through counsel quickly gets his case back on the docket in good standing. Bail jumping (Tx. Penal Code, Sec. 38.10) is a third-degree felony (two to 10 years in prison, and/or a $10,000 fine). It is not a difficult case for the state to prove if the Defendant abandons a felony case for a long period of time.
Typically, in felony bond forfeiture cases, the warrant is issued without a bond amount set. As a general rule, the Defendant will have to get an attorney to talk to the judge who has jurisdiction over the case and ask him or her, first, to set a bond amount and, second, to sign a bond to post for the Defendant’s release.
4. Bond Forfeiture Civil Suits: Defendants who forfeit their bonds not only face a warrant and (usually) at least some time in jail, they also face a civil suit to recover the amount of the bond forfeited. As a general rule, the County Attorney’s Office will file a civil suit against the Defendant (and surety) 45 days after the bond forfeiture is entered.
A civil suit can be avoided if the bond forfeiture is set aside within 30 days of its issuance. However, if the forfeiture is not set aside, the County Attorney’s Office will file the civil suit and start the clock ticking for settlement of the suit. Typically, the fees for settling a civil bond forfeiture lawsuit are the costs of filing the suit, the State's attorney fees, and, in most cases, 5 percent per month of the amount of the bond. These fees are in addition to the cost of hiring your own attorney to handle the settlement.
A criminal case, either a misdemeanor or a felony, is resolved by a dismissal of the charges, an entry of a plea of guilty or no contest, or a verdict (of not guilty or guilty) after the Defendant has plead not guilty and proceeded to a trial of the case by the court or jury. A jury must reach a unanimous verdict (12 of 12 in a felony, or 6 of 6 in a misdemeanor) or the case can be retried at a later date. This is often referred to as a ‘hung jury’.
1. Felonies: In Texas, felonies, the most serious of charges, are broken down into five different categories: capital murder, first degree felony, second degree felony, third degree felony and state jail felony, sometimes called a fourth degree felony.
Clearly, Capital Murder is the most serious charge a Defendant can face, since it carries the potential for a sentence of death or life in prison. This charge is reserved for specific fact situations enumerated by statute, such as Murder of a child under the age of 6, Murder of more than one person, Murder during the commission of other felony offenses, etc.
First degree felonies carry a sentence of five years to 99 years, or life in prison, and/or a $10,000 fine. First degree offenses include Aggravated Assault on a Peace Officer, Aggravated Sexual Assault of a Child, Murder, Possession of more than 200 grams of certain Controlled Substance, and Aggravated Kidnapping. The maximum term of probation on first, second and third degree felonies is 10 years. In addition, in certain categories of offenses, such as Aggravated Robberies, and Aggravated Assaults, only a jury - and not a judge - can grant probation for the Defendant. In some sexual offenses involving children, even a jury cannot give probation.
A conviction for certain aggravated offenses also means that the Defendant will not be eligible for release on parole until he has served one-half of his prison sentence. In other cases, the Defendant can become eligible for release on parole when the time served, plus credits, equals one-quarter of the original sentence.
Second degree felonies, such as Burglary of a Habitation, Sexual Assault of a Child, Intoxication Manslaughter, Aggravated Assault, etc., carry a possible term of two years to 20 years in the penitentiary, and a fine up to $10,000.
Third degree felonies, such as Burglary of a Building, Indecency with a Child by Exposure, Assault causing Serious Bodily Injury, Failure to Register as a Sex Offender, and third or subsequent DWI’s carry a term of two to 10 years, and a maximum fine of $5,000.
State jail felonies include offenses such as Possession of a small amount (less than one gram) of certain Controlled Substances, Interference with Child Custody and Unauthorized Use of a Motor Vehicle, have a maximum term of two years in a state jail facility, and a maximum fine of up to $10,000.
The District Court system has rules that are more rigidly enforced than in the misdemeanor courts. Because the stakes are so much higher, (death penalty, prison time, long probations), the proceedings are more formal. Punctuality, appearance and respect for the court are a must.
2. Misdemeanors: In Texas, misdemeanor offenses are broken down into two systems: the “higher charges,” Class A and Class B, and the lower, Class C offenses.
Class A misdemeanor offenses, which are heard in the County Courts-at-Law, have a maximum sentence of up to one year in county jail and a fine not to exceed $4,000. Class A offenses include Assaults with Bodily Injury or Assault involving Family Violence, second DWIs, Criminal Mischief or Theft of Property with a value of $500 to $1,500, and Burglary of a Vehicle.
Class B misdemeanors, which carry a penalty of up to 180 days in jail and/or a fine of up to $2,000, include Criminal Mischief or Theft of $50 to $500, first DWI's, Driving While License Suspended, etc. Class B misdemeanors are also heard in County Courts-at-Law.
Class C misdemeanors carry a penalty of fine only and include traffic; offenses, Public Intoxication, Minors in Possession of Alcohol, Disorderly Conduct offenses such as Fighting, Unreasonable Noise, etc. These cases are heard either in Municipal Court (if the offense was alleged to have occurred in the city limits) or in the Justice of the Peace courts (if the offense was alleged to have occurred outside the city limits).
Whether the Defendant is charged with a misdemeanor or a felony, many first-time offenders in Travis County can expect to be offered
probation. The maximum term of probation for felonies is 10 years.
The maximum term of probation for Class A and B misdemeanor is two years. Because Class C misdemeanors are fine only offenses, there is no probation, although a Defendant may enter into a deferred prosecution or deferred disposition agreement, which generally call for the individual to remain trouble free, without supervision, from 90 days to one year.
There also are two types of probation offered in the State of Texas: regular probation, which entails the entry of a judgment of guilt against the defendant, and Deferred Adjudication, which means that the judgment of guilt is deferred and the Defendant is placed on probation. Under a Deferred Adjudication, if the Defendant successfully completes his term of probation, no conviction is entered on his or her record. In these types of cases, the Defendant can say that he was not convicted of the offense. However, there still will be a public record of his arrest and of the proceedings against him, including the fact that he was placed on probation.
Other ways to dispose of misdemeanor cases include Pre-Trial Diversion, a program run by the County Attorney’s Office, or Deferred Disposition or Deferred Prosecution. Under these arrangements, the Defendant usually admits the bad act and does some combination of paying a fee, undergoing counseling, taking an educational class, performing community service, and staying out of trouble for a certain period of time. At the end of the deferral period, the case is closed. In most of these instances the records of the arrest and prosecution can be expunged. (See Expunctions below)
4. Drug Diversion Court AKA The S.H.O.R.T. Program Drug Court
S.H.O.R.T. is the acronym for a System of Healthy Options for Release and Treatment. This is an excellent alternative to being prosecuted for those who qualify. The program provides the user (not dealers) with treatment and counseling, not the stigma of a felony drug prosecution.
S.H.O.R.T. puts into action the long overdue response that drug addiction is a disease that should be treated, not punished.
The mission statement of S.H.O.R.T. reads:
The mission of the Travis County SHORT Program is to slow the revolving prison door for drug offenders, reduce drug use and criminality and promote effective treatment programs in which the client is treated with dignity rather than treated as a criminal.
The treatment consists of three fairly intensive phases. Each participant is assigned a Primary Counselor to assist with successful completion of each phase. There are an array of treatment approaches (e.g. acudetox, cognitive skills training, support groups, employment and vacation referrals) available for addressing specific needs. The program can be completed in one (1) year. You do not need a lawyer to get into S.H.O.R.T.- so no legal fees, although there is a $1,00000 fee due upon acceptance. For more information contact the S.H.O.R.T. program at 854-4200
If the charge does not result in a conviction being entered against the Defendant, and the Defendant is not placed on probation (as is the case with a Deferred Adjudication), then he/she may be eligible (after a waiting period which is determined on a case by case basis) to have the entire record of the arrest and prosecution expunged, or removed.
This procedure requires the filing of a Civil petition in District Court requesting that the judge order all agencies with records pertaining to the arrest to remove, destroy or obliterate all such entries. The Petitioner must meet certain requirements, such as not having been convicted of a felony within five years of the date of the alleged offense, and not being convicted of any other charge arising out of the criminal incident. The process takes up to six months to complete to ensure that each agency has properly expunged their records. The benefits of expunction include:
1) Being able to legally deny that you were arrested on the specific charge
2) Peace of mind
3) Setting the record straight
5) Avoiding having to admit on forms, bonds and applications any reference
to your case.
6. Sealing of Record:
In addition to expunctions, a Defendant who was placed on Deferred Adjudication probation may be eligible to have his arrest and court records sealed from the public. This relatively new law allows a judge to order public entities to withhold information about a Defendant under certain circumstances, although it does allow law enforcement agencies to retrieve records on such charges/offenses. One nice provision of the new law is that you can prevent private web sites from disseminating your information once you have your record sealed and notify them of the same. Certain offenses, for example murder, aggravated kidnaping, sexual assaults, assault with family violence, injury to a child, and stalking, are excluded from the sealing statue. Additionally, there is a two year waiting period from the last day of probation or incarceration for most misdemeanors and a similar five year waiting period for felonies. Some misdemeanors have no waiting period, such as Possession of Marijuana, Theft, Driving with Licence Expired and Criminal Trespass.