Bond Reductions
Defenses
Drug Cases
Federal Cases
Felonies
Financial Crimes
Sentencing Options
Misdemeanors
Bond Reductions
In my experience judges grant most bond reduction motions. Even when judges deny bond reductions defendants are free to file subsequent motions for bond reduction. Having an attorney familiar with the presiding judge is a benefit for defendants seeking a bond reduction because judges have a substantial amount of latitude in determining what criteria to use. Therefore hiring an attorney who understands what the presiding judges’ priorities are is important.
Amount of Bond
Bond is to secure a defendant’s appearance at trial and may not be used as a punishment. Bond is typically set higher in cases with high minimum and maximum punishment ranges. Other factors include whether or not a defendant has shown up for court in the past, ties to the community, whether the offense is the type that threatens safety of the community if repeated, and the defendant’s ability to pay. In my experience, the factor that varies the most from judge to judge is to what extent the strength of the State’s case is taken into consideration. The strength of the State’s case is typically not taken into consideration in Texas courts, but the strength of the Government’s case is typically considered in federal court.
Hearings for Bond Reduction
There is an art to bond reduction hearings. Your attorney should know whether or not to call witnesses, and if so who. Judges’ attitudes about which facts are relevant, and which facts are the most relevant, varies in bond reductions hearings even more than in the initial decision to set the amount of bond. A judge hearing a bond reduction motion will hear more evidence than was presented when bond was set. Although the facts surrounding the offense are obviously relevant in determining the bond amount, many courts do not consider the facts surrounding the alleged offense unless the defense inadvertently “opens the door” to such evidence. Therefore a defendant may be able to take the stand and testify about his financial condition, ties to the community, and promise to appear for court settings without being asked about the offense he is accused of. Judges are free to determine whether or not they will allow the prosecution to cross examine a defendant about the actual offense if he takes the stand and judicial attitudes vary from county to county, judge to judge, and between the state and federal systems. This attitude varies by offense and having an attorney that knows whether or not the judge will allow the prosecution to cross examine the defendant on the underlying facts of a criminal case at a bond reduction hearing, and if so to what extent, is critical to success at trial.
Additionally, bond reduction hearings are often not in front of the judge who set the original bond amount and the rules of evidence don’t apply to bond reductions. Bond reduction motions are short considering you or your loved one’s freedom is at stake and judges tend to rule on these motions faster than they do trials, sentencing, or suppression motions. Therefore ambiance is more important than in some other hearings. Voice, tone, inflection, demeanor, and imagery affect everyone’s decision making process, even judges. Your attorney needs to understand how your judge reacts to these types of atmospherics.
Probation and Parole
Texas law requires that a judge set bond when the state attempts to revoke a person’s deferred adjudication community supervision, but bond is not required for a probation revocation or a parole revocation. This is because when a person is placed on deferred adjudication they have not technically been found guilty. However, many counties set bond for probation revocations and defendant’s accused of violating their parole are increasingly granted supervised release while their revocation is pending. For example, Taylor, Coleman, and Callahan counties typically set “no bonds” for probation revocations and the district judge of Nolan, Fisher, and Mitchell counties typically sets a bond for probation revocations.
I’ve noticed a recent positive change involving my clients accused of violating their parole. From 2004 through 2014 I saw few occasions where blue warrants were lifted, however since 2015 lifting blue warrants following the preliminary parole hearing has become the norm. In my opinion, this means that parolees accused of violating their parole should not waive their preliminary hearing.
Federal Cases
Typically Federal Courts do not set bond. They either release a defendant on conditions of release or detain. Bail bondsmen are typically not involved in the federal system. Whether or not the federal government will ask the Court for pretrial detention depends on many of the same factors state court judges consider. Federal Courts also consider the likelihood that a defendant will show up to trial and the safety of the community and assume that defendants facing a substantial amount of time upon conviction are less likely to show up to trial. However, in a federal case the sentence a defendant is potentially facing is determined by the federal sentencing guidelines. If a defendants’ guide line punishment range is high for the crime they are accused of the United States Attorney’s Office is more likely to ask the Court for pre-trial detention. However, just like in state court Federal Courts often do not give the prosecution everything they ask for. Defendants facing charges are frequently released on conditions of release over the Government’s objection.
Other Considerations
When a defendant is charged in several counties at the same time it’s important to ensure that bond is posted for all counties at the same time. This ensures that if a defendant is eventually confined on the offenses that he or she receives credit for back time. Back time is also an important consideration if a defendant gets rearrested while a case is pending. If a defendant is on bond on some offenses, but not others he may not receive back time credit for all of the offenses he is on bond for. Additionally, whether or not a defendant is confined is an important factor in plea negotiations. Sometimes incarcerated defendants get better plea offers, and sometimes bonding out is essential to success at a trial or at a sentencing hearing. Your attorney must be experienced enough to know whether or not posting bond is the best decision.
Defenses
There are two basic types of defenses under Texas law, justifications and excuses. Justifications absolve a person of criminal responsibility even though they committed the crime. The most common example of this is self-defense. In a self-defense case the criminal act was committed, but the criminal act was deemed justified. Another general type of defense is an excuse. This occurs where a person’s culpable mental state was so severely affected by circumstances beyond their control that they are not held legally responsible for their actions. An example of this is duress. Duress occurs, for example, where a person commits a criminal act solely because they were threatened with death or serious bodily injury.
Justifications are found in chapter 9 of the Texas Penal Code and include public duty, necessity, self-defense, defense of others, and defense of property. The public duty defense is primarily intended for law enforcement and for those who have a duty to defend another based on a special legal relationship. The necessity defense applies when the actor reasonably believes the conduct is necessary to avoid a greater immanent harm. Self-defense cases are more common.
Self-defense may be used in response to deadly force or non-deadly force, but not in response to verbal provocation alone. Using non-deadly force in self-defense is legally justified when the act is something that an ordinary reasonable person would believe is immediately necessary under the circumstances, and when the actor believes the force is immediately necessary. Deadly force is legally justified only in response to deadly force, but non-deadly force is legally justified any time self-defense is justified. Much of the litigation in self-defense cases is over whether or not the actors’ use of force constitutes deadly force, and whether or not the alleged victim’s use of force constitutes deadly force.
The law regarding the use of force to protect third persons mirrors the law of self-defense. If the actor reasonably believes that the person he is defending would have the right to use the type of force used then the use of force is justified. Like self-defense law in Texas, there is no duty for either the third party or the actor to retreat before using force to defend another.
Non deadly force may be used to protect property to prevent trespass or unlawful interference with one’s property, or to recover property if the actor is in fresh pursuit of the thief. Deadly force may be used to prevent the commission of a burglary, robbery, theft during the nighttime, or vandalism during the nighttime, or to prevent a person from fleeing immediately after committing a burglary, robbery, or theft when the use of non-deadly force would expose the actor to a substantial risk of serious bodily injury.
Chapter 8 of the Texas Penal Code lists general defenses to criminal responsibility that are not justifications. These include insanity, duress, and entrapment. A person is not criminally responsible by reason of insanity when the actor didn’t know their conduct was wrong as a result of a severe mental disease or defect. Insanity is an affirmative defense which means the defendant has the burden of proving his insanity by a preponderance of the evidence.
Duress is also an affirmative defense to prosecution. Proving duress requires the defendant to prove that he was compelled to do the illegal act by force or threat of force. In a felony case the defendant must prove that he was compelled to do the illegal act by the threat of imminent death or serious bodily injury to himself or another. This defense is not available if the defendant knowingly placed himself in a situation where it was probable he would be subjected to the compulsion described above.
Entrapment occurs when the defendant was persuaded to do the criminal act by law enforcement in a manner that would persuade an ordinary person under the circumstances. Once the defendant shows that he was the target of persuasive police conduct the Court’s focus is directed at the police conduct itself and the question is whether or not the police conduct in question would persuade an ordinary person under the circumstances. Unlike other defenses the entrapment defense may be raised at a pretrial hearing.
Drug Cases
There are a wide variety of state and federal drug crimes. Crimes range from federal conspiracy cases to tickets for possession of drug paraphernalia. Punishments depend on the drug and the amount. For example, punishment ranges for marijuana are substantially lower than punishment ranges for methamphetamine, cocaine, heroin, and ecstasy under both Texas and federal law. It’s important to consult an attorney immediately after being charged with a drug crime because law enforcement doesn’t stop investigating the case after the initial arrest. This makes drug cases distinct from many other offenses. Compare a drug case to a DWI for example. The investigation for a DWI case often ends shortly after the accused is taken into custody. This can be true with some types of drug cases, but others such as federal conspiracy cases, cases involving multiple suspects, typically require investigations that can last for several months after the arrest.
Drug cases have a story. What happened before and after the drugs were found is relevant to your defense. For example drugs found from the search of a house are often found in common areas, shared bedrooms, or hidden in a place where no one has quick access. Whose drugs are they? The state must prove knowing care, custody, and control for a conviction. The same thing applies to vehicle stops. Often the drugs are found in a console, or under a seat where no one has quick access, or in a hidden area with no indication of how long the drugs have been there. Because of this ambiguity officers will often want more evidence than what is available to them at the scene of the arrest. Paraphernalia including baggies, scales, money, pipes, and needles will likely be collected in order to build a more solid case.
Texas law provides defendants some protections in drug cases that are not available under federal law. Texas grants greater protections against unlawful search and seizure than federal law. For example, Texas law protects against unlawful searches from private individuals not just law enforcement. Therefore you have the same protections against your boss searching your car as you would a police officer. Still other examples are the good faith exception, and inevitable discovery rule. Neither apply in Texas which has the effect of increasing the protections Texans have against search and seizure. Additionally, in Texas law enforcement must prove consent to search by clear and convincing evidence rather than just a preponderance of the evidence. Finally, a defendant in Texas facing drug charges, unlike a defendant in a federal case, cannot be convicted solely on the testimony of a co-conspirator or co-defendant.
Federal Drug Cases
Federal drug cases are different than state cases in many ways. Convictions in federal court based solely on the testimony of a co-conspirator are valid in federal court. Additionally, a conspiracy case does not require possession of any illegal drugs. All the government has to prove is that three or more people conspired to distribute drugs and that the accused did one or more overt acts in favor of the conspiracy. Additionally, the amounts of controlled substances or total weight is determined differently than in Texas drug cases. In a federal conspiracy case, defendants are criminally responsible for all of the drugs distributed during the conspiracy. The amount is often proven by testimony only. For example a defendant that sells 4oz of methamphetamine every day for 15 months is criminally responsible for distribution of 50,960 grams or 50.960 kilograms of methamphetamine. Obviously no one will be caught with 4oz of methamphetamine every day for 15 months, but amounts in these cases are often proven by testimony only.
Punishment ranges for Texas drug cases are often higher than federal cases. However, the average defendant serves far more time on upon conviction for a federal drug case than a state drug case. This is due to strict sentencing guidelines on federal cases and a lenient parole law affecting people convicted of drug crimes not occurring in drug free zones under Texas law. Convictions for state cases often result in community supervision and there are a variety of treatment options for people in Texas placed on community supervision for a drug offense. In my experience federal drug convictions typically result in incarceration. It’s important to hire an attorney quickly in a federal case since the investigations typically start long before the arrest.
Federal Cases
Federal cases move quickly and it is important that you contact an attorney immediately. This is particularly important because federal cases tend to be testimony centric and suspects are often intimidated into making incriminating statements before they hire a lawyer. Federal cases are less common than state cases, but often more severe because people convicted of federal crimes must typically serve at least 80% of their sentence before supervised release. The term of supervised release varies from case to case but is often for life. Federal cases don’t just involve crimes where a state or international boundary was crossed, but involve cases that affect interstate commerce. Courts have determined that almost any criminal activity affects interstate commerce therefore there are a wide variety of federal criminal offenses. Some of the most common federal crimes are drug crimes, possession of child pornography, and unlawful re-entry following deportation.
Drug Crimes
Convictions in federal court based solely on the testimony of a co-conspirator are valid in federal court. Additionally, a federal conspiracy case does not require possession of any illegal drugs. All the government has to prove is that three or more people conspired to distribute drugs and that the accused did one or more overt acts in favor of the conspiracy. The way amounts of controlled substances are determined is different than in state possession cases. In a federal conspiracy defendants are criminally responsible for all of the drugs distributed during the conspiracy. The amount is usually proven by testimony only. For example a defendant that admits to selling 4oz of methamphetamine every day for 15 months is held criminally responsible for 50,960 grams or 50.960 kilograms of methamphetamine. If that person has two prior felony probations their guideline range would be a minimum of 292-360 months of imprisonment. Remember this defendant may have never been found with illegal drugs on him or anywhere near him.
Possession of Child Pornography
Possession of Child Pornography is a serious matter that is becoming an increasingly common charge. Like drug cases, talking to investigators often makes the situation worse. These cases often revolve around peer to peer software exchanges of pornographic images. Federal agents are often able to see these images without a search warrant and able to obtain a search warrant once the pornographic images are viewed from a suspects shared file. Search warrants are then served on the internet service provider which typically leads federal investigators to an IP address, which leads them to a location where the computer in question is seized and then examined. A suspect is usually then identified and interviewed before an arrest is made and without a lawyer. Incriminating statements made during this interview are typically admissible even without a lawyer because the suspect is not in custody at the time. If convicted a defendant often faces more time than a state case where actual physical contact occurs. However, even where the Government has a solid case on possession of child pornography their sentencing enhancements may be on less solid ground. It’s important to hire an experienced attorney that understands both child pornography cases and sentencing enhancements related to possession of child pornography.
Unlawful Re-Entry following Deportation
Unlawful re-entry following deportation is perhaps one of the most difficult cases to achieve an acquittal or dismissal for obvious reasons, but hiring an experienced attorney is important if you are going to get a good result. The fact that you, as a defendant, are physically here in the United States presents a problem for the defense. However, unlawful re-entry cases have highly variable punishment ranges depending on which enhancements apply. The cases are worse if the government can prove that an accused has been deported twice or has committed an aggravated felony in the past. It takes a skilled attorney who understands federal law keep these sentencing enhancements to a minimum.
Felonies
A felony is a crime punishable by more than one year confinement. Unlike misdemeanors people accused of felony offenses have a constitutional right to counsel and have a right to have an attorney appointed if they cannot afford one. In Texas there are four basic levels of felony offenses, a first degree felony, second degree felony, third degree felony and state jail felony.
State Jail Felonies
A state jail felony is a felony offense punishable by 180 days to 2 years confinement in a state jail facility and a fine of up to $10,000. Like most other felonies in Texas a state jail felony may be dismissed, probated, or reduced to a lesser charge. A defendant may also be placed on deferred adjudication or confined in a state jail. Terms of probation or deferred adjudication may be for up to five years. State jail felonies include unauthorized use of a motor vehicle, possession of a controlled substance under 1 gram, and credit card and debit card abuse cases. State jail felony possession of controlled substance under one gram cases are mandatory probation case if the accused has no prior felony convictions as an adult. However, there is no parole from a State Jail Facility and most state jail inmates have served their entire sentence. Today an inmate sentenced to a State Jail Facility may be released once they have served 80% of their sentence upon completion of certain programs.
Mandatory Probation Cases
Some possession of controlled substance cases which are felonies are mandatory probation cases which means that the defendant upon conviction may not be sent to a State Jail Facility. The most common two mandatory probation cases are possession of cocaine and possession of methamphetamine under one gram. These cases are mandatory probation only when the defendant has no prior felony convictions as an adult. A person on probation or deferred adjudication for a mandatory probation case may be revoked and sent to a State Jail Facility. It’s somewhat ironic that some state jail felonies are mandatory probation when no less serious class A and class B misdemeanors are.
However, punishments for mandatory probation cases can include lengthy probations and lengthy terms of confinement. Probations can be between two and five years and confinement in either a county jail or a state jail as a condition of probation can be up to 180 days. This means that a person can be given 180 days confinement and then serve 4 ½ years of probation after the confinement has ended on a mandatory probation case.
Third Degree Felonies
Third degree felonies are punishable from 2 to 10 years confinement and up to a $10,000 fine. Some common third degree felonies are possession of a controlled substance between 1 and 4 grams, DWI 3rd, Assault Family Violence 2nd, evading arrest, assault of a public servant, deadly conduct, possession of child pornography, and indecency with a child by exposure. Although third degree felonies have longer punishment ranges than state jail felonies they often result in more lenient punishments because a person who is confined for a third degree felony will usually be up for their first parole hearing when 1/8th of their sentence is served.
Second Degree Felonies
Second degree felonies are punishable from 2 to 20 years confinement and up to a $10,000 fine. Second degree felonies and higher are include the types of activities that have historically been considered serious crimes. These crimes include burglary, robbery, sexual assault, arson, aggravated assault, and 2nd degree murder, indecency with a child by contact, possession of 1-4 grams of a controlled substance with intent to deliver, and possession of a controlled substance of 4-200 grams. A person convicted with a second degree felony is more likely to receive a sentence of confinement than a person convicted of a third degree felony.
First Degree Felonies
First degree felonies are punishable by confinement from 5-99 years or life in prison. However, probation is available for all first degree felonies except murder. Although first degree felonies are the highest level of felonies which are common in Texas all first degree felonies are not alike. First degree felonies include murder, sexual assault, aggravated assault of a public servant, theft of over $300,000, possession with intent to deliver over 4 grams of a controlled substance, or possession of over 200 grams of a controlled substance.
The two most important distinctions involving first degree felonies involve the application of the Texas Parole Law, and sex offender registration. The Texas Parole Law requires defendant convicted of aggravated offenses to serve at least half of their sentence, and offenders convicted of non-aggravated offenses may serve as little as 1/8th of their sentence before becoming eligible for parole. The list of aggravated offenses is found in the Texas Penal Code in section 42.12 (3) (g). This list includes, murder, aggravated robbery, all first degree felony sex offenses, aggravated assault with a deadly weapon, and first degree injury to a child or injury to an elderly individual. A case that is traditionally non-aggravated such as deadly conduct, which is a third degree felony, may be aggravated if the Court makes a weapon finding.
Sex offender registration is required for upon conviction for most sex offenses and is typically for life. The registration requirement applies whether or not a person is confined, placed on probation, or placed on deferred adjudication. The severe restrictions for sex offenders typically only apply when they are on probation or parole. When a person required to register as a sex offender is not on probation or parole then their only restriction is typically that they must register periodically. Defense attorneys must make every effort to prevent their clients from registering as a sex offender.
The good news is that first degree felonies are often easier to defend than more minor felonies because they often arise out of situations involving several people. Where several people are present, and/or involved in a situation giving rise to a criminal offense it is often difficult for the State to determine who is criminally responsible. Further, the criminal history of the defendant, witnesses, and alleged victim are often similar.
Repeat and Habitual Offender Law
Texas has a version of the “three strikes and you’re out,” law whereby defendants with prior convictions face more sever punishments. The Texas repeat offender statute raises the punishment for a felony offense by one level and the habitual offender statute provides that an offender who has two prior felony convictions is subject to a minimum of 25 years and a maximum of life for some offenses. The good news is that the statutes have limited applicability. Priors count under these statues only if the defendant was sentenced to prison for the prior offenses and the habitual statute requires that the offenses must be sequential. Furthermore the offenses must be TDCJ offenses meaning convictions for 1st, 2nd, or 3rd degree felonies. Confinement in state jail on one occasion and in the Texas Department of Criminal Justice on another does not make a defendant a habitual offender.
Capital Offenses
Capital Offenses in Texas include felony murder which is murder committed in the course of another felony, murder of two or more people, murder of a public servant, and murder as retaliation for a public duty, murder of two or more people, and murder for hire. Felony murder is the most common and it includes home invasions and convenience store robberies where someone is killed in the course of the robbery. Often the prosecution will waive the death penalty and proceed with a “capital life” case. This means that if the accused is convicted he or she will serve the rest of their life confined without the possibility of parole. Often death penalty cases are reduced to regular murder by a plea bargain and the accused serves a term of years and are eventually eligible for parole.
Financial Crimes
There are a wide variety of state and federal financial crimes. Exposure for financial crimes can vary from a fine to multiple life sentences. In Texas the majority of financial crimes charged are minor felonies. Financial crimes include theft, forgery and fraud. Other related crimes include fraudulent use of identifying information, and unauthorized use of a motor vehicle.
The most obvious financial crime is theft. The Texas Penal Code defines theft broadly to include receipt, or possession of stolen property. However, you must know the property is stolen to be guilty of theft. The Texas theft statute found in section 31.03 of the Texas Penal Code is a long and confusing statute and jury instructions in a theft case can be more confusing. The broad definition of theft in the penal code makes conviction for theft far easier than one would think. More significantly even minor theft convictions may bar employment years or even decades later. Theft cases are often among the easiest cases for the State to prove because they are often captured on video and there are often eye witnesses to the transaction in question. However, embezzlement cases are often harder to prove.
On a positive note the State is often willing to dismiss provable theft cases if the money is paid back. Other times paying restitution up front doesn’t lead to a dismissal of the case but sets the conditions for you to remove the arrest from your criminal history. Getting a client a “good deal” on a provable theft case is an art rather than a science and it requires an experienced criminal attorney.
Forgery is a felony in Texas regardless of the amount. Typically the forged instrument is a check, but forgery cases arise from a variety of written documents. Forgery may be charged when a person signs another person’s signature without their permission or merely passes a forged document to another person knowing that the document is forged. Plea negotiations in forgery cases are more difficult than in theft cases because paying the money back is often not as important to the victim in the case. The amounts are often smaller in forgery cases than in theft cases, and sometimes the loss is paid by a third party.
Fraud is charged where deception is used to secure a benefit. Fraud is inherently deceptive and harmful to another person or entity. Like theft, fraud cases come in all shapes and sizes. Some more common types of fraud arise from applications for government assistance. In these situations under reporting income is often the basis for the fraud charge. These cases often arise where the State believes that two or more wage earners are living in a household when the applicant states that only one wage earner is living there. These cases become complicated in situations where other adults come in and out of the household and/or have sporadic employment.
Sentencing Options
Choosing the Right Path for Your Case
Not all criminal cases are winnable and more cases end in plea bargains than acquittals or dismissals. It’s important to hire an attorney with significant trial experience that’s not afraid to fight your case in a court of law. However, it’s also important to hire an attorney with significant enough trial experience that he knows when not to. Criminal defense is typically not all or nothing. Your attorney’s ability to negotiate an agreement in your criminal case is important. Additionally, there is a third way of resolving cases known as an open plea. An open plea is where a defendant pleas guilty to the offense and has a judge or jury assess punishment rather than taking his chances with a trial or accepting a plea bargain. At first the idea of an open plea is counter-intuitive. It requires a confession to the offense and does not secure a plea bargain. If you think a lot can go wrong with an open plea because you’re handing the state evidence to use against you, you’re right. However, with the right case and the right attorney an open plea should result in a lighter sentence than the plea bargain. Achieving good results an attorney who can predict the Trial Court Judges’ behavior and accurately evaluate cases. This takes practice and is something that new attorneys may find difficult.
Punishment Ranges
The punishment ranges for Texas cases are listed in the Table below:
Level of Offense |
Max
Fine |
Confinement |
Probation |
Deferred Adjudication |
Habitual Offender |
$10,000 |
25 years – life |
Ineligible |
Ineligible |
Repeat Offender |
$10,000 |
15 years – life |
Ineligible |
Ineligible |
1st Degree Felony |
$10,000 |
5 – 99 years |
5 -10 years |
5 -10 years |
2nd Degree Felony |
$10,000 |
2 – 20 years |
2 – 10 years |
2 – 10 years |
3rd Degree Felony |
$10,000 |
2 – 10 years |
2 – 10 years |
2 – 10 years |
State Jail Felony |
$10,000 |
180 days – 2 years |
2 – 5 years |
2 – 5 years |
Class A Misdemeanor |
$4000 |
1 day – 365 days |
Up to 2 years |
Up to 2 years |
Class B Misdemeanor |
$2000 |
1 day – 180 days |
Up to 2 years |
Up to 2 years |
Class C Misdemeanor |
$500 |
Fine only offense |
Fine only offense |
Fine only offense |
Probation
Probation and Deferred Adjudication are available for most cases in Texas. Probation creates conditional liberty. Some probationers describe it as one foot in and one foot out of prison. The standard conditions for probation are found in section 42.12 of the Texas Penal Code. However, actual conditions may vary by county and by judge. In close cases, or cases where the defendant is on the cusp of going to prison a Court may make the conditions of parole stricter. For example, a judge can require up to 180 days confinement as a condition of probation in most felony cases, or require the defendant to enter prison style drug rehabilitation programs that can last for up to two years. Probation may be revoked for any violation regardless of how minor the infraction. A probated sentence is a conviction and has the same effect on a person’s criminal history as going to prison, state jail, or county jail. Under current Texas law a conviction from a probation will never come off a persons’ criminal record. Passage of time is irrelevant. Unlike deferred adjudication, probation offers no mechanism to eliminate or remove a record of conviction or an arrest record from a persons’ criminal history. However, probation is can be better than deferred adjudication in some circumstances. This is because upon a violation of probation a person’s sentence is limited to their term of probation. For example, where a person is sentenced to six years of probation their maximum sentence for a violation becomes six years. This is significant for a person who receives six years of
probation for a 1st degree felony. If their probation is revoked their maximum punishment is six years confinement even though the same person was facing a life sentence before being placed on probation. A probationer may be discharged from probation before their probationary term is complete. This is known as early release. In situations where early release is possible a probationer may be discharged once they serve the lesser of 1/3rd of their probationary term 2 years of probation. The same rules apply for deferred adjudication. This means that a person placed on probation for eight years for a second degree felony may be discharged from probation after serving 2 years on probation even though that’s only ¼ of the probationary term. A person placed on probation for three years is eligible for early termination of probation at the one year.
Deferred Adjudication
Deferred adjudication does not result in a conviction unless the deferred adjudication is later revoked. Deferred adjudication is always better than probation for a defendant that successfully completes their community supervision. Deferred adjudication is not a conviction and a person successfully completing deferred adjudication will never show a conviction on their criminal history. However the arrest will remain unless an order of non-disclosure is granted. Deferred adjudication is not available in all cases. For example, deferred adjudication is not available for most alcohol related offenses other than class C misdemeanors. In most cases a person may be released early from deferred adjudication.
Upon successful completion of deferred adjudication the Court may grant an order of non-disclosure. This doesn’t happen automatically. A petition must be filed and evidence is presented at a hearing. If the order is granted the arrest record will not be released to any entity not affiliated with law enforcement. A person is eligible for an order of non-disclosure 5 years after successfully completing deferred adjudication on a felony case and two years after completing deferred adjudication on a misdemeanor theft case. Eligibility is immediate after successfully completing deferred adjudication in all other cases where a person is eligible for an order of non-disclosure.
Parole
Parole should be almost identical to probation or deferred. The legal rights of individuals on probation or deferred adjudication and parole are almost identical. However, in Texas the parole system suffers from a lack of court oversight, an inadequate number of attorneys working for the state, and an inadequate number of attorneys representing defendants trying to make parole or facing parole revocations. The result is a system that often fails to give proper weight, and sometimes fails to give any weight, to the constitutional rights of the accused. Further, there is no ability to plea bargain a parole revocation. The irony is that in this system suffering from a lack of qualified employees that tend to disregard the constitutional rights of the accused, a qualified attorney can make a significant difference in the outcome of a revocation.
In a parole revocation hearing none of the individuals present at the hearing have the power to determine the fate of the accused. At the conclusion of the “adjustment” phase of the hearing both the parole officer and the hearing officer make recommendations to the parole board which is free to accept or reject their recommendations. The Parole Board goes against the recommendations of the hearing officer and parole officer with surprising frequency and often to the benefit of the parolee. Although there is no way to plea bargain a pending parole revocation, many parolees who have violated their parole are sent to an intermediate sanction facility, ISF, rather than to prison. However, even when it’s clear that the hearing officer and parole officer will recommend ISF it’s important to present a strong case in favor of the parolee because the recommendations by themselves may not be enough to convince the Board to keep the parolee out of prison.
Misdemeanors
There are there basic types of misdemeanors, class A, class B, and class C. Class A misdemeanors are punishable by up to a $4,000 fine and confinement of 1 year in a county jail. A class B misdemeanor is punishable by up to a $2,000 fine and confinement in a county jail for up to 180 days. A class C misdemeanor is a fine only offense; however a person can be arrested for a class C misdemeanor.
Class A Misdemeanors
Common Class A misdemeanors include assault family violence, assault, DWI 2nd, DWI with BAC > .15, possession of marijuana 4oz – 2lbs, possession of a dangerous drug, and theft of $750-$2500. Convictions to class A misdemeanors can have long lasting effects on employability. Theft and Assault family violence convictions are among the most damaging. Assault family violence convictions may bar a person from legally owning a firearm which may cause members of law enforcement or members of the military to lose their jobs. However, an assault family violence convictions are often difficult because the alleged victim often maintains their relationship with the accused. Further, these cases often arise in the context of mutual combat and in situations where it’s unclear who started the fight or how it started.
Class B Misdemeanors
Class B misdemeanors include possession of marijuana, criminal trespass, theft of more than $100, but less than $750, prostitution, driving with a suspended license, and driving with license invalid 3rd. Class B cases are remarkably challenging at trial considering the minor nature of the offense. This is because they don’t involve the types of offenses were recantations are common, and often there is not a viable third party scape goat the defense attorney can blame the offense on. Prostitution and theft convictions are particularly damaging to employability and DWI cases are expensive. The good news is that B misdemeanor DWIs are among the hardest cases for the State to prove. Convictions for DWIs are historically low where the prosecution must rely solely on officer testimony and standard field sobriety testing (SFSTs), Further, illegal searches and seizures in class B misdemeanor marijuana cases are about as common as they are in more serious cases. Finally, many counties offer pretrial diversion programs which are well suited for a class B defendant who on the one hand is accused of a case that is easy to prove, and on the other has little or no criminal history.
Pre Trail Diversion
Pretrial diversion is an informal program that varies from county to county whereby through agreement a case is taken off the court’s docket and a defendant is placed on a type of community supervision through the county’s probation department or district attorney’s office. The main advantage of pretrial diversion is that a defendant who successfully completes pretrial diversion has a right to have their case expunged.
Expunction
Expunctions effectively seal an arrest record. Expunctions are more powerful than non-disclosure orders because records of cases are no longer kept after expunction and law enforcement is also required to destroy their records. Expunctions are available as a matter of law following a not guilty verdict or successful completion of pretrial diversion. Expunctions are also available for misdemeanors where a person was never convicted or placed on community supervision under Texas Penal Code section 42.12, where a case was ultimately dismissed, and where the statute of limitations has run. The same rules apply for a felonies except that the dismissal must be for a lack of probable cause.
Non-Disclosure Orders
More commonly a defendant is eligible for a non-disclosure order whereby the State may be fined if they release a defendant’s arrest record. The orders are far more effective than you might think. As a practical matter a non-disclosure order also seals a person’s criminal record. After a non-disclosure order the clerk’s office, police department, and Texas Department of Public Safety, will not release any arrest record to non-governmental agencies. Like expunctions, a non-disclosure prevents a third party from finding out about an arrest and occurs in situations where there was never a conviction to begin with. Non-disclosure orders are not available in all cases. For example they are not available for sex offenders, DWIs, and injury to a child, or injury to the elderly cases. Many non-disclosure orders have a waiting period where the wait time begins upon the successful completion of deferred adjudication community supervision. The waiting period for felony cases is five years, two years for misdemeanor thefts, and there is no waiting period for other qualifying misdemeanors.
Finally, unlike expunctions, non-disclosure orders are discretionary. Judges don’t have to grant them even if a person is eligible and contested hearings often re-litigate the underlying facts of the offense. Hiring a knowledgeable attorney can help you obtain a non-disclosure order on your timeline. Obtaining a non-disclosure order may be essential to obtaining a better job.