New Theft Amounts in Texas

In late 2015, the Texas Legislature amended the amounts and ranges on many theft related offenses.  Below is an updated list showing the old values and the new values.

Criminal Mischief

  • Criminal Mischief under $50 becomes Criminal Mischief under $100
  • Criminal Mischief $50-$500 becomes Criminal Mischief $100 – $750
  • Criminal Mischief $500-$1500 becomes Criminal Mischief $750-$2500
  • Criminal Mischief $1500-$20,000 becomes Criminal Mischief $2500-$30,000
  • Criminal Mischief $20,000-$100,000 becomes Criminal Mischief $30,000-$150,000
  • Criminal Mischief $100,000-300,000 becomes Criminal Mischief $150,000-$300,000

Theft

The legislature eliminated the difference between theft and theft by check ranges — now making them the same. So no longer are the Theft by Check amounts different than a typical Theft case.

  • Theft under $50 becomes Theft under $100
  • Theft $50-$500 becomes Theft $100 – $750
  • Theft $500-$1500 becomes Theft $750-$2500
  • Theft $1500-$20,000 becomes Theft $2500-$30,000
  • Theft $20,000-$100,000 becomes Theft $30,000-$150,000
  • Theft $100,000-300,000 becomes Theft $150,000-$300,000

 

 

 

 

DWI Occupational Driver’s Licenses – New Laws 2015

September 1st began a new era of laws for Occupational Licenses in Texas.  Stemming from the Transportation Code, Section 521, there are several new rules and law changes with Occupational Driver’s Licenses — especially when DWI in concerned.

Specifically, House Bills HB 2246 and HB 441 amended the previous Occupational License laws in texas.  Here’s how:

First, and probably most importantly, there are new Interlock Device rules.  Ignition Interlock Devices (IID) are hotly debated.  Basically, the general public sentiment is “if you can’t make the call whether you can drive, then we will.”  On the accused side, which admittedly has less tax-payer support, IID is costly, a burden, and only marginally avoids DWIs (especially when the accused has access to other non-IID cars).

Getting to the point, the new law updates  Section 521.246, Transportation Code, to require Interlock IID for the ENTIRE suspension period following a DWI related conviction.  Before this law, judges were not required to order an IID for a DWI 1st conviction — and most in Travis County did not.  In fact, even in Hays County it was not as common…  Now, all Occupational Licenses following a DWI conviction must have IID.  Plus, defendant’s may no longer return to court and request the IID removed halfway through the suspension — it’s the full term.

That’s really the only bad news in terms of Occupational Licenses and the New Laws in Texas.  Gone are the Hard Suspensions.  Texas Transportation Code Section 521.251 (d-1) allows the court to issue an ODL despite the statutory waiting periods, even if multiple DWIs within a 5 or 10 year period, as long as the defendant has an interlock IID installed.  So you no longer need to wait for the ODL after a DWI (or multiple DWIs).

There is also no need to prove “essential need” after conviction.  Under the new law, Section 521.244, defendants (after a DWI only) no longer are required to provide some a reason for driving.  Before September 1, defendants were required to provide pay stub checks, letters from employers, and sworn affidavits concerning household duties and chores, (testimony re errands for the client or kids).   Now, a judge merely needs to see SR-22 Insurance and proof of the IID Interlock installation.
Likewise, there are no longer any time, or location (County) restrictions if an IID is installed.  Under Section 521.248, Transportation Code, a defendant with IID may drive as needed, without setting forth ahead of time the areas and times under which they might drive.
Lastly, the Court documents are now valid for up to 45 days from the Clerk’s Office stamp — mainly due to delays in DPS processing.  (It used to be 30 days).


Can my Criminal Record be Used Against Me?

Can my Old Criminal Record be Used Against Me? It’s one of the most misunderstood areas of law in Texas, and America is general.  There is a common misconception that a person’s prior criminal arrest record cannot be used against them.  In Texas, (as well as almost every State) that’s not true.

The criminal laws in Texas contain MANY instances of allowing prosecutors to upgrade and enhance charges based on a person’s prior record.

For instance, if the person has two thefts (even at the Misdemeanor level), the next one can be enhanced to a Felony.  Likewise, prior family assault convictions can lead to a felony family assault.

If a person has twice been to TDCJ (Texas Department of Criminal Justice) — which means prison — then that person, if convicted on their third Felony, can be enhanced to a Habitual Offender, punishable by between 25 years TDC to life in prison.

The old adage “Pay your Debt to Society” is accurate only in the sense of an intangible debt owed to the community.  There is no legal truth to putting your past behind you after a conviction.

There should be.  People change, especially first time young offenders.  A conviction in Texas will follow a person for their entire life.  So that petty Shoplifting while in college will still be showing up on a Criminal Arrest Background Check 50 years later.

So what about Clearing Your Criminal Record? For Convictions, there is NO RIGHT to expunctions in Texas.  But inherently linked with that denial is a sense of hopelessness by people who did suffer a conviction — the law offers no incentive, aside from a rare governor’s pardon, to lead a fruitful, law abiding life.  The conviction will linger forever on job background checks, rental agreements, and job promotions.

Travis County Knife Lawyer

Recently I spoke with a person who called me about being warned about possessing an unlawful weapon: a knife. A basic, run of the mill folding knife, where the blade locks into place so the weilder could safely use it without cutting themselves. A normal, store bought knife that was 3 inches long.

Illegal? The man was calling from San Antonio, where that knife IS illegal. But that answer is quite confusing, especially for people outside of San Antionio.

To understand Texas Knife Laws, it’s important to start with the statutes.

Sec. 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:
(1) on the person’s own premises or premises under the person’s control; or
(2) inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person’s control.

To figure out which knives consititute an “illegal knife”, we look to Sec. 46.01. It reads:

TITLE 10. OFFENSES AGAINST PUBLIC HEALTH, SAFETY, AND MORALS, CHAPTER 46. WEAPONS, Sec. 46.01(6) “Illegal knife” means a:
(A) knife with a blade over five and one-half inches;
(B) hand instrument designed to cut or stab another by being thrown;
(C) dagger, including but not limited to a dirk, stiletto, and poniard;
(D) bowie knife;
(E) sword; or
(F) spear.
(7) “Knife” means any bladed hand instrument that is capable of inflicting serious bodily injury or death by cutting or stabbing a person with the instrument.

Of note is subsection (11) “Switchblade knife” means any knife that has a blade that folds, closes, or retracts into the handle or sheath and that opens automatically by pressure applied to a button or other device located on the handle or opens or releases a blade from the handle or sheath by the force of gravity or by the application of centrifugal force. The term does not include a knife that has a spring, detent, or other mechanism designed to create a bias toward closure and that requires exertion applied to the blade by hand, wrist, or arm to overcome the bias toward closure and open the knife.

This section — the all inclusive “or by the application of centrifugal force” SHOULD have it’s focus on a type of knife called a balisong. It should not, on it’s face, apply to thumb flick knives, where a nut is loosened (either on purpose or due to wear and tear), resulting in the wielder flicking the knife open without the use of the thumb knob – regardless of the detent. But, I’ve seen it charged on lock knives where the nut is loosened – again, regardless of the detent. Wrongly charges, or deliberate expansion of the statute? I would say it depends on the city/county.

Lastly, it’s very important to note that the above laws are Texas Laws. The 10th Amendment allows local municipalities (cities, towns) to write their own laws, as long as those law do not supersede the state laws. And many in Texas have done so.

For instance, recall how Sec. 46.01(6) outlaws an “Illegal knife” with a blade over five and one-half inches. Well, at the time of this writing, Corpus Christi city law further outlaws knives over 3 inches. Likewise, San Antonio outlaws any locking knife UNDER 5.5 inches long (while the State law still outlaws OVER 5.5 inches) — meaning knives are effectively outlawed in San Antonio.

One more note: Legislation may change the laws above.

HB936 attempted to decriminalize the possession of switchblade knives in Texas by amending Sections 46.05 (a)(d)(e) of the Penal Code.

HB1299 is a preemption law that would forbid cities, towns, and Counties from enacting anti-knife laws that might be more restrictive than Texas knife laws.

HB1862, which would repeal the Texas ban on switchblades.

Currently, I have not researched Legislative updates on these bills, the majority of which appeared to have stalled and fizzled out. If you’re research comes up with updates, please comment or contact me.

Update: Per www.akti.org, Governor Perry Signs Bill to Legalize Switchblades – June 14, 2013 – HB 1862. Effective September 1, 2013, it is no longer illegal to possess, manufacture, transport, repair or sell switchblades in the state of Texas.


New Traffic and Texas Criminal Laws

New Traffic and Texas Criminal Laws that take effect Sept. 1, 2013.

Every Legislative Session, Texas enacts new laws and more regulations upon its citizens. A friend once recommended a limit to the number of laws allowed to be on the books; if the government wants a new one, they need to repeal an old one. That idea aside, lets take a look at the SOME of the new Traffic and Texas Criminal Laws that take effect Sept. 1, 2013.

HB means House Bill, while SB mean Senate Bill, denoting where the law originated.

HB 347 expands the current limitations on wireless communication device (cell phone) use in an active school crossing zone to include the property of a public elementary, middle, or junior high school for which a local authority has designated a school crossing zone. The use will only be restricted during the time a reduced speed limit is in effect for the school crossing zone. Further, it will not apply to vehicles that are stopped, or drivers using a hands-free device or making an emergency call.

Author’s Note: This is a decent law, and avoids dropping your calls at 2am while traveling through a school zone. On a serious note, this law closes the loophole that allowed officers to ticket people who pulled off the road at a school zone so they could finish the call.

HB 1174 amends current statute to increase the minimum fines for the misdemeanor offense of passing a stopped school bus loading or unloading children. The minimum fine increases from $200 to $500, and the maximum fine for such an offense increases from $1,000 to $1,250. The bill also enhances the penalty for a second or subsequent conviction of that offense committed within five years to a misdemeanor punishable by a minimum fine of $1,000 and a maximum fine of $2,000.

Author’s Note: Not a huge difference maker, but it allows the government to get more money out of people who endanger school kids.

SB 181 allows a motor vehicle operator the option of using a wireless communication device (such as a cell phone) to display motor vehicle financial responsibility (proof of insurance) information as evidence of financial responsibility. The display does not constitute effective consent for a law enforcement officer, or any other person, to access the contents of the wireless communication device except to view the financial responsibility information. *This bill is effective immediately.

Author’s Note: Was there really a strong push for people who want to avoid printing out the one sheet of paper every month (or six months)?

SB 510 requires drivers to move over or slow down (as required depending on the roadway) when approaching a stationary Texas Department of Transportation vehicle with its lights activated and not separated from the roadway by a traffic-control device. This provision expands the state’s Move Over/Slow Down law, which already requires drivers to yield to tow trucks, police, fire and emergency vehicles. Violators would commit a misdemeanor offense punishable by a fine of up to $200; punishable by a fine of $500 if property damage occurs; or a Class B misdemeanor if the violation results in bodily damage.

HB 625 clarifies that the penalty for operating a vehicle on a public highway without displaying the two license plates assigned to the vehicle is a misdemeanor offense punishable by a fine not to exceed $200.

HB 3668 amends current statute to require the operator of a vehicle involved in an accident that results or is reasonably likely to result in the injury or death of a person to immediately determine whether a person is involved in the accident, and if so, whether the person requires aid, in addition to other existing statutory requirements.

SB 275 increases the penalty for leaving the scene of a motor vehicle accident resulting in the death of a person and failing to render aid from a third-degree felony to a second-degree felony. A second degree felony carries a punishment of two to 20 years in prison and an optional fine not to exceed $10,000, whereas a third degree felony carries a penalty of two to 10 years in prison and an optional fine not to exceed $10,000.

HB 1284 increases the penalty for the offense of initiating, communicating or circulating a false report of an emergency (such as a bomb threat) involving an institution of higher education from a Class A misdemeanor to a state jail felony. *This bill is effective immediately.

HB 124 adds Salvia divinorum (unless unharvested and growing in its natural state) – including all parts of the plant, seeds and extracts from a part of the plant – to Penalty Group 3 of the Texas Controlled Substances Act.

Author’s Note: An interesting addition. Salvia divinorum is a psychoactive plant that can induce “visions” and other hallucinatory experiences. Its native habitat is Sierra Mazateca of Oaxaca, Mexico,

HB 2637 provides that an individual fraudulently using identifying information to avoid registering as a sex offender to be punished at the next highest degree felony.

Family Violence and Loss of Gun Rights

Especially in Texas, many people are concerned with Gun and firearm Rights. What happens to gun and firearm rights when convicted of a crime, and how does local Austin, Travis county Texas laws compare to federal gun rights?

For the purposes of this Texas Criminal Law Blog post, I’ll be focusing on the consequences of an Affirmative Finding of Family Violence for Gun and Firearm Rights. Do you lose the right to possess a gun if you’ve had a conviction for family violence, with an Affirmative Finding of Family Violence? What is an Affirmative Finding of Family Violence? And lastly, what about Deferred Adjudication on a family violence case, even if the case is dismissed?

Let’s start with the basic notion that if there is an Affirmative Finding of Family Violence, then that person CANNOT possess a firearm. For life. Period.

This is based on several aspects of Texas Law and Federal Law.

Texas Code of Criminal Procedure 42.013 and more specifically 42.0131 is the code section stating that “If a person is convicted of a misdemeanor involving family violence, the court shall notify the person of the fact that it is unlawful to possess a firearm.”

The Court should read aloud the following to the defendant at the time of sentencing:

“If you are convicted of a misdemeanor offense involving violence where you are or were a
spouse, intimate partner, parent, or guardian of the victim or are or were involved in another,
similar relationship with the victim, it may be unlawful for you to possess or purchase a
firearm, including a handgun or long gun, or ammunition, pursuant to federal law under 18
U.S.C. Section 922(g)(9) or Section 46.04(b), Texas Penal Code. If you have any questions
whether these laws make it illegal for you to possess or purchase a firearm, you should consult
an attorney.”

In many (most) family Assault and Family Violence cases, if the court determines that the offense involved family violence, the court shall make an affirmative finding of that fact and enter the affirmative finding in the judgment of the case.

This Affirmative Finding is an official “on the record” announcement that the case involved a family member, and is above and beyond a normal assault case. This Finding can be used to enhance future offenses to a more serious charge, and is used to deny firearm rights, among other things.
Now on to the Federal Law and the Right to a Firearm. Under 18 U.S.C. § 922(g)(9), which is also widely known as the Lautenberg amendment, a person “who has been convicted in any court of a misdemeanor crime of domestic violence” can NEVER possess, own, or be near a weapon OR ammunition. Ever.

While some Texas Statutes do list a time period for certain offenses and the Right to own a gun, the federal law has no length limit. It is forever. The permanent loss of the right to possess a firearm, weapon, or ammunition applies whether the case ends in a conviction, probation, or deferred adjudication and that includes any form of plea bargain.

So if there is a Finding of Family Violence, and the person completed Deferred Adjudication without any problems, and even has the case dismissed, they STILL lose the right to own a firearm.

That’s why it’s important to fight and aggressively negotiate Family Assault cases, since there is such a long lasting and wide range of collateral consequences.

Circumstantial Evidence in Texas

One of the most common complaints about the Criminal Justice system I receive is when a person files a complaint based on their own observations only; no other physical evidence.  The person asks: “How can they charge me with no evidence?”

Unfortunately, Texas Law recognizes a person’s observations as Direct Evidence and other indirect evidence as Circumstantial Evidence.  Both are considered evidence in a Court of Law.

So what happens when a neighbor calls the police, claiming that you trespassed through their yard and went swimming in the pool, but the police arrive late and don’t see you — that statement of the neighbor (they saw you on their property), IS EVIDENCE.  It’s evidence for the police, prosecutor, and the Jury to consider.  That just means they can consider it when looking at the evidence and determining guilt.  If the jury finds the neighbor to be a dishonest person, they can disagree with or ignore the observations.  But the statement is evidence.

Likewise, if the complaining person (victim) says their home was spray painted, and you’re caught a block away with spray paint on your fingertips, and you match the general description, you can be arrested, charged, and possibly convicted — all by Circumstantial Evidence.

Circumstantial Evidence means that guilt can be inferred through the circumstances surrounding the crime.  Texas Law does not require a direct link to the crime; in other words, you don’t need to be observed spray painting the house.  The jury is allowed to infer guilt, and if they believe you committed the crime Beyond a Reasonable Doubt, then they can convict you.

Texas is not the only state to do this –every state allows it. So it’s important to consider all types of evidence when you’re facing criminal charges.  And it’s important to hire an attorney who knows how to defend you from these types of weaker criminal charges.

Can a Family Assault be sealed?

If I successfully complete deferred adjudication for Family Assault can I get the records sealed?

A couple days ago in Court I had a lively, off the record, discussion with a misdemeanor prosecutor about the effects of Deferred Adjudication for family Violence or Family Assault cases on a person’s criminal background record. She was adamant that a person could have the Family Assault offense sealed through a motion for nondisclosure, and used that claim as a basis for why my client should take the offer.

Of course, that’s not an accurate statement of the current law in Texas, as I explain below. But to finish my short anecdote, I pushed for Deferred Prosecution, and ended up getting it for my client, who now can enjoy an Expunction on the Family Assault case.

There are many other consequences for Family Assault and Family Violence cases that I don’t discuss here, such as loss of firearm rights, but for this Texas Criminal Law Blog post, I’ll stick the the issue at hand: If I successfully complete deferred sentencing or adjudication can I get the records sealed?

In short, Deferred Adjudication for Family Assault and Family Violence, and otherwise related domestic violence cases cannot be expunged or have the records sealed.

Now, it’s true that there will not be a conviction on the person’s record, assuming they complete Deferred Adjudication successfully. But, even though the case has been dismissed, the law does not allow for sealing the record through a Motion for Nondisclosure.
Tex. Govt. Code § 411.081 is the controlling Texas Statute. Section 411.081. Application Of Subchapter indicates: ” A person is not entitled to petition the court under Subsection (d) if the person has been previously convicted or placed on deferred adjudication for: …(4) any other offense involving family violence, as defined by Section 71.004, Family Code.”

This section has been interpreted very broadly, especially in Travis County. That means that the courts have (seemingly) expanded the reach of the statute beyond what it appears. If you read the words carefully, it would appear the legislature in Texas was trying to limit Motions for Nondisclosure for people who had previously been placed on Deferred Adjudication for Family Assault. After all, it says “previously convicted OR placed on deferred adjudication for.” The “or” in the sentence seems to carry past the “or”, giving rise to the argument that it’s either “previously convicted” OR “previously placed on deferred adjudication”. Of course, it doesn’t say that.

Regardless, the current laws and caselaw holds that Code, anyone who has ever committed any of the following offenses (including as the offense for which the defendant got deferred adjudication) is not entitled to seek an order of nondisclosure. This, at least in Travis County where I practice, is regardless of a Finding of Family Violence or not.

Illegal Prescription Pills & Travis County Arrests

The Texas Health and Safety Code includes many common prescription drugs, such as Valium, Ritalin, Oxycontin, Xanax. But what you might not know is that people in Austin are being arrested — and in many cases pleading Guilty — to Illegally Carring Prescription Pills.

That’s right; I didn’t say Illegally Possessing Prescription Pills. I said carrying.

Most commonly, an officer finds pills in the pocket or bag of a person arrested. Without proof of a valid prescription, the officer arrests for POCS, typically a Misdemeanor.

The person must endure jail, the bonding process, and then hire a lawyer.

Logically, at Court, they bring along the Prescription to show the Judge and Prosecutors. Sounds simple, but lately prosceutors have been hesitatant — if not unwilling — to dismiss, citing that the prescription is old or the person carries the pills in an illegal container.

A long search, both in the code and online, yielded NO Texas provision that requires prescription pills be contained in the original pill bottle.

So what DOES the law say?

Well, to be in lawful possession of prescription pills (controlled substances), a person must have a valid prescription.

Which begs the question: “What is a valid prescription?”

Under H&S Code 481.002 (41), A “Prescription” means an order by a practitioner to a pharmacist for a controlled substance for a particular patient that specifies:

(A) the date of issue;
(B) the name and address of the patient or, if the controlled substance is prescribed for an animal, the species of the animal and the name and address of its owner;
(C) the name and quantity of the controlled substance prescribed with the quantity shown numerically followed by the number written as a word if the order is written or, if the order is communicated orally or telephonically, with the quantity given by the practitioner and transcribed by the pharmacist numerically;
(D) directions for the use of the drug;
(E) the intended use of the drug unless the practitioner determines the furnishing of this information is not in the best interest of the patient; and
(F) the legibly printed or stamped name, address, Federal Drug Enforcement Administration registration number, and telephone number of the practitioner at the practitioner’s usual place of business.

To be valid, the prescription must adhere to subsections (A) through (F).

See that there is NO requirements for the PATIENT, only what the Doctor must include for the Prescription to be valid.

Further down, under 481.002 (24), the legislature defines “Lawful possession” to mean the possession of a controlled substance that has been obtained in accordance with state or federal law.

Again, nothing about the manner in which the pills must be carried, just prescribed.

In fact, a text-search (using Ctrl-F) of the full H&S code reveals that THIS is the closest we get to the issue:

Sec. 481.074. PRESCRIPTIONS. (a) A pharmacist may not:

(j) A practitioner or institutional practitioner may not allow a patient, on the patient’s release from the hospital, to possess a controlled substance prescribed by the practitioner unless:
(1) the substance was dispensed under a medication order while the patient was admitted to the hospital;
(2) the substance is in a properly labeled container; and
(3) the patient possesses not more than a seven-day supply of the substance.

Notice that the header notes “A pharmacist may not.” Regulating Pharmacists ONLY. Plus, subsection (2) pertains only to patients being released from a Hospital, and regulates what a Doctor must comply with in prescribing meds to a patient.

Sadly, I’ve seen several case (not my own) being pled to because (some) prosceutors believe the pills must be in the original container from the pharmacy.

Are Class C Misdemeanors able to be Pardoned?

For those convicted of a criminal offense in Texas, a Governor’s Pardon is the only way to attempt to clear the record.* A couple years ago, a person convicted of a Class C offense was unable to petition the Governor’s Office for a pardon.  Now, things have changed.

Class C Misdemeanors in Texas criminal offenses punishable by fines up to $500.  Some offenses can also suspend your driver’s license, and some (like thefts) can restrict or cause a person to lose certain rights. Class C Misdemeanors can also affect Immigration cases and status.

Otherwise, aside from the above mentioned issues, most people don’t give a second thought to Class Cs.  After all, they’re just tickets.

But for some offenses — the ones that look bad on a  background check — a Class C can be just as devastating.

But the good news is the Texas Board of Pardons now allows Class C offenses to be Petitioned for a Pardon, as long as there are no pending cases/class c’s.

The Pardon Petition and Instruction forms no longer list Class C Misdemeanors as one of the “not allowed” categories.  I also called the Board of Pardons and followed up by speaking with a Clemency employee.  He checked with a supervisor and gave the same answer: The Texas Board of Pardons will allow a Class C offense to be Petitioned for a Pardon, as long as there are no pending cases/class c’s.

That phone conversation took place on 11/24/13.

License Suspension & Possession of Marijuana

The vast majority of my clients are suprised to hear that DPS will suspend their Texas Driver’s License if a Possession of Marijuana (POM) results in a Conviction. Not only suspend — but suspend until the 12 or 15 hour DOEP (Drug Offender Education Program) has been completed.

Generally I aim for a dismissal of a POM case, but in certian circumstances a person might not mind the conviction. For instance, if the person previously sustained a conviction for POM or another more serious offense, then it’s fairly likely a POM won’t hinder their life more than whatever was already on their record. (Even in that scenario, I still aim for a Dismissal or Reduction of the POM, if that’s the route the Client requests).

But one scenario sticks out in my mind: My client wanted to enter a plea of No Contest so she could skip doing community service and avoid the DOEP Class. Against my advice, she was persistant, even when Prosecutors offered to drop the community service requirement and only have her do the class. In other words: Complete the 15 hour DOEP Class and the case is dismissed.

She was adamant about avoiding the class, UNTIL I told her that DPS would make her do the class anyway, to get her license back.

Even though she was not driving and was no where near a car at the time of the POM arrest, Texas Law states that a conviction for POM will result in a 6 month Driver’s License Suspension, after which the person’s license will remain suspended until they complete the DOEP Class. So, she took the offer and later called to thank me for ‘talking sense into her.”

What’s more, is that DPS will also charge $100+ in Reinstatement Fees to reinstate your license at the end of the 6 months (or at the end of the DOEP Class, if taken after the Driver’s License Suspension).

So save yourself a License Suspension and some money and Call Us today if you have a pending POM. We can try to avoid both by negotiating or arguing for a Dismissal of the POM, if possible.

Dismissals v. Expunctions: Are they the same?

Expunctions and Dismissals…..  Dismissals and Expuntions….  Which is better? Do you need them both? And is one automatic?  For first time offenders and those not experienced with the criminal justice system (which is a good thing for defendants), Dismissals and Expunctions can be a confusing area.

 Dismissal is one of the ways a case can be resolved.  Typically, the options, once a criminal case has been filed, are:

– Conviction (saying no contest or guilty),
– Dismissal ( Deferred Prosecution, Pretrial Diversion, Deferred Disposition)
– Probation (Regular, Shock, Deferred Adjudication)
– Reductions or 12.45 (No Conviction, but plea accepted on another case)
– No Bill or No file/rejection.

The vast majority of criminal cases end with either Conviction or Dismissal.  For our purposes today, we’ll be discussing only Dismissals.  I will NOT be including Dismissals that occur after successfully completing Deferred Adjudication Probation.

 Dismissal is where the case is terminated without a conviction.  There are many reasons a case can be dismissed, with the most common being In the Interest of Justice, Conviction in Class C case (which is then also Dismissed via Deferred Disposition), or Insufficiency of the #Evidence.  Here in Travis County, it’s common for the Order of Dismissal to also list things such as “Completed community service/class” or “Driver’s License Reinstated.”

Once a case is Dismissed, the proceedings are terminated, and the case is closed.  You’ll have no further court settings, and typically won’t have anything more to do, aside from some arrangements such as Deferred Prosecution, Pretrial Diversion, and Deferred Disposition on a Reduction, where you may be required to take a class or complete community service.

 At this point, if someone were to run a background check, the case would show up as Dismissed.  The background check, depending on who conducted it, might also list a few more details, such as “Dismissed: Deferred Prosecution.”

The background report would remain so until you proactively have the offense Expunged.

Expunction is an added step, and is not included in the original case.  In fact, it’s actually a civil Petition, and not a criminal one, so the expunction would be given a totally different cause or case number.  Although it’s a civil petition, mainly they’re done by criminal defense attorneys.

Expunctions are petitions asking the Judge to Order records of the offense destroyed.  The Expunction Petition includes the defendant’s information and data from the offense.  If granted, the Order directs the State Agencies (police, courts….) as well as DPS and businesses purchasing the data from DPS to destroy the offense from their databases and remove all listings from reports.

There is typically a two year wait on Misdemeanors before you can file for expunction.  The two years begins from either the date of the offense or the date of filing if an Information was used, whichever is later.