Our Services Can Help!
If you are looking to post a bond, we can help with this process. By law attorneys are allowed to post bonds for individuals that we will be representing in court. Since we will also be your attorney, we discount the bond fess that you would normally receive from a bonding company. Bond fees will be determined by, a person’s past criminal history, nature of the charge, prior bond forfeitures and the willingness of someone to sign off as a bond guarantor. And, don’t be fooled by the attorneys who claim that your bond fees will be applied to your attorney fees, it just means they are going to charge you more in attorney fees. If you need a bond call our office 817-280-0923 during business hours or 817-793-7072 for after hours.
- Occupational License
- Drug Offenses
- Assault-Family Violence
- Sexual Offenses
- Juvenile Record Seals
Article 17.01 Code of Criminal Procedure-
“Bail” is the security given by a person accused of a crime to assure that he will appear before the proper court to answer the accusation brought against him. The bond may be a surety bond or personal bond.
The amount of bail to be required in any case is to be regulated by the court, judge, magistrate, or officer taking the bail. A bond amount is to be governed by the Constitution and by the following rules:
- The bail shall be sufficiently high to give reasonable assurance that the person will show up to court.
- The power to require bail is not to be used to keep someone in jail.
- The nature of the offense and the circumstances under which it was committed are to be considered.
- The ability to make bail is to be considered and proof may be taken upon this point.
- The future safety of the victim of the alleged offense and the community shall be considered.
Additional factors may be considered by the trial court in setting the amount of a bond. These include:
- the person’s work record and family ties to the community;
- the person’s length of residency;
- the person’s prior criminal record;
- previous bond conditions fulfilled;
- other outstanding bonds; and
- any aggravating factors in the charged offense.
There are essentially four types of bail bonds:
- the personal recognizance bond, by which the defendant is released solely upon his reputation and promise to appear;
- the personal bond, by which the defendant promises to appear and agrees to pay some amount of money if he fails to appear;
- the cash bond, by which the defendant promises to appear and submits a cash escrow to ensure appearance (refunded when the case is disposed); and
- the surety bond, by which a third party promises to pay some amount if the defendant
(principal) fails to appear.
CHANGING BAIL BOND AMOUNTS
Article 17.09 Code of Criminal Procedure-
When a person has given bail for his appearance in an answer to a criminal charge he will not be required to give another bond in the course of the same criminal action except as herein provided:
- a bond may be found to be defective;
- a bond may be found to be excessive;
- a bond may be found to be insufficient; or
- a surety may be found to be unacceptable.
DISCHARGE OF LIABILITY
Article 17.16 and 17.19 Code of Criminal Procedure-
A surety (generally a bondsman), after notifying the defendant and his attorney may file an affidavit in the court of record to remove himself as the surety. If the court finds there is cause for the surety to surrender the defendant the court shall issue a warrant for the defendant’s arrest.
DRIVING WHILE INTOXICATED
Section 49.04 Penal Code-
A person commits an offense if the person is intoxicated (no mental state required) while operating a motor vehicle in a public place. Intoxication can occur in three different ways. The first is by not having the normal use of your mental faculties because of alcohol and/or drugs; the second, is by not having the normal use of your physical faculties because of alcohol and/or drugs; and the third, is by having an alcohol concentration of 0.08 or greater. Alcohol concentration can be determined in three different ways. It is calculated by the concentration of grams of alcohol in 210 liters of breath; second, in 100 milliliters of blood; or third, in 67 milliliters of urine (Section 49.02 Penal Code).
DRIVING WHILE INTOXICATED WITH CHILD PASSANGER Section DRIVING WHILE INTOXICATED WITH CHILD PASSANGER
Section 49.045 Penal Code-
A person commits an offense if he is intoxicated while operating a motor vehicle and the vehicle is occupied by a passenger who is younger than 15. This charge is a State Jail felony.
Section 49.07 Penal Code-
- A person commits an offense if the person by accident or mistake, while operating a motor vehicle in a public place, while intoxicated, and by reason of that intoxication, causes serious bodily injury to another. This is a Third Degree felony.
If the person injured is a peace officer, firefighter, or EMT personnel then the offense is increased to a Second Degree felony.
Section 49.08 Penal Code-
A person commits an offense if the person operates a motor vehicle in a public place and is intoxicated, and because of the intoxication, causes the death of another by accident or mistake. This offense has a possible punishment of up to 20 years in prison and a $10,000 fine.
If the person injured is a peace officer, firefighter, or EMT personnel then the offense is increased to a First Degree felony.
OCCUPATIONAL DRIVER’S LICENSE
Section 521.242 Transportation Code-
A person may apply for an Occupational Driver’s License (civil version) by filing a verified petition with the clerk of the county court or district court with jurisdiction in the county in which the person resides or the offense occurred. The petition must set out the details of the person’s needs. The judge who hears the petition will determine if an essential need exists for the granting of the Occupational License. The judge will look at such factors as:
the person’s driving record
evidence presented at the hearing
A person may apply for an ODL (criminal version) by filing a verified petition only with the clerk of the court in which the person was convicted if:
the person’s license has been automatically suspended or cancelled for a Texas State law conviction
the person has not been issued, in the 10 years preceding that date of filing of the petition, more than one occupational license after a conviction of Texas State law
Proof of insurance must be presented, and in some situations the hearing can be held without the State’s attorney being present.
COMMERCIAL DRIVER’S LICENSE
Section 522.086 Transportation Code-
A person who is disqualified from operating a commercial motor vehicle may not be granted an Essential Need or Occupational License that authorizes the use of a commercial vehicle
POSSESSION OF PENALTY GROUPS 1 AND 2
Section 481.115 and 481.116 Health and Safety Code-
The penalty range for:
- less than one gram, State Jail felony offense;
- 1 to 4 grams, Third Degree felony;
- 4 to 200 ( Penalty Group1) or 4 to 400 grams ( Penalty Group 2) Second Degree felony;
- 200 to 400 grams, First Degree felony (Penalty Group 1);
- More than 400 grams, 10-99 years in prison and up to $100,000 fine (Penalty Group 1);
- More than 400 grams, 5-99 years in prison and up to $50,000 fine (Penalty Group 2).
POSSESSION OF GROUP 1A
Section 481.1151 Health and Safety Code-
This section has a different method of measuring quantity because it involves the possession of hallucinogenic substances such as LSD (lysergic acid diethylamide). The quantity of a drug possessed is determined by abuse units.
The penalty range for:
- fewer than 20 units, State Jail felony;
- 20 to 80 units, Third Degree felony;
- 80 to 4,000 units, Second Degree felony;
- 4,000 to 8,000 units, First Degree felony;
- more than 8,000 units, 15-99 years in prison and up to a $250,000 fine.
POSSESSION OF PENALTY GROUPS 3 AND 4
Section 481.117 and 481.118 Health and Safety Code-
The penalty range for:
- less than 28 grams, Class A misdemeanor (Penalty Group 3);
- less than 28 grams, Class B misdemeanor (Penalty Group 4);
- 28 to 200 grams, Third Degree felony
- 200 to 400 grams, Second Degree felony
- More than 400 grams, 5-99 years in prison and a fine up to $50,000.
MANUFACTURE OR DELIVERY OF A CONTROLLED SUBSTANCE PENALTY GROUPS 1 AND 2
Sections 481.112 and 481.113 Health and Safety Code-
The penalty range for:
- less than one gram, State Jail felony;
- 1 to 4 grams, Second Degree felony;
- 4 to 200 grams, First Degree felony (Penalty Group 1);
- 4 to 400 grams, First Degree felony (Penalty Group 2);
- 200 to 400 grams, 10-99 years in prison and up to a $100,000 fine (Penalty Group 1);
- More than 400 grams, 15-99 years in prison and up to a $250,000 fine
(Penalty Group 1);
- More than 400 grams, 10-99 years in prison and up to a $100,000 fine
(Penalty Group 2).
MANUFACTURE OR DELIVERY OF PENALTY GROUP 1A
Section 481.1121 Health and Safety Code-
The punishments in this section are based on an abuse unit. An abuse unit is one dosage of the controlled substance.
The punishment range for:
- fewer than 20 units, State Jail felony;
- 20 to 80 units, Second Degree felony;
- 80 to 4,000 units, First Degree felony;
- 4,000 units or more, 15-99 years in prison and a fine up to $250,000.
MANUFACTURE OR DELIVERY OF PENALTY GROUP 3 AND 4
Sections 481.114 Health and Safety Code-
The punishment range for:
- less than 28 grams, State Jail felony;
- 28 to 200 grams, Second Degree felony;
- 200 to 400 grams, First Degree felony;
- 400 or more grams, 10-99 years in prison and up to a $100,000 fine.
POSSESSION OF MARIJUANA
Section 481.121 Health and Safety Code-
The penalty range for:
- less than 2 ounces, Class B misdemeanor;
- 2 to 4 ounces, Class A misdemeanor;
- 4 ounces to 5 pounds, State Jail felony;
- 5 to 50 pounds, Third Degree felony
- 50 to 2,000 pounds, Second Degree felony;
- more than 2,000 pounds, 5-99 years in prison and up to a $50,000 fine.
DELIVERY OF MARIJUANA
Section 481.120 Health and Safety Code-
The punishment range for:
- 1/4 ounce or less, Class B misdemeanor if a payment is not involved;
- 1/4 ounce or less, Class A misdemeanor, if a payment is involved;
- more than 1/4 ounce and up to 5 pounds, State Jail Felony;
- more than 5 pounds and up to 50 pounds, Second Degree felony;
- more than 50 and up to 2,000 pounds, First Degree felony;
- 2,000 pounds or more, 10-99 years in prison and up to a $100,000 fine.
Section 22.01 Penal Code-
Domestic violence offenses are found under the Assault section of the Penal Code. A first time domestic offense is a Class A misdemeanor and a second domestic violence offense can be punished as a Third Degree felony.
Additionally, under certain circumstances a first time offense can be charged as a third degree felony. If a person intentionally, knowingly or recklessly impedes the normal breathing orcirculation of a victim by choking the victim or by trying to suffocate the victim then the offense can be enhanced to a felony level crime.
A “domestic violence” offense is defined as an assault against a defendant’s family member or a member of the defendant’s household. For enhancement purposes, a conviction can include “deferred adjudication” probation or a subsequent discharge from a “regular probation” sentence.
The definition of a “family” member covers a broader swath of individuals than most people would consider. The individuals protected by the Family Violence laws can be found in Sections 71.0021-71.006 Family Code. They include people related by blood or marriage, former spouses, parents of the same child, without regards to marriage, foster child and foster parent, people who are dating and household members either currently together or who have previously lived in the same household.
CONTINUOUS VIOLENCE AGAINST THE FAMILY
Section 25.11 penal Code-
A person commits an offense if during a period that is 12 months or less in duration the person engages in 2 or more family violence offenses against the same person or different people. This is a Third Degree offense.
FALSE INFORMATION ABOUT FAMILY VIOLENCE OR SEXUAL ABUSE-DIVORCE OR CHILD MODIFICATION-
Sections 156.104 and 156.1045 Family Code-
A person commits an offense if the person files a suit to modify an order or portion of a decree based on false allegations of family violence. This is a Class B misdemeanor.
INTERFERENCE WITH EMERGENCY TELEPHONE CALL
Section 42.062 Penal Code-
This offense can occur in many different ways; however, it is during a domestic disturbance this offense most often takes place.
A person commits an offense if the person knowingly prevents or interferes with another’s ability to place an emergency phone call or to request assistance in an emergency from the police, medical facility, or other entity whose primary purpose is for the protection of individuals. An offense is also committed if the person recklessly renders a phone unusable.
“Emergency” is defined as conditions or circumstances in which any individual is, or is reasonably believed by the individual making the phone call to be in imminent danger of serious bodily injury or in which property is, or is reasonably believed by the person making the call in imminent danger of being damaged or destroyed.
VIOLATION OF A PROTECTIVE ORDER
Section 25.07 Penal Code-
A person commits an offense if, in violation of an order under the Family Code Section 6.504 (divorce) or Code of Criminal Procedure Article 17.292 (emergency protective order), he or she knowingly or intentionally:
- commits Assault-Family Violence or a Stalking offense;
- communicates with a person protected by the order in a harassing manner either directly or indirectly;
- communicates by any other means prohibited unless it is done so by his attorney or other person appointed by the court;
- goes near a prohibited place (includes residence, place of employment, child care facility or school); or
- possesses a firearm.
An agreement to get back together made by the person protected by the order does not destroy the validity of the protective order. And if the person protected by the order violates the order she cannot be prosecuted for an offense.
This offense is a Class A misdemeanor unless the person has been previously convicted two or more times under this section or has committed an Assault or Stalking offense while under a protective order in which case the offense can be a Third Degree felony.
It is not a defense that a specific address of a location is not included in the copy of the protective order issued. This information can be omitted under either Section 85.007 of the Family Code or Article 17.292 of the Code of Criminal Procedure.
Section 21.07 Penal Code-
If a person knowingly engages in any of the following acts: sexual intercourse, deviate sexual intercourse (oral or anal sex) or sexual contact (touching of the anus, breast, or genitals of another person with the intent to arouse or gratify the sexual desire of any person) and is in a public place, or if not in a public place, he is reckless about whether another person is present who would be offended or alarmed by this act, he commits the offense of Public Lewdness.
Section 21.08 Penal Code-
If a person exposes his anus or any part of his genitals with the intent to arouse or gratify the sexual desire of any person and the person is reckless about whether another is present who would be offended or alarmed by this act, he can be arrested for Indecent Exposure. Multiple offenses can include sex offender registration.
INDECENCY WITH A CHILD
Section 21.11 Penal Code-
A person commits the offense of Indecency with a Child, if, with a child younger than 17 years of age and the child is not the person’s spouse, the person:
- engages in sexual contact (this includes touching through clothing);
- exposes his anus or any part of his genitals knowing the child is present and the
exposure is done with the intent to arouse or gratify the sexual desire of any person; or
- causes the child to expose the child’s anus or any part of the child’s genital with the intent to arouse or gratify the sexual desire of any person.
If sexual contact occurs, the offense is a Second Degree felony. If the person only exposes himself to the child, it is a Third Degree felony offense.
It is an affirmative defense to this offense if the person accused of the crime is not more than three years older than the victim, of the opposite sex, and the alleged victim acted with consent and the person at the time of the offense was not required to register as a sex offender for life.
Section 22.011 Penal Code-
There are two situations which will be discussed. The first is commonly called “statutory rape.” The second situation is often referred to as “date rape.”
An offense is committed when a person intentionally or knowingly:
- causes the penetration of the anus or female sex organ of a child by any means;
- causes the penetration of the mouth of a child by the sexual organ of the actor (oral sex);
- causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person including the actor (oral sex);
- causes the anus of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor.
There are other possible offenses that involve adults and mentally disabled people. A child is a person 14, 15, and 16 years-old.
AGGRAVATED SEXUAL ASSAULT BY THE USE OF DATE RAPE DRUGS
If a person uses rohypnol (Roofies), gamma hydroxy butyrate (GHB or Geeb) or ketamine to facilitate a sexual assault and the court finds the person administered or provided the drugs to an alleged victim with the intent to help in the commission of the offense it becomes an aggravated sexual offense. The punishment level is a First Degree felony.
AGGRAVATED SEXUAL ASSAULT OF A CHILD
Section 22.021 Penal Code-
This is one of the most serious sexual assault offenses. It is a First Degree felony and carries a possible punishment of up to life in prison and up to a $10,000 fine. This offense occurs when a person commits a sexual act with a person under the age of 14.
PARENT’S DUTY TO NOTIFY OTHER PARENT OF SEXUAL REGISTRATION REQUIREMENT- Section 153.076 Family Code-
If both parents are appointed as conservators of a child the court shall order that each parent has the duty to inform the other parent if the custodial parent resides with for at least 30 days, marries, or intends to marry a person who the parent knows:
- is registered as a sex offender; or
- is currently charged with an offense that requires registration for either a conviction or granting of deferred adjudication for the offense.
The notice requirement must be fulfilled as soon as practicable but not later than the 40th day after the parent begins to reside with the registrant or the 10th day after the date the marriage occurs. The notice must include a description of the offense that is the basis of the registrant’s requirement to register as a sex offender or of the offense with which the potential registrant is charged.
FAILURE TO STOP OR REPORT AGGRAVATED SEXUAL ASSAULT OF A CHILD
Section 38.17 Penal Code-
A person, other than a person who has a legal duty to act, commits a Class A misdemeanor if the person observes the commission of an Aggravated Sexual Assault of a Child and the assault circumstances are such that a reasonable person would know an assault was being committed but fails to assist the child or report the commission of the offense immediately to the police. It is a defense to prosecution for this offense; the actor could not assist or report the offense immediately without placing himself in danger of suffering serious bodily injury or death. This is a Class A misdemeanor criminal offense.
SEX OFFENDERS REGISTRATION PROGRAM
Article 62.01 Code of Criminal Procedure-
A reportable conviction or adjudication for sex offender registration means a conviction or adjudication, regardless of the pendency of an appeal, that is:
- a conviction for Indecency with a Child, Sexual Assault, Aggravated Sexual Assault, Prohibited Sexual Conduct, Compelling Prostitution, Sexual Performance of a Child, Possession or Promotion of Child Pornography, Aggravated Kidnapping Sexual Intent, Burglary Sexual Intent, or Attempt, Conspiracy, or Solicitation of the above offenses.
A DEFERRED ADJUDICATION FOR THE ABOVE LISTED OFFENSES IS CONSIDERED A REPORTABLE CONVICTION OR ADJUDICATION FOR THE PURPOSES OF SEXUAL REGISTRATION.
- the second conviction for a violation of Indecent Exposure;
- a conviction under the laws of another state or Uniform Code of Military Justice for an offense where the elements are substantially similar to Texas sexual offenses; and
- the second conviction for an offense in the Uniform Code of Military Justice that is
substantially similar to Indecent Exposure.
A person who resides in Texas, but works or goes to school in another state, which has a sex offender registration statute, must register with the appropriate local law enforcement agency of that state.
A person who resides in another state, who is subject to registration, must register in Texas if that person is employed, carries on a vocation, or is a student in Texas. The newspaper publication is not necessary.
SEX OFFENDER REGISTRATION
Articles 62.02, 62.021, 62.04 and 62.09 Code of Criminal Procedure-
A person who has a reportable conviction or adjudication for a sexual offense will register with local law enforcement authority in any municipality or county where the person resides or intends to reside for more than seven days. This includes a person who is required to register under the laws of another state, federal law or the Code of Military Justice. However, the duty to register for an out-of-state offender ends when it would have ended in the other state. The registration form will include:
- the person’s full name, each alias, date of birth, sex, race, height, weight, eye color, haircolor, social security number, driver’s license, shoe size, and home address;
- a photo of the person and a complete set of fingerprints;
- the type of offense committed, the age of the victim, date of conviction, and the punishment received;
- the current status of the defendant’s release;
- any other information required.
If the victim of an offense is a child younger than 17 years-old, and the basis of the registration is not an adjudication of delinquent conduct (juvenile conviction) or a deferred adjudication and is not a conviction for Prohibited Sexual Conduct, the police shall immediately publish notice in English and Spanish in at least two newspapers in the county where the person intends to reside. In all circumstances where the victim of an offense is less than 17 years-old the superintendent of the public and private school districts where a sex offender resides will be notified by the police of the offender’s location. The following information can be included in the newspaper:
- the person’s age and gender;
- the person’s photograph;
- a description of the offense; and
- the place, street name, and zip code where the person will live.
Probation, a penal institution, or local law enforcement may release to the public information regarding a person required to register if the information is public information.
Note: An Attorney General opinion from 1998 concludes that a juvenile who transfers into Texas from another state is not required to register as a sex offender under Texas Law. However, a juvenile may be required to register in Texas under the other’s state law.
EXEMPTION FROM REGISTRATION FOR CERTAIN SEX OFFENDERS
Article 62.0105 Code of Criminal Procedure-
A person who is required to register as a sex offender may petition the court having jurisdiction over the case for an order exempting the person from registration at any time after the person’s sentencing or after the person is placed on deferred adjudication probation.
A person is eligible if:
- the person is required to register only as a result of a single reportable conviction or adjudication, other than an adjudication of delinquent conduct; and
- the court has entered in the appropriate judgment or has filed with the appropriate papers a statement of an affirmative finding that at the time of the offense the defendant was younger than 19 years-old, the victim was at least 13 years-old, and the sexual offense was consensual.
A person who was convicted or placed on deferred adjudication before 9-1-01 for a registration-type sexual offense is eligible to petition the court for a sexual registration exemption. The court may consider the petition only if the petition states and the court finds the person would have been entitled to an affirmative entry based on of the defendant and victim’s ages if the conviction or deferred adjudication would have occurred after September 1, 2001.
At the hearing it must be shown by a preponderance of the evidence that:
- the exemption does not threaten public safety as presented by a registered sex offender treatment provider; and
- the person’s conduct did not occur without the consent of the victim or intended victim.
Section 31.03 Penal Code-
A person commits an offense if he unlawfully appropriates (takes) property with the intent to deprive the owner of his property.
Appropriation of property is unlawful if:
- it is without the owner’s effective consent;
- the property is stolen and the actor appropriates the property knowing it was stolen by another; or
- property in the custody of any law enforcement agency was explicitly represented by any law enforcement agent to the actor as being stolen and the actor appropriates the property, believing it was stolen by another.
The offense levels for Theft vary depending on the value of the items or services stolen. If the value of the property, other than Theft by Check, is:
- less than $50 it is a Class C misdemeanor;
- between $50 and $500 then the punishment level is a Class B misdemeanor;
- between $500 and $1,500 it is a Class A misdemeanor offense;
- between $1,500 and $20,000 it is a State Jail felony offense;
- between $20,000 and $100,000 it is a Third Degree felony;
- between $100,000 and $200,000 it is a Second Degree felony; and
- More than $200,000 it is a First Degree felony.
THEFT OF SERVICE
Section 31.04 Penal Code-
A person commits Theft of Service if, with the intent to avoid payment for service he knows is provided only for compensation, he intentionally or knowingly secures performance of the service by deception, threat, or false token.
THEFT BY CHECK
Section 31.06 Penal Code-
This is a very common criminal offense. It is often the failure of a person to change his address on his driver’s license or check which causes a person to receive a Theft by Check charge. It is presumed that a person intended to dishonor their check when he does not have an account with the bank at the time the check was issued or payment of the check was refused by the bank for lack of funds or insufficient funds, within 30 days after the issuance of the check.
The person receiving the check must give the writer of the bad check written notice the bank has failed to honor the check. The writer of the bad check would then have 10 days to pay the check in full.
A very similar offense to Theft by Check is Issuance of a Bad Check.
ISSUANCE OF A BAD CHECK
Section 32.41 Penal Code-
A person commits an offense if he issues or passes a check knowing the issuer does not have sufficient funds in the bank. It is presumed a person knew he did not have the funds to pay the check if he did not have an account with the bank, or the payment of the check was not honored within 10 days of receiving notice of the insufficient funds in the account. This is a Class C misdemeanor offense.
In both a charge of Theft by Check and Issuance of a Bad Check the writer of the check must be notified of the failure of the check to be honored. The difference is, in a Theft by Check offense, the notice must be given by registered mail while in the Issuance of a Bad Check case, notice can be sent by first class mail. In both situations the notice must include the following statement in the demand letter: “If you fail to make payment in full within 10 days after the date of receipt of this notice, the failure to pay creates presumption for committing an offense, and this matter may be referred for criminal prosecution.”
EXPUNCTION OF CRIMINAL RECORDS
Article 55.01 Code of Criminal Procedure-
An Order of Expunction is the more beneficial of the two methods available to eliminate public criminal records. Six common types of expunctions are obtainable. They are expunctions based on acquittals (not guilty verdict) and pardons, expunctions which are approved on the grounds that criminal charges were either dismissed or No-Billed, waiting period expunctions, pretrial intervention expunctions, expunctions which are granted to a person who was the victim of identity theft and discretionary expunctions.
You may not expunge criminal arrest records which are based on community service (probation) revocations. Additionally, a person who intentionally or knowingly absconds from the jurisdiction after being released on bail following an arrest is not eligible for an expunction of his or her criminal records and files relating to that arrest unless the person is acquitted or pardoned for the offense, the case was dismissed for lack of probable cause, or if the prosecutor recommends an expunction.
Criminal arrest and conviction records are not automatically eliminated after a certain amount of time has elapsed. This includes cases which are dismissed, as well as, cases where a person has been found not guilty. You must actively seek to eliminate your criminal records to have them removed.
ORDER OF NONDISCLOSURE
Section 411.081 Government Code-
An often misunderstood provision of the Texas Penal Code and Code of Criminal Procedure is the outcome of a case which is disposed of by the use of deferred adjudication probation. Very often a person who is successful in completing his or her deferred adjudication probation believes that since the offense did not result in a final conviction, the case will not be part of his permanent criminal history. While the person would be sadly mistaken, the legislature in 2003 did adopt procedures to limit the access to these records. The procedure is an Order of Nondisclosure. (Government Code Section 411.081)
Five requirements are necessary to be considered for an Order of Nondisclosure.
- The person was placed on deferred adjudication probation under Code of Criminal Procedure 42.12 Section 5;
- The person subsequently received a discharge and dismissal under this same section;
- The person filed his or her petition after the applicable (if any) waiting period;
- During the period of deferred adjudication and any waiting period, he or she was not convicted of or placed on deferred adjudication for any offense other than a Transportation Code fine only offense; and
- The person was not placed on deferred adjudication and has not previously been convicted or placed on deferred adjudication for certain listed serious offenses.
Section 51.01 Family Code-
The juvenile court has jurisdiction (control) over cases involving children between the ages of 10 to 16 years of age and 17 year-old adults who have allegedly, or who have been found to have engaged in delinquent conduct for acts committed before the child was 17 years-old.
The court also has jurisdiction over what is referred to as “status offenders,” which is a child who is accused, adjudicated, or convicted of conduct that would not, under Texas law, be a crime if committed by an adult. This includes such offenses as truancy, running away, failure to attend school, curfew and school student conduct.
SEALING OF JUVENILE RECORDS
Section 58.003 Family Code-
A juvenile shall have his misdemeanor juvenile records sealed if the court finds:
- two years have elapsed since final discharge of the child or since the last official action in the child’s case if there was no adjudication; and
- the juvenile has not been convicted of a felony or misdemeanor involving moral turpitude or found to have engaged in delinquent conduct, and no proceeding is pending seeking a conviction or adjudication.
A court may not order the sealing of the records of a child who has received a determinate sentence for engaging in delinquent conduct defined in Section 53.045 of the Family Code. This section involves violent and habitual felony conduct. A court may order the sealing of records concerning a person who was adjudicated of a felony offense other than Section 53.045, only if:
- the child is now 19 years old or older;
- the child was not transferred to the adult court for the matter;
- the records have not been used as evidence in the punishment phase of a criminal court for prosecution (Section 37.07 Section 3(a) Code of Criminal Procedure); and
- the person has not been convicted of a penal law of the grade of felony after becoming 17 years of age.
The court may grant the relief authorized at any time after the final discharge of the person or after the last official action in the case if there was no adjudication.
If the child is referred to the juvenile court for conduct constituting any offense and at the adjudication hearing the child is found not delinquent of each offense alleged, the court will immediately order the sealing of all files and records relating to the case. On the granting of a motion to seal juvenile records all law enforcement, prosecuting attorneys, clerk of court, and juvenile court records ordered sealed will be sent to the court issuing the order. All index references to the records ordered sealed will be deleted. All agencies will properly reply that no records exist with respect to the child and the adjudication will be vacated and the proceedings dismissed and treated for all purposes as if they had never happened. A child whose records have been sealed is not required in any proceeding or in any application for employment, information, or licensing to state that he has been the subject of a juvenile investigation in the juvenile court. And any statement made by the person that he has never been found delinquent of any offense cannot be held against him in any criminal or civil matter.
The records can only be opened if the child is later charged with a capital offense or the prosecuting attorney may, on an application to the juvenile court, reopen at any time the sealed records of a child adjudicated as having engaged in delinquent conduct that violated a penal law of felony grade for the purpose of felony enhancement punishment. A person who applies for a concealed handgun license may also have his juvenile records opened and inspected.
On the motion of the child or by the court’s own motion, the court may order the destruction of records that have been sealed if:
- the conduct involved did not violate a penal law of the grade of felony or a misdemeanor punishable by confinement in jail;
- five years have elapsed since the person’s 16th birthday; and
- the child has not been convicted of a felony.
The court will order the destruction of the records relating to the conduct for which a child is taken into custody including records contained in the Juvenile Justice Information System, if:
- a determination is made that no probable cause exists to believe the child engaged in the conduct and the case is not referred to a prosecutor for review; or
- a determination is made by the prosecuting attorney that no probable cause exists to believe that the child engaged in delinquent
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