Being Trans in Texas Prisons: Texas Needs to Do Better

Recently the LGBT legal advocacy organization Lambda Legal settled a case with the Texas Department of Criminal Justice (the agency that administers the penitentiaries in Texas that hopefully will have a positive effect on how Trans prisoners are treated in Texas.

Passion Star was sentenced to a term of confinement in Texas. She is a trans woman. What happened next during her confinement is horrific but all too common. Housed in a male unit yet presenting as (and being, yes, being) a woman, Ms. Star was repeatedly raped and brutalized by the men with whom she was housed.

The stats don't lie. This is the story for trans women in prisons.

The correctional guards and ultimately TDCJ's response was also typical. They ignored her request for help. She also reports that she was re-victimized by CO's who humiliated her and told her to "stop acting gay" if she did not want to be raped.

TDCJ's policy for years, and is currently, to house trans women with men. It does not seem to matter if they have had name and gender marker corrections done to change their gender marker legally to female. It does not seem to matter if they've had any kind of SRS.

Star was also denied secure housing even after the attacks started. Ultimately another prisoner slashed her face with a razor for "snitching".

Lambda Legal said in their announcement that the settlement was agreeable to all parties and also includes a monetary payment for Star and training of prison staff to better protect LGBT people in Texas prison facilities.

My ultimate thoughts on this:

1. TDCJ has agreed to count LGBT inmates much earlier to determine if housing assignments can be made to reduce violence against those prisoners. This is important. However, LGBT inmates should not be "outed" by COs. They should not necessarily be labeled LGBT and then dropped in general population. That idea to protect them may backfire and cause them to be more readily identified by prisoners that will harm them.

2. Special housing is great, and may very well be a solution to the issue. However, segregated custody is not an acceptable solution. Solitary is itself a dangerous, punitive method that an LGBT prisoner should not be subjected to to "keep them safe". Special housing units must also be given the same programming -- substance abuse counseling, mental health treatment, HIV/AIDS treatment, and job training and reentry programming must be made available to all special housing units.

3. TDCJ must stop penalizing gender non conformity. Length of hair requirements, denial of certain hygiene and cosmetic products, and denial of certain items of clothing must end.

4. TDCJ MUST HOUSE WITH GENDER IDENTIFICATION NOT "BIRTH" GENDER. Period. Trans women must go with women. Trans men should be able to choose which housing unit to go to and be allowed to go with men if they choose. (I'm only saying that because trans men may be vulnerable in a male unit. They may also feel vulnerable in female units.)

5. ULTIMATELY -- Texas needs to stop sending so many people, including queer and trans people, to prison. We can safely access alternatives to incarceration. We also need to decriminalize lots of things that queer people may do to survive, including the drug trade, shoplifiting, and sex work.

Its not safe to be trans in this world, but its much more dangerous in prison and TDCJ needs to do better. I hope this is a start.

#queer #trans #lgbt #lgbtq #prison #texas #law #lawyer #gnc#criminaljustice #criminaljusticereform

Five Ways to Stay Out of Trouble in 2018

Five ways to stay out of trouble in the New Year:

Happy New Year!! I hope you have a prosperous, peaceful one. It is no one’s goal to get arrested and charged with a criminal offense in ANY year, and to that effect I am going to give you five ways you can avoid an arrest this year:

1. Do not drive with marijuana in your car:

I do not suggest being a heavy user of marijuana. It is not the best path to prosperity and productivity. However, if you are going to use marijuana in any quantity, keep it at your home, locked away safely. Driving with it is a very bad idea because the scent of marijuana gives a police officer probable cause to search your car and/or prolong the detention long enough to call a K9 to do a sniff-search. If the marijuana is found, you will be charged with possession of marijuana. If you must drive with it, limit the times you do this and only do it when it cannot be avoided. When you drive with it, keep it an air tight container out of view, or even invest in a portable vacuum sealer to seal it up before driving. NEVER SMOKE MARIJUANA IN YOUR CAR.

2. Always have a safe ride home after drinking:

If you are going to drink alcohol away from your home, always, always arrange for a sober (completely sober – not just “not that drunk”) ride home. Take a cab, have a designated driver, take a ride share, or take a means of public transportation. Arrests for DWI are increasing nationwide, and even if you are not truly intoxicated and have only consumed a limited amount of alcohol, it is an arduous undertaking to beat a DWI. It is also expensive.

3. Do not gamble at shoplifting:

You may not get caught every single time if you are a habitual shoplifter. But you will get caught eventually. Shoplifting charges are embarrassing, a pain to dispose of, and will disqualify you from many, many jobs.

4. Do not drink to the point of oblivion in public:

Public intoxication arrests are common. If you get very intoxicated and start causing a scene around a police officer, or if you are intoxicated and cannot seem to find your way home, you will probably get arrested for public intox. APD uses these as a “end the situation” type of arrest – if they don’t know what else to do with you but they have to figure out something because you can’t stay out on the street due to your intoxication – they will take you to jail for Public Intoxication.

5. Do not stay in toxic relationships:

If you are in a toxic, dangerous relationship – GET OUT. Do it as soon as you can safely. Yelling, verbal abuse and emotional abuse will lead to physical abuse and this will lead to intervention by the system. Even if you call the police because you are the one being abused, it is not always the case that the police arrest the right person. Sometimes they mistake defensive injuries as the primary injuries and arrest the person that was the actual victim. If you need resources, call the Domestic Violence Hotline.

I hope that all my clients, my potential clients, and their friends and family can have a peaceful year this year and stay out of the system. It is so time and resource consuming to get arrested over and over again, so be smart and employ these strategies above so you can stay free this year.

Happy New Year from Stefanie Collins Attorney at Law.

Holiday Wish List

Holiday Wish List for Criminal Justice Reform:

As it is Christmas, I wanted to send a word of hope to my clients and the community.  Christmas is a time for generosity, second chances, and peace.  I am reflecting on how we make the system work for the community, making our communities safer, and ensuring that justice is done.  I think it is becoming a commonly held idea that our system needs reform and we need to back off the idea that we need to completely ruin someone to keep our community safe.  I think the Texas legislature, which is going into session in January, need to hear from those of us who want common sense reforms.

There are five reforms I wish for this season:

1.       Reform fines and fees to make them proportionate and allow a means to dispose of fines and fees if a Defendant is indigent:

It is not fair to make poor people decide between paying a fine or fee and paying a bill or the rent.  We need to have real means by which to reduce indigent people’s fines and fees through income evaluation and sliding scale payments.  We need to also be sensitive to realities that limit poor people’s abilities to do community service and we should not saddle people with hundreds of community service hours they cannot realistically do to “give them a chance”.  Chances need to be real, not ephemeral.

I also am a very staunch advocate of an abolition of the Drivers’ Responsibility Program (surcharge program).  I believe this does nothing but penalize unsophisticated, poor people and is a back door tax on the people in the state who can least afford it.  It makes us less safe by disqualifying people from insurance coverage and the regulation and licensing of them as drivers. 

2.       Decriminalize drugs and provide access to treatment and services to address addiction and mental health:

I think one thing Texas could do this legislative session to better the system for everyone would be to move every category of possession down one level of offense.  This means that a Class B possession of marijuana would become a fine only Class C offense, state jail felony less than a gram of cocaine would be a Class A misdemeanor, etc.  That is a very common sense decriminalization regime that would put in place lifesaving and cost saving measures right away.

Also, this legislative session, Texas could fund at a meaningful level addiction treatment and mental health treatment.  We have people waiting in line for months to get services, get an appointment with a doctor, etc.  We need to give people meaningful access to these services so they can better their lives and exit the system healthy and with a path forward.

3.       Provide meaningful opportunities for youth:

I honestly believe that most young people do not choose a criminal path because it is ideal and glamorous.  Maybe a minority do, but it becomes ideal through social and environmental conditioning, not because there’s just some “bad” kids.  We need to expand education and job opportunities for kids in our communities.  Rural and urban kids both need this.  I do think better and more trade schools will help, but it also needs to be meaningful opportunities to go to college for kids who could be high achieving academically.  Kids need to be given the tools they need stay in school. 

Setting expectations for kids to stay in school and pursue a productive path along with making those expectations real by providing the opportunities will go a long way to reducing the amount of kids who become involved with the system.  Knowing they are expected to follow a productive path and not be given the impression that s/he is a “throw away kid”, while giving them the resources,  makes that criminal path less attractive.

4.       Help formerly incarcerated to Re-Enter:

Recidivism is high.  Maybe one of the biggest predictors of incarceration is prior incarceration.  We need to prepare people on the inside for Re-Entry to the free world with training and education programs, mental health services, and counseling services to help them become better workers, parents, and citizens.

We also need to have community dialogue around the barriers we create to Re-Entry.  We need to have some common-sense reevaluation of privately erected barriers to housing and jobs.  Is it productive to ensure that someone incarcerated for simple possession cannot rent an apartment in many urban areas in Texas?  Is it productive to refuse to hire anyone with a felony conviction? I don’t believe that a prior felony should be a red-line barrier to these opportunities – people need to be evaluated based on the real risk THAT individual poses to the community and his or her skills and abilities.  We are preventing an entire, rather large class of people from reentering the community and therefore we are having more people dependent on the safety net, not able to model work and productive activity to their children, and not able to contribute to the economy and society. 

I think we also need to move to repeal laws that prevent people with certain convictions from getting aid to go to school. A felony conviction for drugs should not ban you from federal student aid for life – not when being a rapist doesn’t.

I am hopeful that the Texas legislature will not pass a bill prohibiting cities like Austin from banning questions about criminal history during the initial job application process.  This is common sense to allowing people to reenter. 

5.       Pass laws that allow people to expunge or seal their records:

Right now, you must have a very good outcome – a dismissal or an acquittal – to get an expunction in Texas.  You must have completed a deferred adjudication successfully to get your record sealed of that offense.

This saddles people with records of decades old convictions, even for minor stuff.  I do not think that most anybody should be judged on their convictions from twenty or thirty years ago.  People should get a second chance if they can prove through their actions that their run in with the system was a one time mistake. 

Some states, even some conservative states in the South, have much more liberal expunge/seal laws and allow people with certain kinds of convictions to expunge them after demonstrating reform and compliance with the law for a certain period after the conviction.  I do not see why Texas cannot do the same.  We are losing a wealth of talent when people with a minor conviction cannot ply their trade or contribute at a job because an employer won’t hire after looking at a background check.

Texas needs to invest in its people more and in the correcting of minor behaviors less.   Our people need opportunities, not mass incarceration.  We need to end debtors’ prisons and programs that hold people in a cycle of fines, fees, and warrants. 

We need to exercise some humility and compassion too.  After people pay their debts, we need to extend them a second chance and allow them to re-enter our greater society.  Anything else fails us as a community and them as individuals.

Merry Christmas from Stefanie Collins, Attorney at Law.  Be kind to each other this season. 

Happy Holidays: Keep Calm, Have Fun, Don't go to Jail

Happy Holidays: Keep Calm, Have Fun, Don’t Go to Jail

This is going to be short. I have spent most of this evening decorating, watching Christmas movies, and eating Candy Cane Hershey Kisses.

This time of year is wondrous. People are nicer, our homes and the stores are decorated, and people are giving each other gifts. We get to spend time with friends and loved ones. It’s great. 

However, it is no coincidence that lots of people go to jail at this time of year. Be sure it’s not you.

DWI arrests increase during this time of the year. People are at holiday parties, happy hours, and holiday events at which alcohol is being served in great quantities. People may also be using drugs. This is particularly true on New Year’s Eve. People make mistakes and get behind the wheel. It is really important – for your own safety, the safety of others, and to avoid arrest – that you make alternative arrangements to get home safely. Lots of bars give taxi vouchers and there are ride share services that are easy to use. It’s not true that ride share has completely left Austin. Make arrangements to get home – have a plan – before you go out.

If you are sober and/or in recovery, this time of year is very stressful. Lots of people relapse. Go to a meeting if you feel like you are in trouble or thinking about using. If you relapse, you may overuse and put yourself in danger of arrest. Overdoses are frequent with people using again after a long period of sobriety. 

Seeing family is stressful for some people. It may lead to an increase in substance use if you have stress around seeing family or not seeing family. In the LGBT community, some people can’t go home and may feel very alone on the holidays. This may lead to increased substance use. Again, if you are feeling prone to using or overusing, go to a meeting or reach out to a trusted person.

Stress around money is high during the holidays. Substance use is high. We are seeing family. This leads to tempers flaring in some families and this leads to many, many arrests for assault – family violence. Again, having a plan is crucial. If you are going to be around a family member that you know gets under your skin, have a plan that you will follow if things get tense. Do not use substances around this person. Plan to leave and leave safely if things get heated. If you are in a pattern of family violence and you are the aggressor, you need to get help and most likely take steps to remove yourself from the person you are assaulting before you do the unthinkable. If you are being assaulted, you need to contact services in your area to develop a plan to get away from that individual before you get seriously hurt or worse. 

The holidays are great but it brings issues with family and life in general in focus, and this can lead to a great deal of stress. This is turn leads to behavior that can get you arrested. Think about things prior to them getting out of hand, and have a plan on what to do if you feel like the holiday stress is getting the better of you.

Jail is a terrible place to spend Christmas or ring in the New Year. Don’t start off 2017 with a court date. Do what you can now to make sure you have a happy and healthy holiday and new year.

#happyholidays #christmasarrests #christmasinjail #assault#assaultfamilyviolence #familyviolence #dwi #arrest #sobriety #drugs#stress #family

Bond Fofeiture and Civil Suit: What Happens When You Don't Show Up to Court

Bond forfeiture and bond forfeiture set-aside

If you have been charged with a crime, and you have been given a court date, there are consequences if you do not appear at that court date.  I will talk about those consequences here.  I am going to talk about Travis County with specificity and other counties in Texas generally.

If you are charged with a Class B misdemeanor or higher in Travis County, you may be released from jail on either a personal bond or on a surety bond by going through a bail bondsman.  With either of these options, you will be given a subsequent court date and ordered to appear.  You should not expect your case to be resolved at this court date.  In Travis County, the first and often the second court date is handled by Court Administration, a department in the county that handles many administrative matters for the criminal courts.  These are called “first” and “second first” settings and they are not assigned to an actual court.  If you have an attorney, that attorney can handle your first court dates in Court Administration.  If you do not have an attorney and wish to apply for a court appointed, you should appear at these court dates and ask for the court appointed attorney.  After these first settings, you will be assigned to a court and told to return on a new date.  After you are assigned to a court, you will be given a series of court dates in the court.  Your case will generally take six months to a year to work out, and you will have a court date about once a month.  If you are charged with a misdemeanor, your attorney, whether hired or appointed, will be able to “reset”– ie get you a new date – your case the first several times your case is on the docket.  If you are charged with a felony, in most courts you will be required to appear every time.  In some, you are not required to appear until after you are indicted by the grand jury.

If you are not required to appear, your attorney still has to reappear to reset you.  If you are required to appear, then you and your attorney must appear in the court to reset you and get you a new date.  If you have a court date and no one appears to reset you, the court will usually enter what’s called a “bond forfeiture”.  This is not good and can have serious consequences.  Within a few days of a bond forfeiture being entered, a “capias” – ie a warrant for your arrest – will issue.  Also, within a few weeks of a bond forfeiture being entered, the civil division of the Travis County Attorney’s Office will file a civil suit against you personally if you were a released on a personal bond.  The civil suit will seek the full amount of the bond in damages. 

If there is a capias out for you, you can be arrested on it just like any other kind of warrant.  If you were released on surety bond, the bail bonds company that secured your release will likely seek to arrest you themselves, which they have the power to do under Texas law. 

If you have missed a court date, you need to be very proactive about getting your case back on the docket.  You should not wait and hope for the best.  Waiting can worsen the damage done by the bond forfeiture.  You may want to contact your attorney or hire another one.

If a bond forfeiture has been entered by the court, in Travis County an attorney can do what’s called a “bond forfeiture set aside”.   This is a motion done by an attorney to essentially undo the bond forfeiture.  If the motion is granted and the order is signed by the judge, a new date is given for the case to be set on the court’s docket.  The capias will be recalled.  If a civil suit has not yet been filed, it will stop the civil suit from being filed by the County Attorney. 

If a civil suit has already been filed prior to a bond forfeiture being done by an attorney, that complicates the process a bit.  A set aside will not have the same effects, as a civil suit has already been filed.  The judge may want you to settle the civil suit first before putting the case back on the docket and recalling the warrant.  This generally costs about $300 for a misdemeanor.  The judge may also mandate that you substitute a new personal bond in for the old one that has been forfeited by doing a walk-through at the bonding desk and being released on the new bond.  Sometimes, the judge will recall the warrant, give you a new date, and reinstate the old bond and leave you to settle the civil suit at a later date.

If the case is resolved after a bond forfeiture but prior to a civil suit being filed, the attorney still needs to do a bond foreiture set aside to stop the civil suit from being filed.

If you have a case pending and have not heard from your attorney in some time or have not been told to come to court, or ifyou know for sure you have missed a court date, do not wait.  Call an attorney and find out what’s going on your case before you get arrested on a capias.  I am available to help with bond forfeiture set asides. 

Pitfalls of Probation: What You Need to Know BEFORE You Sign Up

Sometimes, probation is a great offer on your case. If you are offered probation on a serious felony in which a long prison term is also an option under the law, you need to seriously consider taking it despite the multiple restrictions on your freedom you will experience.

However, on misdemeanors and state jail felonies, it’s a different story. You may be better off pleading to a short term in jail to finish the case. Or, in the alternative, if you are offered a reduction or a dismissal in exchange for doing something, like a class or a community service, you need to do it to avoid probation.

There are many, many pitfalls to probation. Many people approach probation as if it is an easy way to avoid jail or get out of jail quickly if you are in jail pretrial, but this is absolutely not the case and you need to rid yourself of this assumption. Probation is not easy and you have the threat of jail hanging over your head the entire time.

When you are on probation, you are seriously restricted in your freedom in many, many ways. You are given certain requirements and certain policies by which you must abide, and if you fail to do so your probation officer is going to file what is called a “motion to revoke probation”. Once this motion is filed, it will generate a warrant. You are usually given a no bond on that warrant, meaning you will not be allowed out on any type of bond. If a judge chooses to set a bond, it is really, really unlikely you will be allowed out of jail on a personal bond. If you cannot get a surety bond, you will be in jail until the motion to revoke probation is resolved.

I will discuss three common ways you might violate your probation:

• Committing a new offense: You will get a motion to revoke probation filed if you commit a new offense of a Class B misdemeanor or above. Do not think under any circumstances that your probation officer is “cool” and will not file a motion if you get arrested again. S/he will and you will go back to jail even if you are released on the new offense already. If you cannot make bond on the new offense, then you will be held on the motion to revoke and the new offense.

• Drug and alcohol use: It is absolutely a violation of your probation to use alcohol at all or any kind of illicit drug or prescription drug if it is not prescribed to you. If you go into a probation meeting looking like you are intoxicated or hung over, the probation officer is going to test you – and if you test positive s/he is going to file a motion to revoke. There is no room for just a single positive test.

• Absconding or missing meetings with no phone call or attempt to reschedule: missing meetings with your probation officer is not allowed. If you miss meetings and make no attempt to reschedule, you will get a motion to revoke filed.

I get many phone calls from people who want off probation and tell me that “they did not realize this is what they were getting into” when they pled to probation. I represent many clients on revocations of probation. Probation is not an easy path. Jail sounds like a terrible fate, but it is important to remember that you may go back to jail anyway if you are filed on for revocation.

If you are facing a probation revocation, call me today to talk about the possibilities of how to resolve your case.

Jury Trials: Lessons Learned

I have tried three cases in the past month.  Two of my juries returned a guilty verdict in spite of what I thought was enough to create reasonable doubt in the state’s case. 

I talked to the juries afterward.  It was pretty clear to me from what they said and their body language that they were left with some residual doubt about my client’s guilt – not “unreasonable doubt” like the state says in their closing arguments or a “possible doubt” but a real doubt. 

It was also pretty clear to me that they had expected my client and I to not only introduce doubt into the equation but “prove” our case somehow, despite the court’s instruction that that was not our job.

I say all this to point out two things:

If you are called to jury duty and you are selected to be a juror on a criminal case,  you need to commit yourself to returning a not guilty verdict, IN SPITE OF YOUR EMOTIONS, if the state does not prove its case BEYOND ALL REASONABLE DOUBT.  If you are left at the end of the case “not sure what happened” or “could see that he (the Defendant) may not be guilty” (actual words of my jurors this past month – who convicted) you HAVE to acquit the Defendant.  It doesn’t matter if you feel like what happened was wrong, upsetting, or immoral.  Unless the state has proved it to you, you have to put those emotions aside and cannot make the Defendant pay for what happened. 

If you are a Defendant, you need to be aware of the risk you are taking by having a jury trial.  Sometimes there really is no downside (there wasn’t in any of my cases this month), but sometimes there is.  You may be risking decades more in prison.  You may be turning down a deferred adjudication.  These are real risks.  And your jury may not be convinced. Your jury may doubt your guilt.  AND THEY MAY CONVICT ANYWAY.  You can never be sure what a jury is going to do.

Lastly, this may be controversial but I cannot help but notice, that both of my “guilty” clients were people of color and my not guilty one was white.  It is not out of the question that this played into the jurors decisions. 

Just some things to think about.  Please, if you are called for jury duty and feel like you cannot be fair – and cannot acquit if the evidence does not prove the case beyond all reasonable doubt – tell the attorneys who question you.  If you can be fair, if you can hold the state to its burden, and can acquit if the case calls for it – don’t think up an excuse to get off.  We need you to make this system work and stop bad prosecutions.

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What is deferred adjudication?

What is a deferred adjudication?

Deferred adjudication is a common way of resolving criminal cases in Texas, but it is often misunderstood. I will attempt to correct some common misconceptions.

What it is:

A deferred adjudication in many counties must be offered by the state in plea negotiations – that is just the county custom -- but it is possible for a judge to place you on deferred adjudication as well.

In a case in which someone has been offered deferred adjudication, the defendant will plead guilty to the allegations in exchange for the finding of guilt to be “deferred” by the court for a period of time. It is a guilty plea -- it is not a dismissal of the case. The court will find that there is enough evidence to substantiate the defendant’s guilt but if the court goes along with the state’s recommendation of deferred adjudication or on his own volition decides to, the conviction will not be entered.

You waive your constitutional rights when entering into a deferred adjudication. You waive your right to a trial, a right to appeal, and a right to remain silent, and these rights cannot be restored. You cannot be on deferred for a year and then decide you want a trial --- that ship has sailed and you cannot change your mind.

If there is strong evidence of guilt, a deferred can be a good resolution, but if it is a weak case, you may want to go ahead and press for a trial. A deferred adjudication is a serious undertaking. Why? Because when a conviction is deferred, you are placed on a tough probation. You must abide by all the standard terms of probation, such a drug and alcohol monitoring, meeting with a probation officer, performing community service, and classes and counseling. It is not fun, and it is not easy.

If you do not do well on this deferred probation, you will be subject to a “motion to adjudicate guilt” outlining why you no longer deserve to have a deferred and why a conviction should be entered. This motion causes a warrant to issue, but you are entitled to a bond amount being set by a judge. Most judges are very slow to give personal bonds on a probation case, so you are looking at having to bond out with a bail bonds man.

If you plead true to these allegations in the motion to adjudicate, you may be continued on a deferred, but you also may be convicted and placed on a “straight” probation OR you may be placed in the penitentiary.

NOTE: Deferred adjudications that are done successfully are NOT automatically sealed. Many times, you are eligible for the case to be sealed, but it is not done the minute you are released. You must petition for it and get a court order in a separate styled case. Once it is sealed, law enforcement and the state’s prosecutors will still be able to see that you were placed on deferred.

ALSO NOTE: Deferred adjudication is a conviction for immigration purposes. The government only cares that you pled guilty – not that the conviction was deferred. They care about your admission – not what the court did after that.

LAST NOTE: There are some criminal offenses in which deferred adjudication is not an option. The most common instance of this is DWI – the state CANNOT offer a deferred in a DWI and the judge CANNOT extend that to those charged with DWI. It is not possible.

Deferreds are not an easy undertaking. It is advisable to only accept one if there is substantial evidence of your guilt and the risks of trial are too high. If you are an immigrant with potential consequences of a conviction, you will not benefit from deferred. If you are not ready to abstain from drugs and alcohol, deferred is not going to work. I talk to a lot of people who “wish” they had never taken a deferred and tell me “the case was weak” but they pled to get it over with or get out of jail. Don’t be one of those people.

Indigent Defense: Using Experts

Low-Bono and Indigent Defense and the Use of Experts: Why and How to Do It

If you are poor (the fancy word is “indigent”), and you are accused of a crime, you are entitled to a court appointed attorney (or a public defender when the jurisdiction has an office).  Now that can be dicey, because you cannot choose your court-appointed attorney and there are very limited circumstances in which you can request a new one.  I do the best I can for all clients, court appointed or hired, but I cannot speak for all attorneys.

If you choose to scrape together some money and hire an attorney, you may be able to find one to work with you on a payment plan or for a reduced fee.  We sometimes call this a “low-bono” case.  I do this for some clients.

Bottom line is, you may not have any money to hire an attorney or you may run out of money by hiring an attorney.  You may have nothing left to fund other aspects of your defense.

In complicated cases, and in cases in which there are witnesses, you may need to utilize other professionals in your case to competently and successfully mount your defense.  You may need to use an “expert”.  This can be a psychiatrist/psychologist, a scientist, or an investigator.  These can all help either gather defense evidence or analyze and criticize parts of the state’s evidence. This can be very helpful in negotiations and persuasive with a jury at trial.

If you cannot afford an expert, your attorney can petition the court to order the prosecuting county to pay for your expert.  Under Ake v Oklahoma (a federal case), and State v Briggs (a Texas case) the county (or other relevant jurisdiction) has to provide you with money for a competent expert if you show that: 1) you are indigent (and you can qualify under this prong even if you hired an attorney if you have run out of resources) and 2) you make a substantial showing of material need for this expert. 

If science if a relevant piece of the trial, like in a DWI with a breath or blood test in which the state is going to have a scientist testify to their evidence of a particular Blood Alcohol Content, you can almost always show that you have a material need for your own expert to look at the state’s evidence and form an opinion.  If you have witnesses, you can usually show a need for an investigator as you (as the attorney or defendant) cannot interview these witnesses yourself AND testify to what they said. 

What do you do with an expert?  Choosing the right one is a different matter.  You might want to find one that another attorney can vouch for as effective and qualified.  You can ask them to write a report that you can use in cross-examination.  You can also ask them to testify (this usually costs additional money). 

The point is this:  a good attorney is going to know when and how to utilize an expert.  S/he isn’t going to be afraid to insist that the county pay for it. S/he isn’t going to be intimidated by scientific or pseudo-scientific evidence in your case and insist you plead guilty.  I’d like to think I’m describing myself. 

Former Foster Care Children in the Criminal Justice System: A Problem in Need of a Just Solution

Former Foster Children in the Criminal Justice System:  A Problem in Need of a Just Solution

                I have represented several former foster children in my work as a defense attorney.  I have found that for many former foster children, their experience with the criminal justice system started as a juvenile and continued on into adulthood.  We as a society need to find better solutions to help children and families in crisis so we can keep vulnerable children from entering the adult system.

                California officials did a study of adults in their prisons and found that 14% of those surveyed had been foster children.  Washington did a study and found that 1 in 5 foster children were arrested and jailed within a year of aging out of the system.  Texas, however, apparently has not done the work to find out just how severe the problem is of former foster children experiencing the criminal justice system.

                It makes sense.  Foster children have often been traumatized.  They may have developmental delays, intellectual disabilities, and mental health issues.  They may have missed weeks upon weeks of school.  This makes them especially vulnerable to substance abuse and early affiliation with criminal gangs.  

                Foster children are also vulnerable to homelessness.  Foster kids “age” out of the system at 18.  Some states have “extended” foster programs and allow children to stay sometimes until age 21.  Texas does not have these provisions.  On their 18th birthday, foster children have to find a place to go as their foster families no longer have an obligation to them and neither does the state.  Some kids have no place to go and end up on the streets.  Homelessness is a huge indicator for involvement in the criminal justice system.  Survival crimes, like theft, drug distribution, and prostitution, may be a last resort for homeless former foster kids.   This leads to incarceration.  Some become homeless even prior to aging out as they run away from careless or abusive foster families or group homes.  LGBT youth in the foster system are particularly apt to run away from foster families who reject, kick them out, or abuse them for their sexuality and gender identities.  It is thought that 15% of the juvenile justice system is LGBT youth.

                What can be done? 

                Policy makers and legislators need to focus attention and funding to foster kids and fixing the system while at the same time providing support to families in crisis so that children can remain in homes that can be rehabilitated.  We need to get parents mental health services and substance abuse treatment so that they can stay with their children.  When that cannot happen, the state needs to be able to provide children with safe, supportive homes.  The state needs to ensure LGBT kids are placed with homes that will support them and care for them completely.

                We need to do something about children aging out. We need to provide “extended” placements in Texas as other states have done.  We need to provide transitional housing to kids who are aging out to prevent them from becoming street kids at the age of 18.  We need to provide job training, education opportunities, and mental health treatment to foster children before and after their 18th birthday. 

                If and when former foster kids are charged with crimes, we need to provide special programming and court dockets for them to get support and rehabilitation in a setting that recognizes their special issues.   For example, in Travis County we have “Project Engage” in which young adults who are on probation or on bond get a supportive environment to hear from speakers, do community service, and get support to work and go to school.  We need more programs like this for young adults.

                Lastly, we need to raise the age for the adult system to 18 in Texas.  Children under 18 do not have the mental capacity to make responsible choices as adults do, and they should not be held to the same standards.  Juvenile courts have their own problems, but they do tend to focus more on rehabilitation and reform than punishment.  Raising the age will help keep some foster kids and former foster kids from entering the adult system.  A bill to do just this was given a hearing in the Texas House but it did not get voted out by the entire chamber.

                We need to do better for our foster kids.  These kids have been victims of extreme hardship and bad circumstances not of their doing whatsoever.  We need to give them protection and opportunity to flourish and stay out of the criminal justice system.

American Men in Prison: America's Real Fatherhood Crisis

American Fathers in Prison:  America’s Real Parenting Crisis

There are a lot of social commentary in this country every day about the crisis of American fatherhood.  We hear all the time about how terrible it is that so many homes in the U.S. do not have a full-time dad in them.  Blame is placed on the individual man, and the woman who bore his child, instead of looking at the societal factors that take fathers out of the home. One of these is America’s over use of incarceration to punish drug use and other minor, non violent crimes. 

In America today, there are over two million children with a father in jail or prison.  Over ninety percent of parents in prison are fathers.  The number of children with a father in prison has grown 79% since 1991. 

This is terribly adverse on children.  Children with a father incarcerated are likely to experience the criminal justice system and incarceration themselves.  These homes face economic barriers because of a parent being incarcerated and unable to support their children. 

Incarceration for delinquent child support is a feel-good solution that actually prevents men from staying employed and able to pay the delinquent child support. 

What should we do to support fathers and their children who are at risk of experiencing the criminal justice system:

1.        Make job training and education available in more neighborhoods and to more young men;

2.       Make sex education comprehensive and realistic to help more men plan fatherhood;

3.       Make drug rehabilitation and mental health services available and free;

4.       Stop using incarceration to punish low level crimes and non-violent crimes;

5.       Abolish the money bail system to allow more criminal defendants to be released on bond. 

6.       Decriminalize low level drug possession.

7.       Stop incarceration for delinquent child support.

We need to help fathers stay in the home.  Part of this is stopping the cycle of incarceration and allowing men to stay out of jail and at home with their children.

Happy Fathers’ Day!

Personal Bond in Travis County

Personal bond in Travis County:

A personal bond in Travis County is given to defendants whom judges feel they can rely on to return to court to answer the criminal allegations pending and do not pose a grave danger to the public. It requires no deposit. It requires a judge’s approval. Often conditions are imposed on the defendant as a condition of personal bond.

I will talk about release on personal bond here.

If you are arrested in Travis County, in most instances you will automatically be screened for a personal bond by a department in Travis County called Pretrial Services. An officer with Pretrial will come see you in the downtown jail within a few hours of your arrest. They will ask you a series of questions to see if you are a good candidate for personal bond. These include questions about identifying information, address, and employment. They will also ask for references for people they can call to verify the information you can give.

If you are approved by the officers in Pretrial Services for the personal bond, a magistrate judge will sign the bond and you will be released. People without a verified address, people with pending cases, people with extensive criminal history, and people with serious allegations of violence will usually not be approved by Pretrial Services for a personal bond.

You should not refuse the interview with Pretrial Services. You do not have to answer questions about the offense, but you should provide your address, employment, and references. Even if you are not approved for a personal bond by Pretrial, answering the questions and getting the bond process started makes it easier for your lawyer to intervene later.

If you are not approved for a personal bond by Pretrial Services, you may still have a chance to be released on personal bond. To effectuate this, you will need to hire an attorney. Please note: the fee you pay to the attorney to secure your release on personal bond is kept by the attorney. It is not “posted” to the Sheriff’s Department as a cash bond. It is a fee that is charged by the attorney, and usually serves as a down payment for representation on the charge for which you were arrested, to negotiate your release on personal bond. It is not refundable at the end of the case.

Once you hire an attorney, the attorney will get the personal bond paperwork from Pretrial Services. If you have refused the interview, the attorney will have to interview you on an approved bond form. This adds time to the process, which is why you should do the interview with Pretrial Services.

The attorney, with bond paperwork in hand, will then approach a judge to ask the judge to sign the bond, approving you for release on personal bond. There are many judges in Travis County who can sign a bond. If it’s a felony, and it is unindicted, it can go to any criminal district judge or sitting magistrate judge. If it’s a misdemeanor, it can go to any criminal judge in Travis County.

If you are hiring an attorney between 5:00 pm on Friday through the weekend, realize that there is only one duty magistrate who can sign bonds every eight hours. If that judge does not approve the bond, you are going to be waiting until the next judge comes on duty. Often times, you may wait the entire weekend until the regular sitting judges come back on Monday morning.

A judge usually wants to hear several things when deciding whether or not to approve release on a personal bond. The most important things are that you do not pose an ongoing danger to a particular individual or society as a whole and that you will come back to court. A history of bond forfeiture or a long history of violent accusations will heavily weigh against release on personal bond.

A judge who has concerns about the facts of the case or the danger you pose to society may impose conditions on your release. For a DWI, this may include things like ordering you to install an ignition interlock device and to take an alcohol education class. For more serious, violent felony cases, the judge may order you to be on house arrest with an ankle monitor. You have to decide if you are going to agree to these conditions in exchange for release from jail. If you are released from jail with conditions imposed, you must abide by these conditions or risk having your personal bond “revoked” or “motioned off” – ie cancelled – and going back to jail until the case is resolved.

Please note: there is NO SUCH THING as an “attorney signature bond”. No matter how much other inmates may assure you of the existence of such a thing, it is simply not true. Some attorneys can write their own surety bonds, which do not need to be approved by a criminal judge, but the majority of attorneys will only be able to negotiate your release on personal bond by getting it approved by a judge. Therefore, you should understand that hiring an attorney is not a guarantee of release on personal bond. If the accusation or the history is just too bad, you may not get a release on personal bond regardless of your hiring of representation.

The great thing about hiring an attorney to approach a judge to sign a personal bond is that usually the payment you make to an attorney to do this hires the attorney to continue representation on the case after your release. If you already have an attorney, and you want to keep that attorney, do not hire another attorney to “just” do a personal bond. That attorney will be considered by Travis County to be the new attorney on the entire case. You cannot keep an appointed attorney and also hire one to “just” do a personal bond.

Travis County charges a fee to people released on personal bond. Without any devices such as IID or electronic monitor imposed as conditions, the fee is $40 per case. It is a good idea to pay this $40, but your bond will not be revoked if you simply do not have the money to pay it.

I am available to take jail release cases in Travis County. If you have any questions or have a loved one in Travis County jail, call me to see what your options are. My number is also a free call from the jail, and it goes to my cell phone, so if you need jail release at any time I am available to help.

#jail #prbond #pr #personalbond #bond #atx #traviscounty #texas#criminalcase #crime #criminaldefense

Deferred Disposition and Why that Ticket is Still Haunting You

“I thought I paid that”:  Differed Disposition and Why that Ticket Is Still Haunting You

                I handle lots of Class C misdemeanors.  The most common Class C misdemeanors are traffic tickets (moving violations): things like speeding, running a red light, etc. 

                A very common way of resolving a Class C is deferred disposition.  This is when the Defendant enters a plea of no contest but the finding of guilt is “deferred” for a period of time, often 90 or 180 days, and conditions are placed on the Defendant that must be completed by the time the deferral ends.

                The most common conditions are “no new tickets/convictions”, driver’s safety course, and payment of a special expense fee (and sometimes court costs).  This means that within the period of deferral the Defendant has to do the things asked of him/her. 

                I get a lot of calls from people who say “I thought I took care of this, but I got a letter/phone call, etc. Why?”  Most often it is because s/he entered a deferred disposition but did not abide by the conditions and complete the deferral. 

                How you can mess up a deferral:

·         “No new tickets/convictions”:  Ifyou get a new ticket or a new conviction, depending on the jurisdiction, the deferral will not be successfully completed.  Sometimes, you have to submit an affidavit swearing that you have not had any new convictions. 

·         “Special Expense Fee”:  You will always have to pay a fee (it is not technically a fine) for a deferral.  If you do not pay by the deadline, you will not successfully complete the deferral.

·         “Drivers Safety”:  If you have been told to complete a class, such as driver’s safety course, you have to do it during the deferral period AND submit proof of completion.  If you do not do it, you will not successfully complete the deferral.

If you have entered into a deferral and have not successfully completed it, typically you will be set for a “show cause” hearing in which you will be most likely (depending on the jurisdiction) be given a chance to explain why you did not complete the deferral and sometimes you will be given a short amount of time to complete and submit proof.   If you do not attend the show cause hearing, at that time, a finding of guilt will be entered and you will be convicted of the Class C. The notice for the show cause will be sent to the address the court has and usually will not be forwarded.   If you do attend the show cause and are not given more time, a conviction will be entered.  If you are given more time, and still don’t complete the deferral, a conviction will be entered.

If you get a conviction entered after you do not complete a deferral, typically a heavier fine will be assessed.  Some jurisdictions will max the fine assessed.  At that point, typically a warrant will issue as well and will not be withdrawn until you pay the fine.  If you are convicted of an offense that carries a license suspension or surcharge, or both, you will be assessed that as well.  If it is a moving violation, points will be added to your driver’s license.  The conviction will be placed on your driving record and will likely be reported to your insurance.

It is very important you understand the conditions placed on you when you enter into a deferral.  Ask questions and get it clarified by the court staff.  Calendar ALL deadlines and abide by them.  If something comes up and you cannot make a deadline, ask for an extension in writing.  It is easier to get an extension prior to the deadline than asking for time at the show cause – lots of courts are not very forgiving at the show cause.

If you are struggling with tickets that seem to keep popping up, give me a call today. 

Romeo and Juliet Defenses: How the Law Still Discriminates Against LGBTQIA couples

"Romeo and Juliet" Defenses: How Texas Law Still Discriminates and LGBTQIA People

Texas House Bill 331, filed by Rep. Mary Gonzalez, is a very important bill that would equalize the "Romeo and Juliet" defenses to sex assault and allow it to be utilized by LGBT couples.

I am going to explain what that defense is and how the Penal Code discriminates against LGBT people.

You may have heard of something in the Texas law called a “Romeo and Juliet” exception to sexual assault.

Texas Penal Code Section 22.01 defines sexual assault as non consensual sex or sex with someone under 17 years of age. However, it also creates an exception we call the “Romeo and Juliet” exception that makes it an affirmative defense against the charge of sexual assault of a person under 17 years of age if the person accused was not more than three years older than the complaining witness (example: a couple 15 and 18 years), the complaining witness was not younger than 14, and the person charged is not a registered sex offender.

However, this exception also required that the person not be barred from marrying the complaining witness. This made incest illegal even under the “Romeo and Juliet” exception, but it also made this exception completely unavailable to same-sex couples prior to the Supreme Court’s decision in Obergefell – the case that made same sex marriage legal nationwide.

This meant that opposite sex couples could use this exception but same sex couples would still be prosecuted!

Now that Obergefell is the law of the land, it is possible same sex couples may make use of this exception. However, for those already in prison it is not clear if they will be able to challenge their convictions.

HOWEVER:

Texas Penal Code Section 21.11 defines indecency with a child as exposure of the genitals or anus of a child under 17 years of age. It is commonly the charge used when an adult has sexual-type conduct with a child but not full intercourse – like fondling of the genitals or breasts that involved removal of the clothing. It makes this conduct a felony.

Section 21.11 also creates a “Romeo and Juliet” exception like the one above – parties not more than 3 years apart in age, the complaining witness not under 14, and the actor not a sex offender.

HOWEVER: 21.11 also makes this exception explicitly available only to opposite sex couples. Same sex couples, in spite of Obergefell and legalization of marriage, cannot – absolutely cannot – take advantage of this exception. That means, until the Legislature amends the law or a court finds it unconstitutional, same sex couples will be prosecuted with crimes under 21.11 (indecency with a child) that opposite sex couples will have a defense to under 21.11!

This is fundamentally unfair to same-sex couples and has no real justification. However, it is unlikely the Texas Legislature is going to amend this law. Any change will have to come from a court.
This is one of the many ways that LGBTQIA people can be treated differently, rather explicitly or subtley, by the criminal justice system. If you are LGBTQIA, you need a lawyer who understands your issues and will defend you competently, with full understanding of the barriers you face because of who you are. I can help.

Call me today.

#criminaldefense #texas #lgbtqia #pride #gay #lesbian #txlege #atx#romeoandjuliet

Myths on the Mentally Ill and the Criminal Justice System

Myths about People Living With Mental Illness and their Involvement in the Criminal Justice System:

My Rotary Club this week, Austin Cosmo Rotary, (www.austincrc.org) is raising money for people living with mental illness to go to school and get skills to be able to become gainfully employed. In light of that, I thought I’d do an article discussing mental illness and involvement in the criminal justice system. 

More likely to be victims than perpetrators:

We hear a lot about “crazy people with guns” and the like, but according to several studies the mentally ill are much more likely to be victims of crime than perpetrators.  In a study of almost 5,000 mentally ill adults, it was shown that only 24% had been perpetrators of crime, and only 2.6% of those incidents were in the workplace or school.  A significantly higher percentage – 31% -- had actually been victims of crime.  Nearly half of that 31% had been repeat victims.  The study is found here: https://news.ncsu.edu/2014/02/wms-desmarais-violence2014/

Mentally ill cannot be summarily forcibly committed: 

I get a lot of calls from people saying “my family member is off her meds; can we put her in a hospital or rehab?” The short answer is only if s/he is a danger to herself/himself or others.  This means there has to be a demonstration of violence or likely violence and/or an active suicidal ideation.  Mental illness does not rob the person of the freedom that everyone enjoys in this country to refrain or abstain from medical treatment. 

If a person is accused of a crime and mentally ill, the lawyer can ask for a competency evaluation done to find if the person can understand the system and the accusations enough to held to trial.  If the person is found incompetent, sometimes s/he will be hospitalized to restore his or her competency.  This may be done without the person’s consent. 

Collateral consequences to incarceration are HIGH:

Many mentally ill people legitimately receive government assistance to meet their daily needs.  This may be SSDI, food stamps, housing assistance, and Medicaid.  What is unfortunate and needs to change is that after a period of prolonged incarceration (six months or more, even if never convicted of anything) the receiver of these services may be cut off from services and have to reapply.  This can leave them in a very precarious situation without the ability to meet their basic needs and without treatment options. 

Having a diagnosis does not automatically get you a better deal:

In Travis County and other major counties, mental illness is taken into consideration when someone is charged with a crime.  In Travis County, we have a Mental Health docket in which treatment is often a condition of a plea agreement, etc.  However, just because someone has a mental illness does not mean s/he is going to “skate” on a charge and not be held accountable.  That is a myth.  It is also a myth that s/he will be without treatment in jail as the jail is legally liable to treat them, and in Travis County, the jail is indeed the biggest purveyor of mental health treatment and medication.

We can work together to find better solutions to mental illness than the revolving cycle of incarceration, homelessness, and instability.  Join me and Austin Cosmo Rotary Club to raise money for participants at Austin Clubhouse to get skills to help them work and support themselves.  We can find community based solutions to the challenges of mental illness. 

Possession of Marijuana

Possession of Marijuana

I am posting/reposting this in light of SXSW and Spring Break.

Possession of marijuana can range from a Class B misdemeanor, punishable by up to 6 months in jail and a fine not to exceed $2000, to a first degree felony, punishable by 5 years to ninety nine years in the penitentiary, depending on the amount discovered in your possession by the police. It is one of the most common criminal charges in Texas. A conviction for possession of marijuana can have serious ramifications on your life. You need a good attorney for a charge of possession of marijuana.

Possession of two ounces or less is a Class B misdemeanor and the most common marijuana charge. Many times, particuarly in Travis County, “time served” –the time you were in jail on the arrest, even if it is only one or two days– is offered for a possession of marijuana Class B offense. This is not without consequences however easy it might sound. It is important to remember that a conviction for POM, even at the Class B level, can have immigration consequences, affect your ability to gain employment and housing, and can disqualify you from receiving federal financial aid to go to school. Sometimes, a lawyer can work out a deal to keep the conviction off your record if you are willing to do something in exchange – usually this involves taking a class and doing some community service at a non profit. Although not as simple as pleading guilty and receiving time served, it can be very beneficial to preserve a clean record.

One of the ways a lawyer can be beneficial for even a POM in which a small amount of marijuana is involved is by analyzing the facts of the case and the tactics the police used to find the marijuana. Each person in the United States, even an immigrant without status, has a 4th Amendment right against unreasonable search and seizure. They need reasonable suspicion of an offense to detain you, and they need probable cause to search you and your belongings, including your car. If the police violated this 4th Amendment right a lawyer can argue this to the prosecution, and the judge if necessary in a hearing, and this could lead to the case being dismissed by the prosecution or the marijuana being “suppressed” by the judge – meaning it cannot be used as evidence against you. If the evidence against you is supressed by the judge, often the prosecution will dismiss the case if there is no other evidence of your guilt of POM.

A few words of caution for marijuana users:

It is a bad idea to drive around in your car smoking marijuana. If you do carry marijuana with you regularly, do not smoke it in your car and keep it in an airtight container. The smell of marijuana is enough probable cause to search the entire vehicle for the marijuana they smell. Do not let what could be a simple traffic stop in which you could receive a citation for a moving violation turn into a night in jail because of the odor of marijuana. You may not think the smell is that strong, but to a trained officer it may very well be.

Also: there is no such thing as a “Class C” possession of marijuana. There is a Class C possession of drug paraphernalia offense – which you can receive if the police find a used pipe—but not a Class C for actual marijuana. Even for a small amount you will receive a Class B. If you have received a “ticket” for marijuana, IT IS NOT A CLASS C. It is not something you can resolve by paying. It is a “cite and release” for Class B or A POM. Cite and release is an option under the Code of Criminal Procedure that allows police officers to write a cite to someone for misdemeanor POM instead of arresting that person and taking that person to jail. Austin Police Department and Travis County Sheriff’s Office both employ cite and release. I am not aware of any other agencies in texas that does. It is within the officer’s discretion to employ cite and release, and they can only do it for misdemeanor POM. If it amounts to a felony, you are not eligible for cite and release. DO NOT IGNORE THE CITE. Ignoring it will result in a warrant issued for your arrest and a subsequent charge for Class A misdemeanor bail jumping/failure to appear. On the cite, you will be given a court date in Justice of the Peace 5. You will need to go to JP 5 on that date. You will be processed, given a personal bond, and you will be “booked” into jail at the bonding desk at the courthouse, and then released automatically, instantaneously on the personal bond you are given. You will not be taken to the actual jail– unless you have other warrants out for your arrest that the officers at the bonding desk find. If you have other warrants out, you will indeed be taken into custody. Expect this process to take 2-3 hours. Bring your ID. You will be given a court date on your personal bond that you must be present at unless you hire an attorney first.

Lastly, as a lawyer I do not judge marijuana smokers. I think it is far less dangerous drug than alcohol. It can have its downsides, particularly legal ones, but it is not my business to tell my clients to stop smoking marijuana. I personally think it is should be legal and support all efforts by legislators in Texas to decriminalize possession. We are putting far too many people in jail for small time possession of marijuana and it is harming us socially and economically.

SB 6: Limiting Access to Justice

Senate Bill 6 is being heard in committee tomorrow.  I wanted to add some thoughts to this discussion.

Senate Bill 6 would mandate that public buildings, including government buildings, require people using the facility to use the bathroom corresponding to the gender assigned at birth and placed on the birth certificate.

I represent lots of LGBT people.  Those whom I represent that are accused of crimes, guilty or not, are required to appear before the court presiding over their cases.  This requires their presence in a government building, the county courthouse, which would be covered by this bill.  My clients would be forced to use a bathroom corresponding to the gender assigned at birth while attending court.

My clients do not have a choice to come in the courthouse.  They must or risk consequences.  They do not control how long they will be in that building --- they are not allowed to leave until they are excused by the court.

My clients would be faced with an untenable position – go into a bathroom in which they are not comfortable, do not appear to belong in, and may indeed face real danger in; do not use the bathroom at all; or face consequences for using the “wrong” restroom.

If my clients have to make this choice, it is going to severely limit their abilities to defend themselves from criminal accusations.  They will want to limit the amount of time in court – which means they may not want an extensive plea bargaining process, and they definitely will not want to elect for a trial in which they will have to spend hours upon days in the courthouse in which they will inevitably have to go to the bathroom.

If you do not have sympathy for criminal defendants, think of the witnesses, including the complaining witnesses.  A person should not have to drop charges against someone who has victimized them because going to testify at a county courthouse will involve them having to go into a bathroom in which they do not feel comfortable.  I believe this will limit trans people from seeking justice.

Ultimately, this bill is going to limit access to justice by making courthouses very inhospitable to trans citizens, who should enjoy the same rights to defend themselves or seek justice against people who have victimized them as anyone else.

I ask the committee to refrain from passing this bill out of committee.

Dropping the Charges: Fact v Fiction

“Dropping Charges” : Fact vs. Fiction

When someone is charged with a crime against another person – who we call the “complaining witness” -- and an arrest is made and charges filed, there is often talk after the fact about that complaining witness “dropping the charges”. I will explain a little about the realities surrounding this here.

Once the case is accepted by the prosecution, either the County Attorney or the District Attorney, efforts will be made to contact the complaining witness to get his or her input. The complaining witness will be asked if what s/he told the police is true, what happened, what his/her history with the Defendant is, if violence has ever happened before the incident charged in this instance, and what the complaining witness wants done. At this point, the complaining witness can recant, deny the incident happened, change his/her version of the events, and tell the prosecution s/he does not want to pursue a conviction – ie that s/he wants the charges “dropped”.

If the prosecution never talks to the complaining witness, that may or may not be good for the Defendant. It may be interpreted by the prosecution in a way that is helpful to the Defendant because it may mean that if the case is set for trial, the main state’s witness will not be located in order to be subpoenaed, and will therefore be unavailable to testify at trial.

If the witness says s/he will not testify and wants to “drop the charges”, the prosecution will have to evaluate how strong the evidence is against the Defendant if the complaining witness will not testify. There may be evidence that, in the prosecution’s estimation, is enough to convict the Defendant even without the complaining witness. The 911 call, photos, independent witnesses at the scene who witness the alleged crime, and physical evidence among other things all may be enough to try and convict a Defendant without the complaining witness. If that is true, it may be the case that the complaining witness’s wish to “drop the charges” may be disregarded. This will be especially true if the complaining witness does not recant and tells the prosecution that the incident happened as s/he said it did but s/he simply does not want to pursue punishing the Defendant.

The prosecution may go forward even if the complaining witness does not wish to do so. If the defense attorney sets the case for trial, the complaining witness may still be subpoenaed. At that point, if the case is called for trial, the complaining witness is under subpoena, but does not show up, the prosecution at that point may indeed be willing to dismiss the case or severely reduce the harshness of the plea offered. It all depends on the strength of the other pieces of evidence in the state’s possession.

Sometimes, the Defendant may tell his lawyer that the complaining witness wants to sign an “affidavit”. This is referring to an “affidavit of non-prosecution”. This affidavit can be helpful – it is about the same as the complaining witness telling the prosecution that s/he does not want to pursue charges.

Complaining witnesses who have relationships with Defendants often ask the Defendant’s attorney what s/he should do if and when s/he receives a subpoena. Please be aware the Defendant’s attorney cannot advise the complaining witness to disregard that subpoena. It is unethical, as the Defendant’s attorney does not represent the complaining witness and cannot give legal advice. It is also criminal activity that can be charged as “witness tampering”, which is a felony in Texas and punished with possible time in the penitentiary. Lastly, if the Defendant has contact with the complaining witness about the case it may be criminal activity if there is a protective order in place and could possibly lead to charges of Violation of Protective Order. Also, if the state can show that the Defendant did anything that can be interpreted as threatening or intimidating toward the complaining witness to get her/him not to testify, the state can proceed on a "forfeiture" hearing in which they can argue that the Defendant has forfeited his right to confront the witness because of wrongdoing on his/her part -- and if they win the complaining witness's statement gets to come in without her/his presence at trial.

What might happen to a complaining witness if s/he disregards a subpoena? Potentially, technically if the witness is hand served with the subpoena, s/he may be “attached” if s/he disregards the subpoena and taken to court by the police to testify. If at that point s/he refuses to testify, s/he may be held in contempt of court and jailed until s/he agrees to testify. That is theoretically what could happen. This however is rare – but it does happen. Harris County is embroiled in a scandal right now where a complaining witness was jailed for refusing to testify and many in the County disagree with those actions. In reality, in Travis County and most counties, the prosecution is reluctant to attach people it perceives to be victims of crime in fear and hesitation to “revictimize” them. The answer to what is going to happen to a complaining witness who disregards a subpoena is essentially nothing. However, if the complaining witness passes up a chance to testify, it is probably gone forever. Not always, but probably. In very serious cases, if a complaining witness decides to cooperate after the case has been dismissed due to lack of evidence in the form of the testimony of the complaining witness, and the statute of limitations has not run, the case could be refiled. This can happen in very serious child sex abuse cases for example.

The point is: the state does not have to dismiss the case simply because the complaining witness wants the state to do so or because s/he says that s/he is not going to cooperate. That is simply one factor in the calculation the state makes in determining what their offer to the Defendant is going to be. A complaining witness saying s/he wants to “drop the charges” does not at all mean the case ends there.

Also, a word to the wise: just because a complaining witness is telling you s/he wants to drop the charges does not mean s/he told that exact same thing to the state. I have seen many Defendants surprised to find that the complaining witness who promised to “drop the charges” shows up to testify at trial. Its not always wise to count on witnesses not showing up.

Warrant Round Up is Here!

Some of you may have gotten “warrant round up” notices in the past several weeks. Texas’ Warrant Round Up started February 15, 2017 and it will last several weeks. 

Over three hundred agencies participate in Warrant Round Up.  Austin Municipal Court and many of the justice courts (JPs) in Travis County participate.  If you have a warrant that is not in one of these jurisdictions, you can still be arrested for your warrant during this time, but it will just be coincidental instead of part of the coordinated effort these other jurisdicitions are undertaking.

Warrant Round Up focuses mostly on Class C misdemeanor warrants.  Class C misdemeanors are the lowest level misdemeanors in Texas law and they are punishable by fine only, usually up to $500. 

However, there are some instances in which you can be taken to jail for a Class C misdemeanor.  I will deal with two here.   

I.                    Failure to Appear:  “Open” Tickets

If you receive a Class C ticket, and you fail to appear and it remains open, meaning no action has been taken since the issuance of the citation, in most jurisdictions a warrant will issue.  In some courts, you may also be charged with a subsequent Class C offense of Failure to Appear. You will have a warrant on that new Failure to Appear as well.  You can be taken to jail on these “open ticket” warrants.  What happens when you are arrested for these kinds of warrants depends on the jurisdiction.  For an Austin Municipal Court ticket, you may be given the option of pleading guilty at magistration at the jail and agreeing to pay the ticket, or you may be given a court date if you plead not guilty and told to appear in Austin Municipal Court. For Travis County tickets, you may be taken to the court of jurisdiction, which may happen the next business day depending on what time of day you get arrested.

If you have Class C tickets that are “open”, there are several options on how to dispose of those and get the warrants cleared.  Some are better than others.  Here are some of them:

1)      You can always plead no contest and agree to pay.  In Austin Municipal Court, you can go to the courthouse or satellite stations and do this without having to fear being arrested.  There are drawbacks to this option of which you should be aware.  Simply telling a court staffer you want to plead guilty and pay the ticket waives any chance you have at negotiating the fine down with a court prosecutor.  You will pay the full amount plus some extra court costs for letting it go to warrant.  Secondly, depending on the charge, there may be collateral consequences for pleading no contest.  Pleading no contest to driving while license invalid, no drivers license, or failure to maintain financial responsibility where you already have one conviction could trigger a license suspension and will cause surcharges on your license to be assessed. If you did not have an eligible driver’s license at the time you got a moving violation, and you pay it, this could trigger a DPS departmental suspension of your license because you are admitting by paying the ticket and pleading no contest that you were driving without a license. 

2)      You can post bond with the court and put your case back on the docket.  This will allow you to speak with the prosecutors at a court date and negotiate to pay less and potentially keep it off your record, avoiding any collateral consequences that could come with a conviction. This may be an expensive undertaking as bond in some courts can be double the fine.

3)      You can hire an attorney to designate on your cases and put them back on the docket.  Usually this is done by sending a letter to the court in which the attorney says s/he’s going to be responsible for the case.  Sometimes, the attorney has to post an attorney surety bond with the court.  Once this happens, the warrant will be rescinded, and the attorney will appear in court for you, speak with the prosecutor in that court, and get a deal worked out for you.  Many times this deal will allow you to keep a conviction for the Class C off your record and will be cheaper to resolve than just simply paying the ticket. I am available to do this work across the state of Texas.

II.                 Commitment Warrants – Satisfying the Judgment

If you receive a Class C ticket and there has been a judgment -- ie, you have pled no contest or been convicted at trial – you have to pay or otherwise satisfy that judgment. If you do not, a “commitment” will issue.  This is a kind of warrant.  At that point the ticket is no longer “open”.  It is in “commitment” status.  That means you cannot change your mind under most circumstances and change what you agreed to pay or even that you agreed to pay.  Its done; you simply have to fulfill your obligation as agreed.

If you’ve already pled on your citation and have agreed to pay, but you cannot, you can sometimes go back to the court and ask to be put on a payment plan for an amount you can pay per month.  Often times this agreement will be enough for the court to rescind the warrant.  In extreme circumstances, you can ask the court to find you indigent and allow you to do community service at a non profit, non religious, non political charitable organization.  If you are asking for a court to find you indigent, it is important to bring documentation to support your claim you are indigent.  Tax returns, pay stubs, or proof that you receive government assistance can help prove to the court that you are indigent. You can also get jail credit applied to these tickets if you have been to jail while these warrants were active – even if it is was not holding you or you were not arrested on these warrants specifically.  How much credit a day in jail will give you depends on the court.

It is easier by far to take care of warrants prior to hearing the knock on your door.  At that point, your only option will be to pay the ticket or go to jail for several hours or even a few days depending on the jurisdiction.  Don’t wait for that to happen. If you would like to speak with me regarding your Class C warrants, I am happy to do a free phone consultation to run down what your options are. 

Jail Calls: Why You Should Always Watch What You Say

The Walls Have Ears:  Why You Should Limit What You Say in Jail

If someone’s in jail, it is common for s/he to make phone calls to lawyers, family, and friends.  It may be very tempting for s/he to say quite a bit on these phone calls – how they got in jail, what the allegations are, etc.  It may seem safe to say things on these phone calls – but that is indeed a terrible idea.  It is not safe at all and these conversations can be used against you.

Phones: 

All calls from Texas jails are monitored.  Phone calls to lawyers are not supposed to be monitored and recorded but we cannot be sure that they are not.  All other calls are for sure monitored and recorded.  Law enforcement is listening for admissions of guilt, intimidation of witnesses, promises made to get witnesses not to testify, statements made to further a conspiracy – all kinds of things that can be very detrimental to a criminal case and valuable for the prosecution.

These calls can be used as probable cause to charge others with offenses or cause the investigation of other people. They can be used as evidence in the person in jail’s case.  The prosecution can use these calls in trial and in plea negotiations.  They are admissible – even if the defendant didn’t know s/he was being recorded.

Indeed, if the defendant makes overtures against witnesses to intimidate them not to testify, this can be used in “forfeiture” proceedings in which the prosecution can fight to admit witness statements even if the witness does not testify.  These statements can be admissible over objections by the Defendant that he did not have the right to confront the witness.  By intimidating the witness the state will argue the Defendant forfeited his right to confront that witness.   This is very common in family violence cases.

Visits:

In-person visits in most Texas jails are recorded and monitored.  In just the same way as statements made in phone calls can be used against the defendant, s/he should expect that incriminating statements made in visits can be introduced as well.  The recordings can and will be played to a jury if the case goes to trial.

The Future:

Law enforcement and private corporations that service correctional facilities are advancing the technology with which they use to monitor prisoners’ communications.    They are working to develop voice recognition software to determine if the inmate used another inmate’s account to make the call.  They may be developing rapid cell phone location determining technology to find the location of the person the inmate is talking to from jail. 

All in all it’s a bad idea to say too much on jail calls.  Make all calls with the knowledge that you are being recorded and the recordings will be passed on to the prosecution in your case. 

Lastly, a word to the wise, don’t call family and then have the family member call your attorney on a three-way call.  If you do that, the attorney’s number will not be recognized and that attorney call will not be exempted from routine recording of all calls.  It will therefore not be confidential.

Be careful when you are in jail.  You have zero privacy and your words will be used against you.