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The Castle Doctrine in Texas

A video going viral today shows an Abilene man getting shot and killed after an argument with his neighbors over where to dump trash.  The neighbors, a father and son, have been charged with murder.

The two-minute video is full of misconceptions about the law surrounding gun rights and standing your ground in Texas.

Misconception One: “Standing Your Ground” means you can use deadly force and you don’t have to back down during an argument.

Generally, you can use force “to the degree” a person reasonably believes such force is “immediately necessary” to protect against another person’s use or attempted use of unlawful force. In other words, if someone is about to clock you, you are allowed to defend yourself with your hands…but don’t expect the law to protect you if you bring a gun to that fist fight. Generally speaking, you can defend yourself with the same level of force that is being used against you. Using deadly force, however, has additional requirements. You would have to show that you used to force to protect against the other person’s use of unlawful deadly force or to prevent an aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

A person can only “stand their ground” if they have a right to be present at the location, they did not provoke the person against whom the force is being used, and were not engaged in criminal activity at the time they are using the force. Threatening to kill someone while you display a deadly weapon is generally going to be the second-degree felony offense of Aggravated Assault with a Deadly Weapon.

Misconception Two: You can Shoot Someone for a Getting in Your Face

Verbal provocation alone is never justification for the use of force. It doesn’t matter what the other person is saying. If you respond with anything from a fist to a firearm, you are going to be charged with a criminal offense. That includes a person getting in your face with their finger waving. That includes an unarmed person saying they are going to kill you.

Misconception Three: You Can Set Conditions that Allow You to Shoot

On the video we hear the first shooter say, “If you come within three-foot of me, I’m going to kill you.” While the video doesn’t show exactly what happened next, let’s assume that three-foot rule was violated. That still did not give the shooters the legal authority to shoot the deceased.

Understanding the Castle Doctrine in Texas

A man’s home is his castle, and nowhere is that more true than in Texas. Terms like “Castle Doctrine” and “Stand Your Ground” get tossed around in the media frequently, but what do these terms actually mean in the Lone Star State? Do you have a right to pull a shotgun on someone who gets past your fence? What if you pull into your driveway to see someone running off with a jewelry box? This article covers what is broadly described as the “Castle Doctrine” in Texas, including when you can use force, when you can use deadly force, and whether you have a duty to retreat.

What is the Castle Doctrine in Texas?

Perhaps the easiest way to understand a key provision of the Castle Doctrine is to remember that a King or Queen has no duty to retreat inside their own castle, and if someone unlawfully forces their way into the castle, the King or Queen can use any force available to resist that attack. Texas Penal Code 9.31 and 9.32 together form what is often called the “Castle Doctrine” in Texas. Penal Code 9.31 discusses the use of non-deadly force and 9.32 discusses the use of deadly force. Penal Code 9.41 and 9.42 are also worth looking at because they describe when force and deadly force can be used to protect property. (All these statutes are provided in the section below.) While Texas gives broad rights to individuals to protect themselves against others, always remember they boil down to a question of what was reasonable. Reasonability and the immediate need to use force are two lynchpins of the Castle Doctrine in Texas.

Under the Castle Doctrine, in certain circumstances, you are presumed to have acted reasonably in defending your “castle.” This could be your home, vehicle or place of employment.

texas castle doctrine

When is a person justified in using deadly force to protect a person?

Penal Code 9.32 sets out that person can use deadly force when he reasonably believes it is immediately necessary to:

  • protect against another’s use or attempted use of unlawful deadly force, or
  • to prevent an aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

When is a person justified in using deadly force to protect property?

Generally, a person may use force, but not deadly force, to protect property. There are, however, some important exceptions. Under Penal Code 9.42, deadly force may be used to protect land or property when a person reasonably believes that deadly force is immediately necessary to:

  • prevent arson, burglary, robbery, aggravated robbery, theft at night, or criminal mischief during nighttime;
  • prevent someone fleeing with property after committing burglary, robbery, aggravated robbery, or theft during the nighttime.

However, the person must also be able to show that he reasonably believed that the land or property could not be protected or recovered by any other means or that the use of non-deadly force would expose him or another to a substantial risk of death or serious bodily injury.

Is there a duty to retreat under the Castle Doctrine?

The Castle Doctrine relieves a person of the duty to retreat when he is justified in using deadly force against another if:No Duty to Retreat Castle Doctrine

  • the actor has a right to be present at the location where the deadly force is used
  • the actor has not provoked the person against whom the deadly force is used, and
  • the actor is not engaged in criminal activity at the time that the deadly force is used.

Texas Penal Code 9.32(d) further provides that in determining whether or not the actor’s belief was reasonable, the trier of fact may not consider whether the actor failed to retreat. In other words, a person generally does not have to retreat on their property and their decision not to retreat cannot be used as a fact against them in determining whether their belief that deadly force was needed was a reasonable belief or not.

What is reasonable under the Castle Doctrine?

The question of reasonability will always be one for the fact-finder, whether that is a grand jury, a petit jury, or a judge. However, there are instances where reasonability is presumed. The Castle Doctrine in Texas provides a presumption of using force against another person who is:

  • unlawfully and with force entering or attempts to enter your habitation, vehicle, or workplace; or
  • attempting to remove you, by force, from your habitation, vehicle, or workplace;
  • committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

Does the Castle Doctrine extend to my work place or business?

Yes, the Castle Doctrine extends to your place of employment and your business.

Does the Castle Doctrine extend to my vehicle, RV, and gator?

Yes. The Castle Doctrine extends to any vehicle routinely used for transportation, including planes, trucks, cars, golf carts, and ATVs. Vehicles are considered your property and covered by the law if you face an intruder.

Provoking the difficulty

If a property owner provokes an individual and that leads to violence or if the property owner is taking part in any criminal activity, the owner is not protected.

Otherwise breaking the law

A person that is engaged in criminal activity will not be entitled to a castle doctrine defense

Can you shoot someone on your property who makes a verbal threat?

Texas law provides that a verbal threat alone is not sufficient to justify use deadly force. So a person saying, “I will kill you” may not be enough to use deadly force, but a person who says, “I will kill you” while holding a knife goes beyond mere words; they have the ability to carry out their threat.

Can you shoot someone who makes a threat of future harm?

Notice the law authorizes the use of deadly force only when it is “immediately necessary.” If someone says, “I will come back and kill you tomorrow,” it will be difficult to show the use of deadly force at the time of the statement was immediately necessary.

Can I threaten to shoot someone when I am authorized to only use non-deadly force?

Yes. Under Penal Code 9.04, you can draw a weapon and threaten a person if you are justified in using force. Note the requirement is not that you had to be justified in using deadly force. The law also requires that when you pull a weapon and make a threat to protect property or a person, you do so with the limited purpose of causing fear in the intruder that you will use deadly force if necessary.

Can you shoot a trespasser?

While trespassing on property other than your home alone will not give rise to the lawful use of deadly force, there is a presumption that deadly force is immediately necessary when someone has unlawfully entered or is attempting to enter by using force. Additionally, deadly force may be used against an intruder at night who you reasonably believe will imminently commit theft or criminal mischief.

Can I shoot someone to protect my property?

Texas Penal Code 9.41 permits the use of force to protect property. It does not permit the use of deadly force to merely protect property under most circumstances. This changes when someone attempts to forcefully enter your house or enters your house by force.  Your house includes your porch and attached garages, but does not include detached garages. It also changes when you can meet the elements of Penal Code 9.42.

Texas Penal Code Section 9.42 requires that all three of the following circumstances exist in order for you be justified in employing deadly force to protect property.

1. You must be justified in using force;

2. Must only be to the degree you reasonably believe deadly force is immediately necessary to prevent:

a. the imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
b. Someone fleeing from those things; or

3. To the degree that you reasonably believe that

a. The land or property cannot be protected or recovered by any other means, or
b. Using a lesser force would expose you or someone else to the substantial risk of death or serious bodily injury.

Things to Remember about Self-Defense in Texas

  • A defendant is entitled to a jury instruction on self-defense if the issue [of self-defense] is raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense.

 

  • When reviewing a trial court’s decision denying a request for a self-defense instruction, a reviewing court considers the evidence in the light most favorable to the defendant’s requested submission.

 

  • A trial court errs in denying a self-defense instruction if there is some evidence, from any source, when viewed in the light most favorable to the defendant, that will support the elements of self-defense.

 

  • Under Penal Code § 9.31, a person is justified in using force against another when and to the degree that person reasonably believes the force is immediately necessary to protect himself against another person’s use or attempted use of unlawful force. The use of force against another is not justified in response to verbal provocation alone.

 

  • Under  Penal Code § 9.32, a person is justified in using deadly force if he would be justified in using force under Tex. Penal Code § 9.31, and he reasonably believes that deadly force is immediately necessary to protect himself against another’s use or attempted use of deadly force.

 

  • Under Penal Code § 9.04, the threat of force is justified when the use of force is justified by chapter 9. A threat to cause death or serious bodily injury by the production of a weapon or otherwise, provided the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

Penal Code 9.31:

(a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force. The actor’s belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

(b) The use of force against another is not justified:

(1) in response to verbal provocation alone;

(2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer’s presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);

(3) if the actor consented to the exact force used or attempted by the other;

(4) if the actor provoked the other’s use or attempted use of unlawful force, unless:

(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and

(B) the other nevertheless continues or attempts to use unlawful force against the actor; or(5) if the actor sought an explanation from or discussion with the other person concerning the actor’s differences with the other person while the actor was:

(5) if the actor sought an explanation from or discussion with the other person concerning the actor’s differences with the other person while the actor was:

(A) carrying a weapon in violation of Section 46.02; or

(B) possessing or transporting a weapon in violation of Section 46.05.

(c) The use of force to resist an arrest or search is justified:

(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and

(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s (or other person’s) use or attempted use of greater force than necessary.

(d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34.

(e) A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.

(f) For purposes of Subsection (a), in determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat.

Penal Code 9.32

(a) A person is justified in using deadly force against another:

(1) if the actor would be justified in using force against the other under Section 9.31; and

(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:

(A) to protect the actor against the other’s use or attempted use of unlawful deadly force; or

(B) to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

(b) The actor’s belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the deadly force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

Penal Code 9.41

(a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property.

(b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:

(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or

(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.

A person is justified in using deadly force against another to protect land or tangible, movable property:

(1) if he would be justified in using force against the other under Section 9.41; and

(2) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or

(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and

(3) he reasonably believes that:

(A) the land or property cannot be protected or recovered by any other means; or

(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

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From the very first call, I could tell Varghese Summersett was a top notch firm. I called many firms before them and they immediately stood out for their professionalism and prompt response time. They were available for a consultation within 24 hours of my initial call. After retaining them, they were not only always available for calls, questions, and/or meetings but they kept our family in the loop about every step along the way. They outlined the process and set clear expectations from day one. We never felt like we were in the dark. Every one we came in contact with from the receptionist to the various attorneys, was friendly and ready to help. The outcome of our loved one’s case was better than we ever expected it to be. Our family feels fortunate to have had Varghese Summersett by our side during this long a difficult legal process. They made a terrible situation as smooth and painless as possible. I would highly recommend this firm to anyone in need of a defense attorney.

 

Contact Us

If you or a loved one are facing criminal charges after using force to protect yourself, family, home or property, you need an experienced attorney by your side. Call us today at 817-203-2220 for a complimentary strategy session. Our team of former prosecutors and Board Certified Criminal Lawyers are here to help. During this call we will:

  • Discuss the facts of your case;
  • Discuss the legal issues involved, including the direct and collateral consequences of the allegation; and
  • Discuss the defenses that apply to your plan and in general terms discuss our approach to your case.

You can also contact us online:

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Drunk Driving Accidents: Civil and Criminal Consequences

If being pulled over for intoxicated driving is an emotional rollercoaster, being involved in a car accident while intoxicated is an emotional train wreck. You’ll not only have to grapple with the fear of possible criminal charges, but you’ll also likely be held accountable in the civil courts for your actions when crash victims are injured or killed.

You’re probably already aware that in these situations, you’ll likely be arrested and charged with a DWI. Penalties for a DWI are bad enough. First-time offenders may face up to $2,000 in fines, license suspension, or up to 180 days in jail. However, if you’ve been involved in a drunk driving accident, you may be in for more punishment than a DWI charge.

Penalties for a criminal charge provide retribution for wrongdoing, but they often don’t provide restitution for injured victims. For example, if a person is sentenced to jail, the judge in the criminal case cannot impose a restitution order. As a result, you may have to face a civil lawsuit on top of your criminal case. When a civil lawsuit is involved, you should be very worried about having to pay punitive damages out of your own pocket.

What Are Punitive Damages?

Because drunk driving clearly meets the standard for “gross negligence,” there are ultimately three types of potential damages in a civil drunk driving case: (1) economic damages, (2) non-economic damages, and (3) punitive damages.

Economic and non-economic damages are meant to provide the car accident victim with restitution for physical and non-physical losses. Economic damages include compensation for medical bills, lost earning capacity, and property damage. Non-economic damages are meant to compensate for the loss of things that aren’t easily quantifiable, such as pain and suffering, mental anguish, disfigurement, physical impairment, and loss of consortium.

Punitive damages, on the other hand, are not designed to merely compensate for a loss. Rather, punitive damages exist purely to punish a wrongdoer and deter others from engaging in similar conduct. Having to pay punitive damages on top of any fines resulting from a DWI charge can be financially taxing for any individual.

Does Car Insurance Cover Punitive Damages?

If you’ve made the mistake of blissfully assuming your insurance will cover punitive damages, you’ve likely assumed incorrectly. The State of Texas has a long-standing tradition of protecting the freedom to contract by enforcing the terms of contractual agreements (especially insurance policies) as long as the agreement doesn’t violate public policy.

Northwestern National Cas. Co. v. McNulty

For over 50 years, Texas courts have relied on the decision in Northwestern National Cas. Co. v. McNulty as a basis for holding that punitive damages should be excluded from insurance coverage as a matter of public policy. A drunk driver had seriously injured another motorist and was looking to secure coverage from his insurance company for punitive damages.

The court reasoned that “were a person is able to insure himself against punishment he gains a freedom of misconduct inconsistent with the establishment of sanctions against such misconduct.” In other words, being able to insure against punishment defeats the purpose of punishment itself.

Fairfield Insurance Co. v. Stephens Martin Paving, LP

In 2008, the Texas Supreme Court addressed whether punitive damages were insurable for the first time. The case involved a spouse who claimed that a paving company’s negligence caused her husband’s death when a paving machine rolled over him.

In this case, the Supreme Court held that Texas public policy does not prohibit insurance coverage for punitive damages in workers’ compensation cases. However, in the court’s explanation of the decision, it was reiterated that in situations involving drunk drivers or egregious actions, coverage for punitive damages would be deemed inappropriate. Thus, punitive damages can seriously cripple an individual’s financial health, especially given how much could potentially be awarded to the plaintiff.

How Much Can Be Awarded for Punitive Damages in Texas?

Punitive damages will vary depending on the circumstances surrounding the accident and the severity of the crash itself. The State of Texas does cap punitive damages at the greater of $200,000 or double the amount of economic damages plus non-economic damages (up to $750,000).

When it comes to drunk driving, there is an exception to the punitive damages cap that you need to be aware of. If you are found guilty of intoxication assault or manslaughter, there are no caps on punitive damages, even when the felony was not committed knowingly or intentionally.

Therefore, it’s very likely the cap may not apply in your case.

Can an Injured Victim File a Civil Lawsuit if I’ve Already Been Convicted?

If you’ve been convicted of a DWI and you end up serving jail time, an injured accident victim can still file a civil suit against you (you might even be served while sitting in jail). It’s also important to note that the lack of a criminal conviction does not necessarily mean you will win a civil lawsuit, as different burdens of proof are used in civil courts than in criminal courts.

About the Author

Travis Patterson is a local Fort Worth Car Accident Attorney. Travis is a founder of neighboring personal injury law firm, Patterson Law Group. Travis has dedicated his life’s work to helping injured victims recover after accidents. He contributed this article for educational purposes only. This content should not be construed as legal advice, nor does it create an attorney-client relationship whatsoever between the reader and Mr. Patterson or his law firm.

 

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Is CBD Oil Legal in Texas?

The cannabis plant contains over 100 cannabinoids. THC and CBD are the two most commonly discussed cannabinoids. Legislators both at the state and federal level have started recognizing the therapeutic value to CBD and CBD oils, although the legal landscape surrounding CBD oils is far from straightforward for Texans who hope to use CBD oil. The confusion stems from (recent) legalization at the federal level with very limited legalization in Texas.

CBD Oil is legal by prescription in Texas to treat seizures caused by intractable epilepsy.

CBD Oil has not been legalized in Texas recreationally for pain relief, anxiety, or depression. Possession of CBD oil is being prosecuted by a handful of district attorneys across the state, even though many law enforcement agencies refuse to make arrests or prosecute possession of CBD. 

CBD under Federal Law – Agricultural Improvement Act of 2018

Effective January 1, 2019, with the passage of the Agricultural Improvement Act of 2018 (also known as the Farm Bill Act), it is no longer illegal to grow or possess hemp under federal law. Hemp has been removed from the Controlled Substances Act.

Hemp and derivates of the hemp plant, including CDB oil, are now legal under federal law as long as it has less than .3 percent THC

Cannabis products (hemp-derived or otherwise) marketed with a claim of therapeutic benefit must be approved by the FDA. (Source: FDA)

Is CBD Oil Illegal in Texas?

CBD continues to be illegal under Texas state law unless it has been prescribed for epileptic seizures. Like marijuana, prosecution based on possession of CBD products in Texas is largely a function of where you are, not what you possess. Some district attorneys are charging individuals if there is any amount of THC in CDB products. 

Prosecutors in some jurisdictions in Texas will have CBD tested for the presence of THC. If there is any detectable amount of THC, they are filing these cases as Possession of a Controlled Substance – Penalty Group 2 under Texas Health and Safety Code 481.103 and 481.116.

What is CBD Oil?

CBD and Hemp Oil Legal in Texas
Is CBD Oil Legal in Texas?

CBD is short for Cannabidiol. Like THC, it is one of 85 cannabinoids present in the cannabis plant. CBD Oil contains high levels of CBD and trace amounts of THC. The lack of high levels of THC makes CBD Oils non-psychoactive.

What is THC?

THC is short for Tetrahydrocannabinol. This is one of many chemical compounds found in cannabis. THC is responsible for the psychological and euphoric effects of the drug. In other words, it is what makes people feel “high” when they smoke or ingest marijuana.

How is CBD Different From THC?

The short answer is, unlike THC, CBD is not psychotropic. Consequently, it doesn’t result in a euphoric high the way THC does.

CBD oils and George WashingtonThe longer answer is far more interesting. It is important to first distinguish marijuana from hemp. Scientifically, both marijuana and hemp come from the “cannabis sativa” plant, according to the USDA. Marijuana, though in the same scientific family as hemp, is a much smaller plant. Hemp, the taller and more fibrous version of the sativa plant has a long history in the United States. In fact, George Washington grew hemp on Mount Vernon.

Over years of breeding, the cannabis plant was developed to have high levels of THC. It is this breeding to elevate THC levels that has spurred the illegal marijuana market. Because CBD comes from an entirely different plant than marijuana, its chemical properties are different.

THC is found in large quantities in cannabis, or what most people think of as the marijuana plant. Unlike cannabis, or marijuana, hemp contains low concentrations of THC. CBD Oils are generally made from the hemp plant so they contain high levels of CBD and trace levels of THC. As a result, CBD provides a less controversial alternative to THC for health benefits.

CBD Oil in Texas

Texas CBD OilIn 2015, Governor Greg Abbott signed into law what’s known as the Texas Compassionate Use Act, which allows the use of CBD oils to treat seizures caused by intractable epilepsy. The Act legalizes oils containing CBD for treatment of epilepsy, as well as other chronic medical conditions for those who have not responded positively to use of federally approved medications.

The Act authorizes the Department of Public Safety to license dispensing organizations, which function similar to compounding pharmacies. Only neurologists and epileptologists are able to offer prescriptions for CBD oil. While the law was implemented in 2015, access to CBD was delayed until 2017 to allow for additional time to create a system to ensure that distribution is confined to genuine medical necessity along with a detailed registry identifying doctors and dispensaries.

You won’t find the word “Cannabidiol” in Texas laws defining illegal substances or banning their possession or distribution. You also won’t find any of the other descriptors of Cannabidol found on the Open Chemistry Database maintained by the National Center for Biotechnology Information or in any penalty group in Texas. However, if possessed without medical necessity, it is arguable that CDB Oil would be considered a Penalty Group 2, illegal substance. Penalty Group 2 applies to hallucinogens, their salts, isomers, and salts of isomers. It does include substances like Dronabinol and Tetrahydrocannabinols.

How could CDB Oils be Prosecuted in Texas?

Possession of CBD Oil is specifically distinguished from the possession of marijuana in Texas. Texas Health and Safety Code Section 481.002 excludes oils and resins from the definition of marijuana (or “marihuana” as the Texas Legislature insists on spelling it). Instead, a prosecutor presented with a CBD Oil case is likely to argue that it falls within this definition found in the list of Penalty Group 2 substances. Instead of characterizing CBD as marijuana, Texas law added this language to the definition of Penalty Group 2.:

Tetrahydrocannabinols, other than marihuana, and synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis, or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity such as: delta-1 cis or trans tetrahydrocannabinol, and their optical isomers;
delta-6 cis or trans tetrahydrocannabinol, and their optical isomers;
delta-3, 4 cis or trans tetrahydrocannabinol, and its optical isomers; or
compounds of these structures, regardless of numerical designation of atomic positions, since nomenclature of these substances is not internationally standardized;

However, the defense may be able to prove that the CBD oil in question did not contain THC, and was not similar to THC in its pharmacological activity.

A prosecutor will also make the argument that the legislature would not have to pass the Compassionate Care Act if cannabidol were already legal.

What is the punishment for CBD oil with THC present?

Possession of Controlled Substance Penalty Group 2 (PG2)Offense LevelPunishment Range
Less than one gramState jail felony180 days to 2 years in a state jail and/or a fine of not more than $10,000
1 gram or more, less than 4 gramsThird Degree2 to 10 years in a state prison and/or a fine of not more than $10,000
4 grams or more, but less than 400 gramsSecond Degree2 to 20 years in a state prison and/or a fine of not more than $10,000
400 grams or moreEnhanced first-degree felony5 to 99 years in a state prison and/or a fine of not more than $50,000

Think Twice About Selling CBD Oils without FDA Approval

Under current federal law, unapproved sellers of CBD Oils who describe the medical benefits of CBD Oils should at the very least expect to get a Cease and Desist letter from the FDA with language along the lines of:

Your product is not generally recognized as safe and effective for the referenced uses and, therefore, the product is a “new drug” under section 201(p) of the Act [21 U.S.C. § 321(p)]. New drugs may not be legally introduced or delivered for introduction into interstate commerce without prior approval from the FDA, as described in section 505(a) of the Act [21 U.S.C. § 355(a)]; see also section 301(d) of the Act [21 U.S.C. § 331(d)]. FDA approves a new drug on the basis of scientific data submitted by a drug sponsor to demonstrate that the drug is safe and effective.

Furthermore, your product is offered for conditions that are not amenable to self-diagnosis and treatment by individuals who are not medical practitioners; therefore, adequate directions for use cannot be written so that a layperson can use this drug safely for its intended purposes. Thus, ______ is misbranded within the meaning of section 502(f)(1) of the Act, in that its labeling fails to bear adequate directions for use [21 U.S.C. § 352(f)(1)]. The introduction of a misbranded drug into interstate commerce is a violation of section 301(a) of the Act [21 U.S.C. § 331(a)].

What Can CBD Oil be Prescribed for in Texas?

Studies show CBD oil has promise in the following areas:
• Anxiety relief
• Anti-seizure
• Pain relief

However, in Texas, the only approved treatment at this time or the reduction or elimination of seizures. Notably, Florida passed a similar law in 2014; but in 2016, voters amended the law to allow for full THC forms of cannabis for those suffering from a broader variety of medical conditions, such as PTSD, MS, cancer, and HIV. Texas does not allow CBD oil for Parkinson’s patients.

In May of 2017, the Texas Department of Public Safety awarded licenses to produce, process, and dispense CBD oil to three companies. These companies, Cansortium Texas, Compassionate Cultivation, and Surterra Texas, each pay a licensing fee in order to operate facilities to produce and dispense CBD oils under the Compassionate Use Act.

Are THC Oils and Waxes Legal in Texas?

No. As of August 2017, possessing THC oil is not only a crime but also considered a more serious crime than possessing marijuana in its traditional form. In Texas, it is a felony to possess THC oil or wax. The seriousness of the felony varies based on the amount of THC oil possessed. For example, possession of less than one gram of THC oil is a state jail felony that is punishable by up to two years in jail, with a minimum of six months in prison. Additionally, a state jail felony comes with a fine of up to $10,000.

Possessing one to four grams of THC oil is a third-degree felony, punishable by a minimum of two years in prison, with a maximum 10-year prison term. Like state jail felonies, third-degree felonies come with a fine of up to $10,000.

Possession of four to 400 grams of THC oil or wax is a second-degree felony. In Texas, a second-degree felony is punishable by up to 20 years in prison. Like third-degree felonies, this offense carries a minimum sentence of two years in prison and a fine of up to $10,000.

Finally, possession of more than 400 grams of THC oil or THC wax is classified as a first-degree felony. This is the most serious felony in which someone can be charged for possessing THC oil or wax. This crime is punishable by up to 99 years in prison. This crime also carries a minimum sentence of five years in prison and a fine of up to $10,000.

Changes in Texas Law

House Bill 2107 was brought during the 2017 legislative session with a number of vocal supporters. The bill sought to remove the “low THC” restriction and amend the law to allow for “medicinal marijuana.” It also sought to expand the types of conditions that can be treated with cannabis by including post-traumatic stress disorder and terminal cancer. Finally, the bill sought to modify the language, from requiring a doctor’s prescription to requiring a doctor’s recommendation. This change intended to address concerns about the legality of physicians prescribing something prohibited by federal law. Despite having 77 sponsors and co-sponsors, 29 of whom were Republican, the bill died in committee. Given strong support, as well as national trends, changes in Texas law are likely to occur in the future.

As recently as July of 2018, the Texas Department of State Health Services backed off a decision to regulate products the include more than .03% CBD.

Contact Us

The complicated nature of the laws governing CBD oils makes the possession of CBD oil very defensible, especially if the CDB oil has no detectable amount of THC. If you have been arrested for an offense arising from the possession of CBD oil in North Texas, contact us at (817) 203-2220.

 

You can also contact us online:

 h

The post Is CBD Oil Legal in Texas? | CBD Oil Prescriptions in Texas appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

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Is CBD Oil Legal in Texas? | Prosecution May Depend on Your Location (2019)

The cannabis plant contains over 100 cannabinoids. THC and CBD are the two most commonly discussed cannabinoids. Legislators at both the state and federal level have started recognizing the therapeutic value of CBD and CBD oils, although the legal landscape surrounding CBD oils is far from straightforward for Texans who hope to use it.

Some of the confusion surrounding CBD stems from recent legalization at the federal level and very limited legalization in Texas. People think since you can purchase CBD at almost any corner store in Texas, that it must be legal.   Even elected district attorneys have different opinions about the legality of CBD oil in Texas. 

This article takes a look at the circumstances under which CBD oil is legal and the arguments some prosecutors are making to charge individuals who possess CBD oil in Texas.

Will You Be Prosecuted for Possession of CBD Oil?

Whether you will be prosecuted for possession of CBD oil in Texas depends entirely upon where you are located.  In North Texas, Denton County is not prosecuting CBD oil only cases, Dallas County is "not aggressively prosecuting" CBD oil cases, and the Collin County District Attorney is still deciding. Tarrant County, on the other hand, is prosecuting CBD Oil cases.

As we will discuss later,  officials can chose to prosecute CBD oil that contains THC for Possession of a Penalty Group 2 Substance in Texas. While all elected prosecutors understand that theory of prosecution, the reality is that CBD oils usually contain less than 3 percent of THC, if they contain any at all. 

Tarrant County's position has been to prosecute cases where any THC is detected. Additionally, the First Assistant District Attorney recently stated to a local news organization that Tarrant County will prosecute possession of CBD oil not containing THC as a misdemeanor offense. (More on this later.)

is cbd oil legal in texas

CBD Oil is Legal in Texas under Extremely Limited Circumstances

CBD Oil is legal by prescription in Texas for only one purpose: to treat seizures caused by intractable epilepsy.  It has not been legalized in Texas recreationally for pain relief, anxiety, or depression. 

CBD Oil under Federal Law

While CBD is illegal under Texas law, it is no longer illegal under federal law. On January 1, 2019 - with the passage of the Agricultural Improvement Act of 2018 (also known as the Farm Bill Act) - it became legal to grow or possess hemp under federal law  as long as it has less than .3 percent THC.

Hemp has officially been removed from the Controlled Substances Act.

CBD oil is a derivative of the hemp plant, therefore making it legal under federal law as long as it has less than .3 percent THC

It's important to point out that cannabis products (hemp-derived or otherwise) marketed with a claim of therapeutic benefit must be approved by the FDA. (Source: FDA)

CBD Prosecution Texas

Prosecutors in some jurisdictions, like Tarrant County, will have CBD tested for the presence of THC. If there is any detectable amount of THC, they are filing these cases as Possession of a Controlled Substance - Penalty Group 2 under Texas Health and Safety Code 481.103 and 481.116.

Like marijuana, prosecution based on possession of CBD products in Texas is largely a function of where you are, not what you possess.

The Tarrant County District Attorney's Office has asked for clarification on an Open Records Request we sent seeking the number of CBD oil cases that were prosecuted in Tarrant County. However, information obtained from the Office of Court Administrations shows the effect an elected District Attorney can have on the cases pursued by the office.

For example, prosecution of misdemeanor marijuana cases in Tarrant County has increased seven times the state average since the beginning of the current district attorney's administration, exceeding even more conservative neighboring jurisdictions. Not to mention,  both the Republican governor and the Texas Republican platform support decriminalization of marijuana.

marijuana cases in Tarrant County

CBD Oil as a Misdemeanor

The Texas Controlled Substances Act is codified under Texas Health and Safety Code Chapter 481. Health and Safety Code Section 481.032 says that the Commissioner of State Health Services is to set out what substances are deemed Controlled Substances in Texas under Schedules I through V. Chapter 481.034 retains the right for the legislature to remove substances from the Controlled Substance list.

In May of 2017, the Texas Commissioner of the Department of State Health Services, Dr. John Hellerstedt, ordered "that the substance Marijuana Extract, meaning an extract containing on or more cannabinoids that has been derived from any plant of the genus Cannabis, other than the separated resin (whether crude or purified) obtained from the plant) into Schedule I.

Health and Safety Code Section 481.119(b) makes possession of a "controlled substance listed in a schedule by an action of the commissioner...but not listed in a penalty group" a Class B misdemeanor offense.

Like marijuana, prosecution based on possession of CBD products in Texas is largely a function of where you are located -  not what you possess.



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Theories for CBD Prosecution in Texas

Possession of CBD Oil is specifically distinguished from the possession of marijuana in Texas. Texas Health and Safety Code Section 481.002 excludes oils and resins from the definition of marijuana.

If you go through Chapter 481 of the Health and Safety Code, you will find substances like THC (Tetrahydrocannabinol) and dronabinol (synthetic marijuana). What you won't find in Chapter 481 is "cannabidol."  You also won’t find any of the other descriptors of cannabidol found on the Open Chemistry Database maintained by the National Center for Biotechnology Information or in any penalty group in Texas.

As of May 2017, however, you will find the addition of "Marihuana Extract" in the Texas Register [PDF] (not the Health and Safety Code) by the order [PDF] of the Commissioner of the Department of State Health Services. That order is what the Tarrant County District Attorney is using as a basis to prosecute CBD oil possession cases at the misdemeanor level. 

Prosecution of CBD Oil in Tarrant County

An NBC 5 investigation first brought the prosecution of CBD oil in Tarrant County to light. In an interview with NBC 5, the Tarrant County First Assistant District Attorney said Tarrant County is "going to enforce the law." When he says that any amount of CBD oil is illegal - and a misdemeanor offense if it does not contain THC - the law he is referring to is not one passed by Texas legislators. Texas legislators have not specifically made cannibidiol a controlled substance. A medical doctor, who serves as the DSHS Commissioner, added cannibidiol to the list of controlled substances.

After the NBC5 investigation broke and the interview aired, the elected District Attorney released a statement that she has "not spent and do[es] not expect to spend significant resources on cases involving CBD oil."

We are unaware of any other district attorney in Texas that is prosecuting misdemeanor CBD oil under this theory.  According to the NBC 5 investigation,   no other county in North Texas is prosecuting CBD oil possession as aggressively  as Tarrant County.

Felony Prosecution of CBD Oil in Tarrant County

In Tarrant County, if the CBD contains THC, the case is the filed as a felony as a Penalty Group 2 illegal substance. This penalty group is generally reserved for hallucinogens, their salts, isomers, and salts of isomers.

What most people don't realize is the person charged with Possession of a Penalty Group 2 substance is charged with the entire weight of the substance, including "adulterants or dilutants."  In other words, a small eye dropper bottle of CBD oil with half an ounce of liquid could contain a second-degree felony amount of drugs. That means the person is facing 2 to 20 years in prison and up to a $10,000.

Individuals possessing CBD oil, which is sold and marketed as being free of any psychoactive ingredients, are being punished as though it were equivalent to PCP, MDMA, or Ecstasy, or other hallucinogenic Penalty Group 2 substances.

What exactly is CBD Oil?

CBD and Hemp Oil Legal in Texas

CBD is short for Cannabidiol. Like THC, it is one of 85 cannabinoids present in the cannabis plant. CBD Oil contains high levels of CBD and trace amounts of THC. The lack of high levels of THC makes CBD Oils non-psychoactive.

What is THC?

THC is short for Tetrahydrocannabinol. This is one of many chemical compounds found in cannabis. THC is responsible for the psychological and euphoric effects of the drug. In other words, it is what makes people feel “high” when they smoke or ingest marijuana.

How is CBD Different From THC?

The short answer is, unlike THC, CBD is not psychotropic. Consequently, it doesn’t result in a euphoric high the way THC does.

CBD oils and George WashingtonThe longer answer is far more interesting. It is important to first distinguish marijuana from hemp. Scientifically, both marijuana and hemp come from the “cannabis sativa” plant, according to the USDA. Marijuana, though in the same scientific family as hemp, is a much smaller plant. Hemp, the taller and more fibrous version of the sativa plant has a long history in the United States. In fact, George Washington grew hemp on Mount Vernon.

Over years of breeding, the cannabis plant was developed to have high levels of THC. It is this breeding to elevate THC levels that has spurred the illegal marijuana market. Because CBD comes from an entirely different plant than marijuana, its chemical properties are different.

THC is found in large quantities in cannabis, or what most people think of as the marijuana plant. Unlike cannabis, or marijuana, hemp contains low concentrations of THC. CBD Oils are generally made from the hemp plant so they contain high levels of CBD and trace levels of THC. As a result, CBD provides a less controversial alternative to THC for health benefits.

Limited Legalization in Texas: Compassionate Use Act

Texas CBD OilIn 2015, Governor Greg Abbott signed into law what’s known as the Texas Compassionate Use Act, which allows the use of CBD oils to treat seizures caused by intractable epilepsy. The Act legalizes oils containing CBD for treatment of epilepsy, as well as other chronic medical conditions for those who have not responded positively to use of federally approved medications.

The Act authorizes the Department of Public Safety to license dispensing organizations, which function similar to compounding pharmacies. Only neurologists and epileptologists are able to offer prescriptions for CBD oil. While the law was implemented in 2015, access to CBD was delayed until 2017 to allow for additional time to create a system to ensure that distribution is confined to genuine medical necessity along with a detailed registry identifying doctors and dispensaries.

Selling CBD Oils without FDA Approval

Under current federal law, unapproved sellers of CBD Oils who describe the medical benefits of CBD Oils should at the very least expect to get a Cease and Desist letter from the FDA with language along the lines of:

Your product is not generally recognized as safe and effective for the referenced uses and, therefore, the product is a “new drug” under section 201(p) of the Act [21 U.S.C. § 321(p)]. New drugs may not be legally introduced or delivered for introduction into interstate commerce without prior approval from the FDA, as described in section 505(a) of the Act [21 U.S.C. § 355(a)]; see also section 301(d) of the Act [21 U.S.C. § 331(d)]. FDA approves a new drug on the basis of scientific data submitted by a drug sponsor to demonstrate that the drug is safe and effective.

Furthermore, your product is offered for conditions that are not amenable to self-diagnosis and treatment by individuals who are not medical practitioners; therefore, adequate directions for use cannot be written so that a layperson can use this drug safely for its intended purposes. Thus, ______ is misbranded within the meaning of section 502(f)(1) of the Act, in that its labeling fails to bear adequate directions for use [21 U.S.C. § 352(f)(1)]. The introduction of a misbranded drug into interstate commerce is a violation of section 301(a) of the Act [21 U.S.C. § 331(a)].

What Can CBD Oil be Prescribed for in Texas?

Studies show CBD oil has promise in the following areas:
• Anxiety relief
• Anti-seizure
• Pain relief

However, in Texas, the only approved treatment at this time or the reduction or elimination of seizures. Notably, Florida passed a similar law in 2014, but in 2016, voters amended the law to allow for full THC forms of cannabis for those suffering from a broader variety of medical conditions, such as PTSD, MS, cancer, and HIV. Texas does not allow CBD oil for Parkinson’s patients.

In May of 2017, the Texas Department of Public Safety awarded licenses to produce, process, and dispense CBD oil to three companies. These companies, Cansortium Texas, Compassionate Cultivation, and Surterra Texas, each pay a licensing fee in order to operate facilities to produce and dispense CBD oils under the Compassionate Use Act.

Are THC Oils and Waxes Legal in Texas?

No. As of August 2017, possessing THC oil is not only a crime but also considered a more serious crime than possessing marijuana in its traditional form. In Texas, it is a felony to possess THC oil or wax. The seriousness of the felony varies based on the amount of THC oil possessed. For example, possession of less than one gram of THC oil is a state jail felony that is punishable by six months to two years in a state jail facility and a fine of up to $10,000.

Possessing one to four grams of THC oil is a third-degree felony, punishable by 2 to 10 years in prison and a fine of up to $10,000.

Possession of four to 400 grams of THC oil or wax is a second-degree felony. In Texas, a second-degree felony is punishable by 2 to 20 years in prison and a fine of up to $10,000.

Finally, possession of more than 400 grams of THC oil or THC wax is classified as a first-degree felony. This is the most serious felony for which someone can be charged for possessing THC oil or wax. This crime is punishable by 5 to 99 years in prison and up to a $10,000 fine.

Changes in Texas Law

House Bill 2107 was brought during the 2017 legislative session with a number of vocal supporters. The bill sought to remove the “low THC” restriction and amend the law to allow for “medicinal marijuana.” It also sought to expand the types of conditions that can be treated with cannabis by including post-traumatic stress disorder and terminal cancer. Finally, the bill sought to modify the language, from requiring a doctor’s prescription to requiring a doctor’s recommendation. This change intended to address concerns about the legality of physicians prescribing something prohibited by federal law. Despite having 77 sponsors and co-sponsors, 29 of whom were Republican, the bill died in committee. Given strong support, as well as national trends, changes in Texas law are likely to occur in the future.

As recently as July of 2018, the Texas Department of State Health Services backed off a decision to regulate products the include more than .03 percent CBD.

Contact Us

The complicated nature of the laws governing CBD oils makes the possession of CBD oil very defensible, especially if the CDB oil has no detectable amount of THC. If you have been arrested for an offense arising from the possession of CBD oil in North Texas, contact us at (817) 203-2220.

You can also contact us online:

 

The post Is CBD Oil Legal in Texas? | Prosecution Depends on Location (2019) appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

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Varghese Summersett PLLC Ranks No. 782 on the 2018 Inc. 5000
With Three-Year Revenue Growth of 639 Percent 

Inc. magazine today revealed on August 15 that the Fort Worth law firm of Varghese Summersett PLLC is No. 782 on its 37th annual Inc. 5000, the most prestigious ranking of the nation’s fastest-growing private companies. The list represents a unique look at the most successful companies within the American economy’s most dynamic segment—its independent small businesses. Microsoft, Dell, Domino’s Pizza, Pandora, Timberland, LinkedIn, Yelp, Zillow, and many other well-known names gained their first national exposure as honorees on the Inc. 5000.

 “We are honored to have made Inc. Magazine’s list of America’s fastest-growing companies,” said Benson Varghese, founder and managing partner of Varghese Summersett. “In four years, we’ve gone from hanging a shingle to becoming the largest criminal defense firm in North Texas. At the core of our success is a fantastic group of people. Fort Worth is home to a lot of great talent, and the community has embraced our efforts to provide unparalleled legal service. We’ve also recently added a family law practice, which we are very excited about.”

 Not only have the companies on the 2018 Inc. 5000 (which are listed online at Inc.com, with the top 500 companies featured in the September issue of Inc., available on newsstands August 15) been very competitive within their markets, but the list as a whole shows staggering growth compared with prior lists. The 2018 Inc. 5000 achieved an astounding three-year average growth of 538.2 percent, and a median rate of 171.8 percent. The Inc. 5000’s aggregate revenue was $206.1 billion in 2017, accounting for 664,095 jobs over the past three years.

 Complete results of the Inc. 5000, including company profiles and an interactive database that can be sorted by industry, region, and other criteria, can be found at www.inc.com/inc5000.

 “If your company is on the Inc. 5000, it’s unparalleled recognition of your years of hard work and sacrifice,” says Inc. editor in chief James Ledbetter. “The lines of business may come and go, or come and stay. What doesn’t change is the way entrepreneurs create and accelerate the forces that shape our lives.”

The annual Inc. 5000 event honoring the companies on the list will be held October 17 to 19, 2018, at the JW Marriott San Antonio Hill Country Resort, in San Antonio, Texas. As always, speakers include some of the greatest innovators and business leaders of our generation.

Varghese Summersett PLLC is the largest criminal defense firm in Tarrant County. The firm's attorneys represent clients at both the state and federal level and handle everything from DWI to murder to white collar crimes. Collectively, the attorneys bring together more than 100 years of criminal law experience and have tried more than 550 cases before Texas juries. All of the senior attorneys served as former state or federal prosecutors and four are Board Certified in Criminal Law, the highest designation an attorney can reach.

 


 
 

 

 

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As college students settle into the new sememster, jail is probably the last thing on their minds. But unfortunately, students are arrested every day for various offenses that could land them behind bars and subject them to hefty fines. Here are the top five college student crimes and what you should do if you do find yourself in handcuffs.

Possession of Marijuana

Marijuana is legal in a growing number of states, but Texas isn’t one of them. In Texas, it is still illegal to possess any amount of marijuana. While possession of drug paraphernalia is only a ticket, having a useable quantity can land you in jail for up to six months. Amounts as low as a third of a gram have been determined to be a usable quantity. As the quantity goes up, so does the punishment range.

 

Possession of Drug Paraphernalia Class C Misdemeanor $0-500 Fine
Possession of Marijuana Under Two Ounces Class B Misdemeanor Up to 180 days in Jail,$0-2,000 fine
Possession of Marijuana 2-4 oz Class A Misdemeanor Up to 1 year in Jail,$0-4,000 fine
Possession of Marijuana 4 oz to 5 lbs State Jail Felony 180 days – 2 Years, State Jail, Up to $10,000 fine.
Possession of Marijuana 5-50 lbs Third Degree Felony 2-10 Years Penitentiary, Up to $10,000 fine
Possession of Marijuana 50-2000 lbs Second Degree Felony 2-20 Years Penitentiary, Up to $10,000 fine.
Possession of Marijuana 2000+ lbs First Degree Felony 5-99 Years/Life,Up to $50,000 fine*

 

Theft 

Shoplifting is one of the most common offenses for which students are arrested. Almost every student accused of theft starts their story off the same way: “I wasn’t thinking, and I never thought I would get caught.”  A theft conviction is one of the worst convictions because it is considered a crime of moral turpitude, which could jeopardize scholarships, student loans, housing, and employment opportunities.

 

Theft Under $50 Class C Misdemeanor $0-500 Fine
Theft $50-500 Class B Misdemeanor Up to 180 days in Jail,$0-2,000 fine
Theft $500-$1500 Class A Misdemeanor Up to 1 year in Jail,$0-4,000 fine
Theft $1,500 – 20,000 State Jail Felony 180 days – 2 years, State Jail,Up to $10,000 fine
Theft $20, 000- 100,000 Third Degree Felony 2-10 Years Penitentiary,Up to $10,000 fine
Theft 100,000 – 200,000 Second Degree Felony 2-20 Years Penitentiary,Up to $10,000 fine
Theft over $200,000 First Degree Felony 5-99 Years/Life,Up to $10,000 fine

 

Assault  

In Texas, you can be charged with assault bodily injury if you hurt another person. If that person was even slightly injured, you could be looking at a year in jail. If you have that same fight with a peace officer, you could be facing 10 years in the penitentiary.

 

Assault by Contact Class C Misdemeanor $0-500 Fine
Assault Bodily Injury Class A Misdemeanor Up to 1 year in Jail, Up to $4,000 fine
Assault Public Servant – Bodily Injury Third Degree Felony 2-10 Years Penitentiary, Up to $10,000 fine
Aggravated Assault Deadly Weapon Second Degree Felony

2-20 Years Penitentiary,

Up to $10,000 fine

Assault Public Servant – Deadly Weapon First Degree Felony

5-99 Years/Life,

Up to $10,000 fine

 

Driving While Intoxicated

Being arrested for DWI is a very common charge for college students. In Texas, you can be legally intoxicated with any level of alcohol in your system. That’s because the prosecutors have three ways to prove you were intoxicated:

1. Blood alcohol concentration of .08 or greater, or
2. Not normal mentally due to the introduction of alcohol into the body, or
3. Not normal physically due to the introduction of alcohol into the body.

The last two definitions mean a person could be intoxicated at almost any blood alcohol concentration. Additionally, if you have any detectable of alcohol in your system under the age of 21, you can be charged with Driving Under the Influence (DUI) even if you are not intoxicated. In Texas, penalty ranges for DWI can depend on your BAC., whether you have priors, and the age of the passengers in the vehicle.

 

Driving Under the Influence Class C Misdemeanor $0-500 Fine
Driving While Intoxicated Class B Misdemeanor 3-180 days in Jail,Up to a $2,000 Fine
Driving While Intoxicated Blood Alcohol Concentration Equal to or Above .15 Class A Misdemeanor Up to 1 year in Jail,Up to a $4,000 fine
Driving While Intoxicated (Second) Class A Misdemeanor 30 days to 1 year in Jail, Up to a $4,000 fine
DWI with Child Passenger State Jail Felony 180 days – 2 Years State Jail, Up to $10,000 fine
DWI Felony (Third or more) Third Degree Felony 2-10 Years Penitentiary, Up to $10,000 fine

 

Criminal Trespass 

Students are often charged with criminal trespass. This can occur, for example, when a group of students decides to enter restricted areas on campus, explore abandoned buildings, or return to a location where they have ben prohibited.

 

Criminal Trespass Class B Misdemeanor 3-180 days in Jail. Up to a $2,000 Fine
Criminal Trespass Habitation Class A Misdemeanor Up to 1 year in Jail, $0-4,000 fine

 

How to Avoid a Conviction and Not Go to Jail

If you are arrested for any of these offenses, it’s important to contact a seasoned criminal defense attorney who has experience negotiating dismissals, no-bills and options that avoid a criminal conviction. Many first time offenders are eligible for diversion programs.

 

Outcome Conviction Cases Can the Record Be Sealed?
Dismissal No All types of cases Expunction Eligible
No Bill No Felony Cases Expunction Eligible
DIRECT Diversion Program No Drug Cases Expunction Eligible
FAIP Diversion Program Yes Felony DWI Cases  No.
Veteran’s Diversion Program No. Varies Expunction Eligible
DPP Diversion Program No. First-time offenders including Theft and Possession of Marijuana Expunction Eligible
Deferred Adjudication No All misdemeanors, most felonies Expunction on Class C offenses, Non-disclosures on everything else.

 

Contact us

Our team consists of Board Certified Criminal Law Specialists and former state and federal prosecutors with a proven track record of success. Call us at (817) 203-2220 for a complimentary strategy session.  During this call we will:

  • Discuss the facts of your case;
  • Discuss the legal issues involved, including the direct and collateral consequences of the allegation; and
  • Discuss the defenses that apply to your plan and in general terms discuss our approach to your case.

You can also contact us online:

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The post College Student Crimes: How to Avoid a Criminal Conviction in College appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

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Go to any college town in Texas, and there’s a high likelihood many students will have a fake ID tucked in their purse or pocket. In fact, it may be the one thing they never leave home without.

While a fake ID may be an underclassman’s most prized possession, it comes with big risks. Not only can using a fake ID in Texas land a student in trouble with the law, but it could possibly lead to school disciplinary action. Here’s a crash course on the law and the potential consequences of using a fake ID in Texas.

What are the Laws Regarding Fake IDs in Texas?

There are a number of ways college students obtain fake IDs in Texas. Some may borrow an ID from an older sibling or friend who bears a resemblance. Others may purchase a fake ID online. Some may attempt to forge or alter their birth date on a license or present a fake birth document to obtain a driver’s license or state ID card.  All of these scenarios would be illegal under Texas law and the offenses range from misdemeanors tickets to felonies.

Possession of a Fake Driver's LicenseClass A Misdemeanor
Misrepresentation of Age by MinorClass C Misdemeanor
Fictitious License or CertificateClass C Misdemeanor
Tampering with a Government RecordThird Degree Felony

Possession of a Fake Driver’s License in Texas

Texas Transportation Code 521.451 prohibits fake IDs in several ways, including lending your ID to another person, having more than one driver’s license, or providing false information when applying for a license or ID card. The statute states that a person may not:

  1. Knowingly display or possess a driver’s license or certificate that is fictitious or has been altered;
  2. Lend his or her driver’s license or certificate to another individual, or knowingly let another person use the license or certificate;
  3. Display or represent as his or her own another person’s driver license or certificate;
  4. Possess more than one valid certificates or driver’s licenses; or
  5. Provide a false name, address, or counterfeit document, or knowingly provide a false statement, omit information, or commit fraud in a renewal, original application, or application for a duplicate driver’s license or certificate.

Punishment for Possession of a Fake Driver’s License in Texas

Violation of this statute is a Class A misdemeanor, punishable by up to a year in jail and a $4,000 fine.

Misrepresentation of Age by a Minor

Under the Texas Alcoholic Beverage Code 106.07, a minor commits an offense if he or she falsely states that he or she is 21 years of age or older and presents any document that indicates that he or she is 21 years of age or older to a person engaged in selling or serving alcoholic beverages. An example of this might be misrepresenting yourself as 21 to a doorman at a bar.

Punishment for Misrepresentation of Age by a Minor

This offense is a Class C Misdemeanor punishable by up to a $500 fine. Misrepresentation of age by a minor is the most common fake ID offense in Texas.

Fictitious License or Certificate

Under Texas Transportation Code 521.453, it’s illegal to possess a fictitious license or certificate. The statute states that a person commits the offense of possession of a fictitious license if they possess, with the intent to represent that they are 21 years of age or older, a “deceptively similar” driver license or ID certificate – unless the document displays the statement “Not a Government Document” printed in ¼ inch solid red capital letters diagonally on both sides.

Punishment for Fictitious License or Certificate

This offense is considered a Class C Misdemeanor, which carries a penalty of up to a $500 if convicted.

Tampering with a Government Record

Texas Penal Code 37.10 is the statute that most likely would apply to someone who altered a driver’s license or identification card. An individual commits the offense of tampering with a government record if he or she:

  1. knowingly makes a false entry in, or false alteration of, a governmental record;
  2. makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record;
  3. intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record;
  4. possesses, sells, or offers to sell a governmental record or a blank governmental record form with intent that it be used unlawfully;
  5. makes, presents, or uses a governmental record with knowledge of its falsity;
  6. possesses, sells, or offers to sell a governmental record or a blank governmental record form with knowledge that it was obtained unlawfully.

Punishment for Tampering with a Government Record

This offense is considered a third degree felony, punishable by 2 to 10 years in prison and up to a $10,000 fine.

Can the Bar or Restaurant where I Used my Fake ID in Texas Get in Trouble?

Absolutely. In fact, the Texas Alcoholic Beverage Commission often conducts undercover operations where they knowing send minor-aged people into stores, bars and restaurants to purchase alcohol. If the sale is successful, the business and its employees could face administrative or criminal charges. For example, last summer the TABC announced that they would be conducting a series of back-to-school undercover operations as tens of thousands of college and university students head back to class.

How do Underage Students Get Caught Using a Fake ID?

Most of the time, an astute bouncer or bartender will notice the fake ID. In some cases – if the student is lucky – they will just take up the ID. The worst case scenario occurs when police are contacted and the student is ticketed or arrested.

Is There Any Way I Can Legally Drink before Age 21 in Texas?

Yes, with your parents. In Texas, minors can drink in the presence of their adult parent, guardian or spouse.

What Should I Do if I Get Arrested for a Fake ID?

If you are caught with a fake ID or manufacturing or selling counterfeit identification, call the law offices of Varghese Summersett as soon as possible. It’s imperative that our team gets to work immediately in an effort to prevent or defend a criminal prosecution. The ultimate goal would be to try and avoid a criminal conviction, which could go on your record and have far-reaching effects. Also, our attorneys will work to get in front of any school disciplinary hearings that could stem from the offense. Our consultations are confidential and you can call us even before you contact your parents.  Call 817-203-2220 today find out how we can help.

The post Using a Fake ID in Texas: A Look at the Criminal Consequences appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

Varghese Summersett

For many years, bonds in Tarrant County were set by municipal magistrates throughout the county. This meant individuals in different cities could receive vastly different bond amounts based on where they were arrested and which magistrate was on duty at the time. The process had its advantages – bonds were set quickly, and the bond amounts could be addressed again by a magistrate at the county-level, where bonds were generally set more uniformly. Yet, the process is not without its problems.

2017 study published by the Texas Judicial Council and Texas A&M criticized the methods in place in Tarrant County, noting only 6 percent of accused individuals were released on a personal bond compared to 60 percent of individuals in Travis County, which used a risk-based release system instead of a financial means based release system. (Tarrant and Travis “are the third and fifth most populous jurisdictions in Texas, home to 2.0 million and 1.2 million residents, respectively. Both metro areas are counted among the fastest growing in the state. Travis County has a jail population of approximately 2,600, of whom 75 percent are being held pretrial. Tarrant County jails currently hold about 3,400 defendants, 62 percent of whom are awaiting trial.”)

The study also found that each additional day of detention up to 30 days increased the likelihood of conviction by 2 percent each day.

At the beginning of 2018, Tarrant County’s new sheriff, Bill Waybourn, changed four decades of the county’s “customary practice” of housing arrestees at city jails and began to follow the requirements of Texas law under Article 2.18 of the Code of Criminal Procedure. The Code requires a person jailed on a warrant or court order to go into the custody of the sheriff – not city jails.

Additionally, this year the federal Fifth Circuit Court of Appeals also handed down, ODonnel v. Harris County – the type of case that keeps judges awake at night.

At issue in ODonnel was Harris County’s bail bond process. The Fifth Circuit ruled that the bail bond processes in Harris County violated Equal Protection, Due Process, and Texas law.

Texas Code of Criminal Procedure 17.15 requires judges to make an individualized assessment based on five factors, including the person’s ability to pay, the nature of the charge, and community safety. At the trial level, federal District Court Judge Lee H. Rosenthal wrote an opinion — over 190 pages long — blasting the realities of the Harris County system, where 40 percent of individuals charged with misdemeanors stayed in jail until their cases were resolved. In many of these cases, those accused could go home with “credit for time served” if they entered a guilty plea and accepted conviction – incentivizing pleas for individuals who could not afford to make bond.

Changes in Tarrant County’s Bail Bond Process

As a result of the ODonnel opinion, and the sheriff housing more inmates, the bail bond process in Tarrant County has had a number of changes. The magistrates are making an attempt to more carefully consider the 17.15 factors to make individualized determinations for individuals who have been arrested. These factors include:

  1. Considering whether the bond is set sufficiently high to ensure compliance. (In other words, is the financial consequence significant enough to ensure the accused will show up in court without a warrant being issued for their arrest?)
  2. Establishing that the bond is set low enough that it is not being used as an instrument of oppression. Remember, individuals charged with crimes are cloaked with a presumption of innocence. Bail bonds are not meant to be punitive or punishment, although for the citizen accused, it certainly can seem like everyone is treating them like they are already convicted.
  3. Evaluating the nature of the offense and the circumstances under which it was committed. (The initial arraignment is not an adversarial process, so the nature and circumstances are whatever is included the arrest warrant or probable cause affidavit, which are assuredly one-sided.)
  4. Considering the accused’s ability to make bond. Here the court can hear evidence on the accused’s ability (or inability to pay), but remember this is only one of the factors the court is required to consider.
  5. Ensuring the future safety of the victim and the community.

Tarrant County’s magistrates are requiring accused citizens to complete forms that disclose their ability to pay and to go through “risk assessments” to determine if they are likely to re-offend while on bond.

Why is it taking days to get someone out of Tarrant County custody?

The most common question we get now that Tarrant County has moved to central magistration is, “Why it is taking so long to get someone out of custody?” What used to take hours is now taking days. There are several reasons for this.

  1. As this article explains, the Tarrant County Central Magistration system requires information to be gathered and prepared for the magistrate to consider and this takes time.
  2. Tarrant County has not adapted to the sheer number of people who must be taken in front of magistrates.
  3. Magistration takes place three times a day, and not around the clock.
  4. Arrestees are sometimes only released to CSCD – meaning someone arraigned on Friday may not get out until Monday, even if they can pay the bond.

The Tarrant County Central Magistration: Four Steps

Tim Curry Justice Center

Now that a centralized magistrate system has been implemented by Tarrant County, magistrates are setting a person’s bond based on the alleged facts of the offense, risk, financial assessments, and an individual’s history of appearing in court – not based on recommended guidelines.  They are following four steps:

Step One: The magistrate judge will review the alleged facts of the offense. This review will include the Probable Cause affidavit, any commitment order, and the offense report if one is available. Notice these are all documents prepared by law enforcement. This initial hearing is not adversarial, so the defense attorney is generally unable to submit information for consideration at this initial setting. (The defense attorney may later file a Motion for Reconsideration if they would like to present evidence.)

Step Two: Magistrate staff will administer a risk assessment tool provided by Noble – the Ohio Risk Assessment System – which was highly recommended in the Texas Judicial Council and Texas A&M Study. ORAS has been used with great success through the country and has been in place for years in other jurisdictions in the state.

ORAS in Texas

ORAS is driven by the TCIC/NCIC criminal history and other objective facts such as age, gender, etc. The objective assessment is completed without interviewing the accused. It gives the magistrates a sense of who the client is and the likelihood that they will show up to court when they are supposed to.

ORAS Assessment

The ORAS results are available to Noble, and the judges, but it is not available to defense counsel at this time. In the first part of 2018, out of the approximately 5,600 risk assessments that were run, 3,500 came back as low risk; 1,404 came back as moderate risk; 194 were high-risk to re-offend with a property crime; 483 were high-risk to re-offend with a non-violent crime; and 42 were high-risk to re-offend with a drug crime.

Step Three: Magistrate staff will provide the judge with a “Failure to Appear Score” – which is a review of the last two years’ worth of data on the accused’s compliance with any past court settings. The Failure to Appear Score is based on the number of cases a person has had, the number of settings they missed, and the bond was held insufficient as a result. The Failure to Appear Score gives the magistrate a tool to assess the likelihood of a person showing up in court.

Step Four: The Financial Assessment which is referred to as the FART (Financial Assessment for Rapid Transmission, which could have easily been “Swift” instead of Rapid…) or information available to the magistrate through Tech Share Indigent Defense. The magistrate judges have assured us the information obtained from the citizens-accused is merely biographical and basic financial information and that these individuals will not be questioned without their attorneys.

The terribly-named FART Assessment seeks to provide the magistrate with a sense of the arrestee’s ability to pay for the bond. This assessment is completed by sheriff’s deputies as arrestees are booked-in at the jail. Question areas include:

  • Income
  • Expenses
  • Employment
  • Transportation
  • How long the person has lived in Tarrant County

If a person has asked for court-appointed counsel, the magistrate will also have the responses from that interview.

Once these steps are completed, bond conditions and the bond amount is set by the magistrate. The bond conditions are noted in triplicate with a copy that the accused signs.

As of July 1, 2018, North Richland Hills is the only municipality that is still setting its own bonds. Every other municipality is now using the Central Magistration system, which brings us to the Number 1 criticism of the new system:  The process of being booked in, bonded, and booked-out can now take 4 to 48 hours instead of what could have been done with a walk-through or a 1 to 2 hour process.

Motions to Modify Bonds

As a practical matter, having the bond modified after it is set will take a significant period of time if the modification is referred to magistrate court. After the preliminary bond has been set, a Motion to Reduce Bond may be filed with the court. The Motion may be referred to the magistrate court. If the matter is referred to the magistrate court, take the referral to the mag court coordinator. Let the coordinator know if a court reporter will be necessary. A hearing will be set with notice to both sides.

Motions to Set Revocation Bonds

In the past, when a Motion to Adjudicate or Motion to Revoke a probationer was filed, a hold was generally placed to prevent a bond from being set until the district court judge was willing to set the bond. Additionally, revocation bonds were not set if the court fees and costs were past due. Now, if a “Hold, No Bond” appears on the motion, the magistrate will still not set a bond. However, the district court judges also have the option to now put “Bond to be set by Magistrate” on the face of the Motion to Adjudicate or Revoke. If the motion is so designated, the defense attorney can contact the Mag Court coordinator to begin the Risk Assessment and Failure to Appear score and the magistrate can set a bond. The magistrate can now consider whether the fees are paid, but it is no longer an absolute requirement for bonds to be set. CSCD has now also made the chronological files or “chronos” available to the magistrate and judges to consider when setting a bond. Depending on which court the case is probated out for, the person may be released to “CSCD only” meaning the person could spend a few more days in jail after the bond is posted, just waiting for a probation officer to become available to process them out. (The typical example is someone whose bond is set on a Friday with “release to CSCD” as a condition. Even if the bond is posted, the person will likely not be released from custody until early to mid-morning on Monday.)

Unfiled Case Dockets

Every Tuesday and Thursday afternoon, individuals who are in custody but no case has been filed are brought to court to make bond determinations. An accused cannot be held without a reasonable or personal bond for more than:

  • 90 days on a felony without an indictment
  • 30 days on a Class A misdemeanor
  • 15 days on a Class B misdemeanor
  • 5 days on a Class C misdemeanor.

Warrantless Arrests

In the case of a warrantless arrest, there are special rules involving bail. In the case of an arrest in which there was a warrant, a magistrate has already determined that there is probable cause to believe the accused committed a crime. This is not so in the case of a warrantless arrest and the magistrate will be required to determine probable cause.

If someone is arrested for a misdemeanor, the magistrate must make a probable cause determination within 24 hours of arrest. If that determination is not made, the accused must be released on a bond not to exceed $5,000. But if the accused cannot obtain a surety or deposit the full amount of the bond, they must still be released on a personal bond.

If someone is arrested for a felony, the magistrate must make a probable cause determination within 48 hours of arrest. If that determination is not made, the accused must be released on a bond not to exceed $10,000. But if the accused cannot obtain a surety or deposit the full amount of the bond, they must still be released on a personal bond. (TX CCP Art. 17.033)

Contact our Tarrant County Defense Lawyers

If you or a loved one has been arrested for an alleged offense in Tarrant County, give us a call at (817) 203-2220 or send us a message online.

The post Tarrant County Central Magistration appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

Varghese Summersett

For many years, bonds in Tarrant County were set by municipal magistrates throughout the county. This meant individuals in different cities could receive vastly different bond amounts based on where they were arrested and which magistrate was on duty at the time. The process had its advantages – bonds were set quickly, and the bond amounts could be addressed again by a magistrate at the county-level, where bonds were generally set more uniformly. Yet, the process is not without its problems.

2017 study published by the Texas Judicial Council and Texas A&M criticized the methods in place in Tarrant County, noting only 6 percent of accused individuals were released on a personal bond compared to 60 percent of individuals in Travis County, which used a risk-based release system instead of a financial means based release system. (Tarrant and Travis “are the third and fifth most populous jurisdictions in Texas, home to 2.0 million and 1.2 million residents, respectively. Both metro areas are counted among the fastest growing in the state. Travis County has a jail population of approximately 2,600, of whom 75 percent are being held pretrial. Tarrant County jails currently hold about 3,400 defendants, 62 percent of whom are awaiting trial.”)

The study also found that each additional day of detention up to 30 days increased the likelihood of conviction by 2 percent each day.

At the beginning of 2018, Tarrant County’s new sheriff, Bill Waybourn, changed four decades of the county’s “customary practice” of housing arrestees at city jails and began to follow the requirements of Texas law under Article 2.18 of the Code of Criminal Procedure. The Code requires a person jailed on a warrant or court order to go into the custody of the sheriff – not city jails.

Additionally, this year the federal Fifth Circuit Court of Appeals also handed down, ODonnel v. Harris County – the type of case that keeps judges awake at night.

At issue in ODonnel was Harris County’s bail bond process. The Fifth Circuit ruled that the bail bond processes in Harris County violated Equal Protection, Due Process, and Texas law.

Texas Code of Criminal Procedure 17.15 requires judges to make an individualized assessment based on five factors, including the person’s ability to pay, the nature of the charge, and community safety. At the trial level, federal District Court Judge Lee H. Rosenthal wrote an opinion — over 190 pages long — blasting the realities of the Harris County system, where 40 percent of individuals charged with misdemeanors stayed in jail until their cases were resolved. In many of these cases, those accused could go home with “credit for time served” if they entered a guilty plea and accepted conviction – incentivizing pleas for individuals who could not afford to make bond.

Changes in Tarrant County’s Bail Bond Process

As a result of the ODonnel opinion, and the sheriff housing more inmates, the bail bond process in Tarrant County has had a number of changes. The magistrates are making an attempt to more carefully consider the 17.15 factors to make individualized determinations for individuals who have been arrested. These factors include:

  1. Considering whether the bond is set sufficiently high to ensure compliance. (In other words, is the financial consequence significant enough to ensure the accused will show up in court without a warrant being issued for their arrest?)
  2. Establishing that the bond is set low enough that it is not being used as an instrument of oppression. Remember, individuals charged with crimes are cloaked with a presumption of innocence. Bail bonds are not meant to be punitive or punishment, although for the citizen accused, it certainly can seem like everyone is treating them like they are already convicted.
  3. Evaluating the nature of the offense and the circumstances under which it was committed. (The initial arraignment is not an adversarial process, so the nature and circumstances are whatever is included the arrest warrant or probable cause affidavit, which are assuredly one-sided.)
  4. Considering the accused’s ability to make bond. Here the court can hear evidence on the accused’s ability (or inability to pay), but remember this is only one of the factors the court is required to consider.
  5. Ensuring the future safety of the victim and the community.

Tarrant County’s magistrates are requiring accused citizens to complete forms that disclose their ability to pay and to go through “risk assessments” to determine if they are likely to re-offend while on bond.

Why is it taking days to get someone out of Tarrant County custody?

The most common question we get now that Tarrant County has moved to central magistration is, “Why it is taking so long to get someone out of custody?” What used to take hours is now taking days. There are several reasons for this.

  1. As this article explains, the Tarrant County Central Magistration system requires information to be gathered and prepared for the magistrate to consider and this takes time.
  2. Tarrant County has not adapted to the sheer number of people who must be taken in front of magistrates.
  3. Magistration takes place three times a day, and not around the clock.
  4. Arrestees are sometimes only released to CSCD – meaning someone arraigned on Friday may not get out until Monday, even if they can pay the bond.

The Tarrant County Central Magistration: Four Steps

Tim Curry Justice Center

Now that a centralized magistrate system has been implemented by Tarrant County, magistrates are setting a person’s bond based on the alleged facts of the offense, risk, financial assessments, and an individual’s history of appearing in court – not based on recommended guidelines.  They are following four steps:

Step One: The magistrate judge will review the alleged facts of the offense. This review will include the Probable Cause affidavit, any commitment order, and the offense report if one is available. Notice these are all documents prepared by law enforcement. This initial hearing is not adversarial, so the defense attorney is generally unable to submit information for consideration at this initial setting. (The defense attorney may later file a Motion for Reconsideration if they would like to present evidence.)

Step Two: Magistrate staff will administer a risk assessment tool provided by Noble – the Ohio Risk Assessment System – which was highly recommended in the Texas Judicial Council and Texas A&M Study. ORAS has been used with great success through the country and has been in place for years in other jurisdictions in the state.

ORAS in Texas

ORAS is driven by the TCIC/NCIC criminal history and other objective facts such as age, gender, etc. The objective assessment is completed without interviewing the accused. It gives the magistrates a sense of who the client is and the likelihood that they will show up to court when they are supposed to.

ORAS Assessment

The ORAS results are available to Noble, and the judges, but it is not available to defense counsel at this time. In the first part of 2018, out of the approximately 5,600 risk assessments that were run, 3,500 came back as low risk; 1,404 came back as moderate risk; 194 were high-risk to re-offend with a property crime; 483 were high-risk to re-offend with a non-violent crime; and 42 were high-risk to re-offend with a drug crime.

Step Three: Magistrate staff will provide the judge with a “Failure to Appear Score” – which is a review of the last two years’ worth of data on the accused’s compliance with any past court settings. The Failure to Appear Score is based on the number of cases a person has had, the number of settings they missed, and the bond was held insufficient as a result. The Failure to Appear Score gives the magistrate a tool to assess the likelihood of a person showing up in court.

Step Four: The Financial Assessment which is referred to as the FART (Financial Assessment for Rapid Transmission, which could have easily been “Swift” instead of Rapid…) or information available to the magistrate through Tech Share Indigent Defense. The magistrate judges have assured us the information obtained from the citizens-accused is merely biographical and basic financial information and that these individuals will not be questioned without their attorneys.

The terribly-named FART Assessment seeks to provide the magistrate with a sense of the arrestee’s ability to pay for the bond. This assessment is completed by sheriff’s deputies as arrestees are booked-in at the jail. Question areas include:

  • Income
  • Expenses
  • Employment
  • Transportation
  • How long the person has lived in Tarrant County

If a person has asked for court-appointed counsel, the magistrate will also have the responses from that interview.

Once these steps are completed, bond conditions and the bond amount is set by the magistrate. The bond conditions are noted in triplicate with a copy that the accused signs.

As of July 1, 2018, North Richland Hills is the only municipality that is still setting its own bonds. Every other municipality is now using the Central Magistration system, which brings us to the Number 1 criticism of the new system:  The process of being booked in, bonded, and booked-out can now take 4 to 48 hours instead of what could have been done with a walk-through or a 1 to 2 hour process.

Motions to Modify Bonds

As a practical matter, having the bond modified after it is set will take a significant period of time if the modification is referred to magistrate court. After the preliminary bond has been set, a Motion to Reduce Bond may be filed with the court. The Motion may be referred to the magistrate court. If the matter is referred to the magistrate court, take the referral to the mag court coordinator. Let the coordinator know if a court reporter will be necessary. A hearing will be set with notice to both sides.

Motions to Set Revocation Bonds

In the past, when a Motion to Adjudicate or Motion to Revoke a probationer was filed, a hold was generally placed to prevent a bond from being set until the district court judge was willing to set the bond. Additionally, revocation bonds were not set if the court fees and costs were past due. Now, if a “Hold, No Bond” appears on the motion, the magistrate will still not set a bond. However, the district court judges also have the option to now put “Bond to be set by Magistrate” on the face of the Motion to Adjudicate or Revoke. If the motion is so designated, the defense attorney can contact the Mag Court coordinator to begin the Risk Assessment and Failure to Appear score and the magistrate can set a bond. The magistrate can now consider whether the fees are paid, but it is no longer an absolute requirement for bonds to be set. CSCD has now also made the chronological files or “chronos” available to the magistrate and judges to consider when setting a bond. Depending on which court the case is probated out for, the person may be released to “CSCD only” meaning the person could spend a few more days in jail after the bond is posted, just waiting for a probation officer to become available to process them out. (The typical example is someone whose bond is set on a Friday with “release to CSCD” as a condition. Even if the bond is posted, the person will likely not be released from custody until early to mid-morning on Monday.)

Unfiled Case Dockets

Every Tuesday and Thursday afternoon, individuals who are in custody but no case has been filed are brought to court to make bond determinations. An accused cannot be held without a reasonable or personal bond for more than:

  • 90 days on a felony without an indictment
  • 30 days on a Class A misdemeanor
  • 15 days on a Class B misdemeanor
  • 5 days on a Class C misdemeanor.

Warrantless Arrests

In the case of a warrantless arrest, there are special rules involving bail. In the case of an arrest in which there was a warrant, a magistrate has already determined that there is probable cause to believe the accused committed a crime. This is not so in the case of a warrantless arrest and the magistrate will be required to determine probable cause.

If someone is arrested for a misdemeanor, the magistrate must make a probable cause determination within 24 hours of arrest. If that determination is not made, the accused must be released on a bond not to exceed $5,000. But if the accused cannot obtain a surety or deposit the full amount of the bond, they must still be released on a personal bond.

If someone is arrested for a felony, the magistrate must make a probable cause determination within 48 hours of arrest. If that determination is not made, the accused must be released on a bond not to exceed $10,000. But if the accused cannot obtain a surety or deposit the full amount of the bond, they must still be released on a personal bond. (TX CCP Art. 17.033)

Contact our Tarrant County Defense Lawyers

If you or a loved one has been arrested for an alleged offense in Tarrant County, give us a call at (817) 203-2220 or send us a message online.

The post Tarrant County Magistration | Arraignment | How Long to Make Bond? appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

Varghese Summersett

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In a recent 5-4 decision, the Supreme Court held that police generally need a search warrant to gain access to your cellphone’s location information. Specifically, in Carpenter v. United States, the Court noted allowing the police to access minute-to-minute location information is the type of surveillance the Constitution’s framers sought to protect against without a search warrant. The Court went on to say that giving police this tracking information without a warrant would be akin to making someone wear an ankle-monitor without a judge’s order.

The Fourth Amendment and Cell Site Location Information

The Fourth Amendment protects your property interests and provides for some privacy protections. The text of this amendment states that you are protected from unreasonable searches and seizures, and that you, your home, your papers, and your things are secure and protected from warrantless search. Furthermore, warrants are to be issued only when probable cause is found, supported either by oath or other affirmation, which includes detail on what is to be searched, where it will be searched, and the person or items that need to be seized.

Probable cause is present for a crime when your actions (facts and circumstances) lead to a reasonable suspicion and need for further information. As the Court reiterated, warrants need “some quantum of individualized suspicion.” U.S. v. Martinez-Fuerte, 428 U.S. 543, 560–561 (1976).

The point of the Fourth Amendment is to keep the government from unreasonably intruding into your life and your freedom. This being said, there are exceptions (consent to the search, imminent danger, exigent circumstances, a search incident to arrest, items in plain view, etc. to name a few) to Fourth Amendment protections, so long as the government is doing the searching and so long as the search is reasonable.

Cell Phone Location Data

Cell phones communicate with cell sites, which can be found at cellphone towers, some light-posts, tops of buildings, and many other areas. When you move with your cell phone, the phone connects to these cell sites and when you place a call or send a text, the phone time stamps the activity which can be stored. This time-stamped information is called cell-site location information or CSLI. Cell site location information is often stored by service providers for years.

There are over 300,000 cell sites in the United States. Your cellphone provider takes the information relayed to cell sites and stores the information to improve their service and coverage. Today, CSLI includes location information that is fairly accurate.

cell site data

Carpenter v. United States (2018)

After a string of robberies in 2010 and 2011, police caught several suspects. Ironically, the robberies were for cell phones being taken from stores like Radio Shack and T-Mobile.  One of them confessed to a series of nine robberies and provided details about their leader, Timothy Carpenter. The police then requested an order for 127 days of tracking information from Carpenter’s cellphone provider. Using all the data received, there were 12,898 data points regarding locations that followed Carpenter’s movements. The location on Carpenter’s phone closely matched the places where robberies occurred and this location information was used as evidence in his conviction. Carpenter was convicted of multiple robbery counts and multiple counts of carrying a firearm during a federal, violent crime.

Carpenter appealed arguing that he was protected from a warrantless search of his cell phone records. Instead of getting a warrant, the police had obtained a court order using the Stored Communications Act (18 U. S. C. §2703(d)). This law allows phone companies to give your records to police if there were reasonable grounds to believe that the records needed would move a criminal investigation along. The standard was lower using this law than the requirements for a warrant, since police just needed specific and articulable facts that led to a reasonable belief that information requested would be related and important (relevant and material) to the investigation. The Stored Communications Act requires “specific and articulable facts showing there are reasonable grounds to believe” that electronic data being sought is relevant to an ongoing criminal investigation. The Stored Communications Act, however, did not require a showing of probable cause.

Carpenter argued obtaining his Cell Site Location Information amounted to a Fourth Amendment search. The Supreme Court focused on whether the third-party doctrine applied to cell site location information. The third-party doctrine provides that the Fourth Amendment is not implicated when the police obtain information revealed to third parties (like bank records and call records.)

Expect to see litigation involving cell site simulators to reach the Supreme Court.

What changes with Carpenter v. United States?

Before, police did not need a warrant for a lot of cellphone information because if you were sharing your information with a third party, like your cellphone provider, getting access, for example, to the numbers you called was not protected. However, the justices recognized in this decision how tied we are to our phones, and that being able to track a phone’s location when it is practically always in our pockets, would be a gross violation of our expectation of privacy without first obtaining a search warrant.

The Court found that the facts of this case put it between two areas of law: your expectation of privacy when it comes to your location and your movements versus your expectation of privacy when you voluntarily give your information over to third parties (i.e. your cellphone provider). This ruling distinguished previous case law, such as giving over records of numbers dialed or business records from location-related records. In previous cases, information sought was more limited. Here, location information is a “comprehensive record” that provides accurate details of where you have been. Additionally, the court analyzed the fact that cell phones can log your location without you actually using the phone other than turning it on. Because of these two important facts, the Court held that unless an exception to the warrant requirement applies, police generally need a warrant supported by probable cause to be able to access location records.

What does Carpenter v. United States cover?

Specifically, the decision covered location information (CSLI). Police need a search warrant to access this location information from your phone.

What does Carpenter v. United States exclude?

Case precedent involving financial, banking, and office-related records still holds. Furthermore, warrantless searches may be performed in cases of emergencies or in cases of threats to national security. The Court specifically stated that the decision was very narrow, and that the decision did not cover real time CSLI or “tower dumps,” which is the process of downloading information about all the devices connected to a specific cell site during a specific time frame.

Contact Us

Was your cell site location information obtained without a warrant in a criminal case? Give us a call at 817-203-2220.

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The post Supreme Court: Warrant Required to Access Cell Site Location Information appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.