What is a Federal Sentencing Memorandum?

Criminal defense attorneys write a federal sentencing memorandum to help persuade the judge that the lowest-possible sentence is appropriate at a federal sentencing hearing. It can be one of the most impactful things a federal practitioner does and often carries a lot of weight with the judge.

The memorandum, also called a sentencing memo, aims to present a fuller picture of the defendant’s circumstances, including biographical history, personal hardships, and factors that may have led to poor decisions, including the offense at hand.

The document also includes positive attributes and redeeming qualities, relevant background on the defendant’s health, mental health, substance abuse history, and dysfunctional family dynamics.

The court will use three reports when determining the appropriate sentence. The others are the probation department’s presentence investigation report and the prosecutor’s sentencing memorandum.

All three documents describe the offense, nature, and circumstances surrounding the events. The defense frames the offense in the most favorable light for the defendant. The probation officer’s presentence investigation report (PSR or PSI report) and the prosecutor’s memorandum oppositely frame the offense.

The judge reviews the PSR, the memorandums from both sides, and any character testimonials for the defendant before sentencing.

If you’re facing a federal sentence, legal representation is vital. Varghese Summersett’s team of federal defense attorneys includes former federal and state prosecutors.

This blog post explains federal sentencing memorandums, their importance, and how judges use them.

What information is included in a federal sentencing memorandum?

Federal sentencing guidelines limit much of what the judge can consider. Savvy federal defense attorneys, however, can ensure the judge is aware of background information that better reflects on their client in a well-written federal sentencing memorandum.

These areas include, but are not limited to:

• Highlighting improvements in the defendant’s behavior and mindset;
• Outlining the defendant’s future goals and aspirations;
• Defining and emphasizing the defendant’s redeeming qualities;
• Contrasting their sentencing with other defendants’ or co-conspirators’ sentences;
• Emphasizing the defendant’s lack of danger to society;
• Making specific requests about where the defendant should be housed – and why.

The defense’s memorandum typically challenges any incorrect claims made by the prosecutor or the probation officer.

What is the reason for a federal sentencing memorandum?

A federal sentencing memorandum allows the defense to persuade the judge why a lighter sentence would be appropriate. The defense typically argues reasons for a sentence lower than the advisory guidelines in the memorandum.

For instance, if the sentencing guidelines call for an advisory 60-month sentence, the defense memorandum would argue why it should instead be a 24-month sentence.

Letters of support from family members, friends, and other members of the community help testify to the defendant’s moral character and reputation.

What is the federal probation officer’s interview with the defendant?

During the presentence investigation process, the federal probation officer typically interviews the defendant for about an hour. The interview often occurs immediately following the change of plea hearing or after a guilty verdict if the defendant goes to trial. If not, the probation officer schedules the presentence report interview with the defendant and their attorney.

The probation officer is likely to ask the defendant about details of the offense, their criminal history, family history, education, employment, and other significant factors affecting their lives.

The probation officer will attempt to verify the defendant’s account with a family member or close friend.

The defendant could be required to provide proof of the information sought by the probation officer, including employment records, marriage or divorce documents, medical records, military service records, school transcripts, and any counseling or mental health records.

The officer will attempt to obtain documentation separately if the defendant is unwilling or unable to provide it.
The officer could also visit the defendant’s residence to assess their living conditions, relationships, and community ties.

Federal sentencing memorandums usually quote sections of the presentence report, which underscores the importance of the interview.

What is the probation department’s presentence report?

A presentence investigation report from the probation department holds considerable weight in federal case procedure, and judges rely on its contents for sentencing.

The PSR describes the defendant’s background, prior criminal history, family situation, and personal history. The PSR also describes the offense in which the defendant was convicted and features characteristics that differentiate the defendant from others convicted under the same provision of federal law.

For example, the PSR would include the type, quantity, and number of sales the defendant made in a drug case. In a fraud case, the PSR could consist of the number of victims, the intended loss amount, and the sophistication of the fraud by the defendant.

The offense’s characteristics substantially impact the appropriate calculation of the sentencing range of the defendant’s advisory sentencing guidelines.

The PSR includes a “recommended guideline range” for sentencing based on the offense, enhancements and reductions, and criminal history. This helps inform the judge’s evaluation of a fair sentence to impose.

The defense’s federal sentencing memorandum should address the PSR and challenge any inaccurate or unfair characterizations suggested in the probation department’s report.

Does a federal defendant have to answer the probation officer’s questions?

No, defendants can refuse to answer questions or provide information during the presentence interview. An attorney may advise the defendant not to answer specific questions or sign releases of information.

What do judges consider when reviewing federal sentencing memorandum?

Title 18 U.S.Code § 3553 requires judges to consider certain factors when determining the sentencing in a case. The code states, “the court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth …” by considering:

• The nature and circumstances of the offense and the history and characteristics of the defendant;
• The need for the sentence imposed to (1) reflect the seriousness of the crime, promote respect for the law, and provide just punishment, (2) afford adequate deterrence to criminal conduct; (3) protect the public; (4) provide education and vocational training;
• The kinds of sentences available;
• The need for warranted sentence disparity among similarly situated defendants;
• And the need to provide restitution to the victim.

When does a federal sentencing memorandum need to be filed?

A federal sentencing memorandum from the defense should be filed with the court within 14 days of receiving the presentence investigation report from the probation department.

How are federal cases different from state court cases?

In state court practice, parties rarely file formal federal sentencing memorandum, especially after a negotiated plea agreement is reached.

Conversely, federal court practice usually includes formal written sentencing positions from the defendant and the government.

Why is this? Mostly it’s because federal judges have much more sentencing discretion than state judges.

Even in federal cases in which a plea has been negotiated, the judge often has substantial discretion to stray from the guidelines range agreed to by both sides, whether it’s increasing or decreasing the punishment.

Federal sentencing hearings are typically not lengthy processes. Therefore, the federal sentencing memorandum could be the defendant’s most crucial document.

What is included in a federal sentencing memorandum?

The defendant’s history and personal life are also factored into the judge’s sentencing determination. The federal criminal defense attorney is wise to supplement the federal sentencing memorandum with letters addressed to the judge from family and friends advocating for a less harsh sentence.

The defendant also often presents a letter to the court explaining their conduct and requesting leniency.

What is the federal prosecutor’s federal sentencing memorandum?

The government’s prosecutor files a federal sentencing memorandum supporting its sentencing position. As you’d expect, the prosecutor’s memorandum typically requests a harsher sentence than the defense.

The government’s memorandum will include its own guidelines calculation and, most likely, a less-favorable assessment of the applicability of the equitable factors in Title 18 USC § 3553(a).

The prosecutor will likely argue against any downward departure or defense-favorable variance from the sentencing guidelines range.

Do you need a federal criminal defense lawyer? Call us.

If you or a family member is facing federal sentencing, you need an accomplished Varghese Summersett federal criminal defense attorney fighting for you. We will listen to your story and learn your background to ensure we craft an effective federal sentencing memorandum on your behalf.

The memorandum’s strength could substantially affect receiving the best possible outcome in your case. The earlier we are involved, the better your result could be. Call us for a free consultation at 817-203-2220.

Can social media be used as evidence in Texas criminal cases?

Most of us have heard the famous Miranda Rights line “anything you say can and will be used against you in a court of law” from film and television.

That includes just about anything you’ve posted on social media.

Law enforcement and prosecutors can use your social media history as evidence against you in Texas criminal cases in multiple ways.
The comments, images, videos, likes, and shares on social platforms such as Facebook, Twitter, and Instagram can easily be searched by investigators, and the information can be used in court.

Furthermore, investigators can request access to certain restricted social media data using a judge-approved search warrant, subpoena, or other court order.

It’s not just the content of your social media accounts that could hurt your case. The embedded information connected to online apps can help prosecutors build an incriminating timeline against you.

The Varghese Summersett criminal defense team is adept at working with clients to minimize any potential social media issues. Our firm includes Board Certified criminal defense attorneys and former prosecutors who will proactively defend your rights.

In this post, we’ll examine how social media can be used as evidence, whether deleting posts and accounts is helpful, and how to handle your social media history during a criminal case in Texas.

How can social media posts harm my Texas criminal case?

Prosecutors can use any incriminating social media information in court. Examples of social media posts that could harm your case include:

• Threatening messages
• Comments or images that contradict an alibi
• Anything that contradicts your previous testimony during an investigation
• Information that identifies your location before, during, and after an alleged crime
• Comments by family or friends that could be misinterpreted

Are my private social media communications safe from investigators?

Not really. Even if you use the highest privacy settings on your social media accounts, prosecutors and investigators could obtain a search warrant to explore your electronic devices for incriminating data, including:

• Records of deleted social media posts;
• Private posts shared with friends, and
• Private messages, including emails.

Should I delete social media accounts if I’m facing criminal charges?

If you’re facing criminal charges, you might think it’s a smart move to delete social media posts or entire accounts with potentially incriminating information.

Not necessarily. You should consult your criminal defense attorney before deleting anything. Prosecutors and investigators could view any deletions as an attempt to erase evidence. Even worse, it could open you to criminal liability for tampering with evidence. Either way, it could hurt your defense. A skilled defense attorney will have a strong understanding of how you should handle your online history.

It’s not just about the content on your social media feeds

The content of your social media feeds is not the only thing you need to be concerned about. Prosecutors and law enforcement can use information such as your location, time stamps, and other encrypted data to help make their case against you. It’s not just your social media history that could hurt you; investigators can search other feeds that include photos or information that place you somewhere at a specific time.

It’s essential to be open with your defense attorney about any potentially problematic social media data. Defense attorneys don’t want to be caught by surprise by the prosecutor with damaging social media evidence.

Can social media be used as evidence in Texas DWI cases?

Yes, social media history can be used as evidence against you in a driving while intoxicated case. Investigators and prosecutors will often search your social media timelines to see if there is anything relevant to your arrest. They can also search posts made by others to look for incriminating evidence against you. It could hurt your case if a friend posts an image showing you drinking a glass of wine 30 minutes before your arrest.

The posts don’t necessarily have to show you drinking to incriminate you. Posts on social media help provide a timeline of your whereabouts. If you checked in online from a bar earlier in the night, it could be detrimental to your defense. Deleting social media posts is unlikely to protect you.

Law enforcement could retrieve deleted posts, and they could view the deletion as an attempt to destroy evidence. That will not help your case. An experienced criminal defense attorney will help you handle potentially harmful posts.

Does attorney-client privilege include social media and email?

Yes, written and verbal communication between you and your attorney about a case is protected under attorney-client privilege. This includes email exchanges and private messages through social media apps. Remember, do not discuss your case with family or friends because it could be used against you in court.

How should you handle social media during a criminal case?

If you’re facing criminal charges, it’s essential to ramp up your privacy regarding your social media accounts.

You should set your privacy settings to the strictest possible and decline all friend requests from strangers. It’s wise to avoid commenting on or tagging other social media posts while your case is unresolved. Ask friends and family to avoid posting comments about you or your pending case.

What is the ‘reasonable juror’ standard in Texas?

Texas uses the reasonable juror standard to determine the authenticity of social media evidence. This standard, via Tienda v. State in 2012, requires that the evidence provider illustrates that the “supplied facts are sufficient to support a reasonable jury determination that the evidence he has proffered is authentic.”

The Texas Rules of Evidence require that the evidence be relevant to the case, admissible for the purpose intended, and authenticable.

How is social media obtained as evidence in a Texas court?

There are three significant ways prosecutors and defense attorneys gather social media history for use as evidence in a Texas criminal case.

Direct access
The simplest and most direct way to gather social media evidence is by going directly to the source and using what is available in the public domain. Often, evidence gathered in the public domain can lead to more intrusive discovery requests later, including interrogatories and depositions. Public posts and communication on an internet forum or social media app don’t require a court order.

Traditional discovery procedure
When someone’s social media or online communication is unavailable to the general public, information is gathered in court through the traditional discovery process. Interrogatories are used to request screen names or online identities used on websites or social media applications.

Forensic examination
In rare cases, a judge could order a forensic examination of a computer to search for hidden or deleted information that could be used as evidence. In most cases, however, direct access to the opposing party’s computer isn’t allowed.
In a 2018 ruling, the Texas Supreme Court held that direct access to someone’s computer or electronic storage device requires, at a minimum, that the benefits of the search outweigh the burden imposed on the discovered party.

What are the Texas standards for social media evidence admissibility?

In Texas criminal cases, social media evidence is governed under the same standards as other forms of evidence. The evidence must be relevant to the case, authenticated, and can’t be hearsay.

Relevance: This means the evidence tends to make the existence of any material fact more or less probable than it would be without the evidence. Also, the probative value must outweigh the prejudicial effect, which means the degree to which a piece of evidence proves an allegation must be more than the amount the evidence diminishes the court’s ability to determine the truth.

Authentication: Texas Rules of Civil Procedure section 193.7 allows for information from social media sites to be authenticated:

“A party’s production of a document in response to written discovery authenticates the document for use against that party in any pretrial proceeding or at trial unless – within ten days or a longer or shorter time ordered by the court, after the producing party has actual notice that the document will be used – the party objects to the authenticity of the document, or any part of it, stating the specific basis for the objection.

An objection must be on the record or in writing and have a good faith factual and legal basis. An objection to the authenticity of only part of a document does not affect the authenticity of the remainder. If an objection is made, the party attempting to use the document should be given a reasonable opportunity to establish its authenticity.”
The rule creates a presumption of authenticity for documents produced during discovery.

Hearsay: Typically, any out-of-court statement offered in evidence to validate an assertion of fact is hearsay and not admissible. Exceptions to the hearsay rule could apply to any evidence, including social media data.

What social media data is discoverable in Texas courts?

The Texas Rules of Civil Procedure section 192.3 provide that discovery is permissible if it pertains to relevant evidence or may lead to the discovery of admissible evidence.

The scope of discovery includes documents and tangible things under which social media information falls.

Is social media being used as evidence against you? Call us.

Having a criminal defense attorney proficient with technology and the quickly evolving presence of social media is vital. At Varghese Summersett, our criminal defense team knows how to defend against such evidence and how to use it to fight for our clients most effectively. For a free consultation on your case, call 817-203-2220.

What’s the difference between a protective order and a restraining order in Texas?

A protective order is an order that is most commonly used to prevent acts of family violence (including violence in a dating relationship) and sexual assaults. Temporary Restraining Orders are used in the civil context to avoid some sort of immediate and irreparable injury, loss, or damage. Temporary Restraining Orders in a family case can bind the other parent or spouse from certain conduct like transporting a child out-of-state, unenrolling them from school, withdrawing funds, taking out loans, or disposing of property.

Protective Orders and Restraining Orders in Texas

Protective Orders in Texas are sometimes confused with Restraining Orders in Texas. Because both terms have multiple meanings under Texas law, the terms are often confused. This article was written in hopes of explaining protective orders and restraining orders in Texas, the types of each order, and the differences between these orders.

Protective Order in Texas

Even lawyers struggle to understand protective orders in Texas – and perhaps for good reason. Most lawyers who deal with protective orders practice either criminal law or family law. Yet, protective orders are found both in the Family Code as well as in the Code of Criminal Procedure.

What types of Protective Orders are there in Texas?

A protective order is a court order issued to prevent continuing acts of family violence, human trafficking, or stalking. There are three types of protective orders in Texas:

1. Emergency Protective Orders
2. Temporary Ex Parte Protective Orders
3. Permanent (or Final) Protective Orders

What types of Restraining Orders are there in Texas?

People also often think about Temporary Restraining Orders when they think about protective orders, so we will cover TROs in this article as well even though they are distinct from Protective Orders. Temporary Restraining Orders themselves take two forms:

1. Temporary Restraining Orders (Civil)
2. Temporary Restraining Orders (Family)

Magistrate’s Order of Emergency Protection (EPO)

The Magistrate’s Order of Emergency Protection is also referred to as an Emergency Protective Order and is the most common type of protective order in Texas. A magistrate’s order of emergency protection is authorized under Texas Code of Criminal Procedure Article 17.292.

Emergency Protective Orders are Tied to an Arrest

A Magistrate’s Order of Emergency Protection can only be issued after an arrest. You cannot get a Magistrate’s Order of Emergency Protective without an arrest. Additionally, it only applies to the following offenses:

1. A family violence offense (this includes dating relationships)
2. Trafficking and Continuous Trafficking
3. Sexual Assault
4. Indecent Assault
5. Aggravated Sexual Assault and
6. Stalking

A Magistrate’s Order of Emergency Protection does not have to be requested by the alleged victim. It can be ordered at the request of:

1. The judge;
2. The alleged victim;
3. The guardian of the alleged victim;
4. A peace officer; or
5. The prosecutor.

Discretionary vs. Mandatory Emergency Protective Orders in Texas

The Magistrate’s Order of Emergency Protection is discretionary except in two instances.

The Emergency Protective Order is mandatory:
1. If a person is arrested for a family violence offense and there is either serious bodily injury.
2. If a person is arrested for a family violence offense and a deadly weapon is used or exhibited.

Magistrate’s Order of Emergency Protection Powers

A Magistrate’s Order of Emergency Protection can be used to:

• Prevent further assault, family violence, trafficking, and stalking;
• communicating with a protected person in a threatening or harassing manner;
• threatening any protected person;
• going to or near the residence, place of employment, or business of a protected person or family member;
• the residence, child care facility, or school of a protected child; and
• possessing firearms.

Magistrate’s Order of Emergency Restrictions Require “Good Cause”

All of the powers above can be exercised by the judge without a hearing. However, the judge needs a finding of “good cause” before the judge can subject a person to the following: If good cause is shown, a judge can prohibit any communication with the alleged victim, regardless of whether it is threatening or harassing.

EPO Effect on Protected Person

It is important to remember that the victim is not prohibited from anything. This means that the alleged victim can contact the person who is under the EPO or invite them back to the house. If the accused person responds, this can be a violation of the EPO, and a criminal charge could be brought against them.

What if there is an Emergency Protective Order against me?

It is important to read the EPO to understand what is prohibited and for how long. For instance, does the EPO prohibit all communication or only threatening/harassing communication? Where are you prohibited from going? It is imperative to contact an attorney to understand your rights regarding the EPO. At Varghese Summersett, we have handled thousands of cases involving protective orders both as prosecutors and as defense attorneys. We understand the legal minefield that is created by a protective order and can defend you against further damage.

Unique Features of Magistrate’s Order of Emergency Protection

• A hearing is not required for a Magistrate’s Order of Emergency Protection.
• Doesn’t require a specific relationship between the person that the order applies to and the person being protected.
• Emergency Protective Orders can only be obtained after an arrest.
• The Emergency Protective order only applies to the person who was arrested.

How long does an Emergency Protective Order last in Texas?

These generally are in effect for 31 to 61 days. However, an Emergency Protective Order may be extended to 91 days if the abuser was arrested for assault with a deadly weapon.

What happens if a person violates an Emergency Protective Order?

Violating a protective order can be easier than you think and can often be unintentional. If you are accused of violating a protective order, you can be arrested and charged with an additional criminal offense.

What is the penalty for violating an Emergency Protective Order?

If you are found to have violated a term of the protective order, you could be charged with a Class A misdemeanor and face up to a year in jail and up to a $4000 fine.

You could be charged with a third-degree felony if you have previously been convicted two or more times of violating a protective order. If you have violated the protective order by committing assault or by stalking, you could also be charged with a third-degree felony. This increases the range of punishment to up to 10 years in prison and up to a $10,000 fine.

If you are found to have violated the protective order 2 or more times within a 12-month period, you could face up to 10 years in prison and up to a $10,000 fine.

Additionally, you can be denied bail if you violate a PO. If you are on bond for a family violence offense and violate a bond condition, you can be held without bond until trial. If you violate a protective order by going to or near a protected place, you can also be held without bond pursuant to Code of Criminal Procedure Sec. 17.152.

Can an EPO be lifted?

Judges are very hesitant to lift a protective order even at the request of the victim, however they might agree to modify an Emergency Protective Order. There are a number of challenges when it comes to modifying an emergency protective order.

First, the magistrate who set the EPO is unlikely to change it. So you’re generally waiting for the case to be filed into a county or district court. That may take weeks. Then if the prosecution is unwilling to agree to the modification, it is likely the judge will set the matter for a hearing.

Depending on how busy the court’s docket is, you might be at the end of your EPO before you get the hearing. So from a practical standpoint, it is very difficult to change an Emergency Protective Order, even if the alleged victim is on your side.

Protective Orders vs. Bond Conditions

It is also important to remember that a protective order is separate and distinct from bond conditions. So where a protective order only prohibits threatening or harassing contact, a condition of bond could still prohibit any and all contact with the alleged victim. If you are facing a PO or have been accused of violating a PO, give us a call today to help you navigate these treacherous waters. We have the experience and skills you need to help you find solid ground.

Temporary Ex Parte Protective Orders

Temporary ex parte protective orders can be granted to protect a family or household member when there is a clear and present danger of family violence. See Tex. Fam. Code § 83.001(a). To grant the order, the judge must find there is a clear and present danger of family violence to the applicant or a family member. Tex. Fam. Code § 83.002.

Another basis for the granting of a temporary ex parte protective order is when there is a threat of immediate danger of abuse or neglect to the child. Tex. Fam. Code § 261.503.

What can a Temporary Ex Parte Protective Order do?

A temporary ex parte protective order can be used to make the respondent do – or not do – certain things. Tex. Fam. Code § 83.001(b).

A temporary ex parte protective order can exclude a person from returning to a residence under certain circumstances. Tex. Fam. Code § 83.006.

What is the length of an ex parte protective order in Texas?

These are usually in effect for up to 20 days and may be extended for another 20 days upon request. Tex. Fam. Code § 83.002.

What is the result of a violation of a Temporary Ex Parte Protective Order in Texas?

A violation of a temporary ex parte protective order in Texas can result in contempt of court, unlike a violation of an Emergency Protective Order which is a separate criminal offense.

Permanent (Final) Protective Orders

Permanent Protective Orders, more appropriately called Final Protective Orders in most cases, generally last for up to two years, but the judge may issue an order for longer than two years if:

• The abuser caused serious bodily injury to the applicant or their family or household; or
• The same applicant has had two or more protective orders issued against the same abuser in the past and in both cases the judge found the abuser committed family violence and was likely to commit family violence in the future.

In other words, if there is no time period stated on the final protective order, it expires on the second anniversary of the date it was issued. Tex. Fam. Code § 85.025(a-1).

Motion to Discontinue a Final Protective Order

After one year, a person subject to a Final Protective Order can petition the court to have the order discontinued. For orders lasting more than two years, a person subject to a Final Protective Order can petition the court to have the order discontinued a second time, after the passing of another year. The court will have a hearing to determine whether there is a “continuing need for the order.” The judge can either continue the order or decide not to. Merely showing a lack of violations is not sufficient to have the order discontinued. There are also rules that address an automatic extension of the order if a person is in jail or prison.

1 Tex. Fam. Code § 85.025(a)
2 Tex. Fam. Code § 85.025(a-1)
3 Tex. Fam. Code § 85.025(b), (b-1), (b-2)
4 Tex. Fam. Code § 85.025(c)

Restraining Orders in Texas

A restraining order in Texas is an order from a civil court or family court that either prevents certain actions or avoids immediate and irreparable harm.

Types of Temporary Restraining Orders (TROs) in Texas

There are two types of Temporary Restraining Orders: TROs in the civil context and TROs related to family cases.

Temporary Restraining Order (Civil)

A civil TRO can be obtained when an immediate and irreparable injury, loss, or damage will occur if the ex parte relief is not granted. See Texas Rules of Civil Procedure 680, 682. It is often used to prevent individuals from not making contact with one another.

Texas Rules of Civil Procedure 68 provides that a TRO shall not exceed 14 days unless there is good cause shown or the person against who the order applies agrees to a longer period. (A civil temporary TRO can be followed by a temporary injunction and then a permanent injection.)

Generally, a civil Temporary Restraining Order cannot be granted unless notice was provided to the other party. However, a court can grant a civil TRO if immediate and irreparable injury, loss, or damage will result before notice can be served.

Temporary Restraining Order (Family)

Temporary restraining orders in family court are filed for the protection of a spouse, a child, or the preservation of property in the context of a divorce or custody case. See Family Code 6.501(a); 105.001(a). These can be granted “ex parte” meaning they can be filed without notice to the other side. Ex parte temporary restraining orders are good for 14 days unless they are extended or withdrawn.

Unlike civil TROs, a family TRO can be issued without a showing that immediate and irreparable injury, loss, or damage will result before notice can be served and a hearing can be held. See Family Code Section Secs. 6.503, 105.001.

It is critically important to understand that a temporary restraining order is not effective until the person the order restrains receives actual notice of the restraining order. When it comes to temporary restraining orders in divorce cases (Texas Family Code Sec. 6.501), the petition only needs to allege that the order is “necessary for the protection of the parties and for the preservation of their property.” This section also provides a non-exhaustive list of twenty-six different types of conduct a court can prohibit parties from engaging in. However, a court’s ability to restrict a spouse from entering an occupied residence is very restricted. See Texas Section 6.501(b).

What is a juvenile detention hearing in Texas?

When juveniles are taken into custody for allegedly violating the law in Texas, they have certain rights that kick in very quickly. One of them is the right to have a juvenile detention hearing within two business days.

The purpose of this hearing is to determine whether the child should be released or remain in the juvenile detention center while their case is pending. In this article, we explain what happens during a juvenile detention hearing and how a judge decides whether a child should be detained or released. 

But first, please watch this video by Board Certified Juvenile Attorney Lisa Herrick.

What is juvenile detention?

When juveniles in Texas are accused of committing serious crimes – legally referred to as “engaging in delinquent conduct” or “conduct indicating a need for supervision” – they are not hauled off to adult jail. Instead, the law requires that they be taken to a juvenile detention center specifically designed to house and safely secure and supervise youth ages 10 through 16.

Juvenile detention facilities are 24-hour, lock-down facilities intended for short-term confinement. Juveniles may be held until their case is adjudicated or released to a parent, guardian, or another suitable adult under certain conditions. The decision to keep or release a child is up to the judge after a juvenile detention hearing. There is no such thing as bail in the juvenile system.

In Tarrant County, juveniles are held at the Tarrant County Juvenile Detention Center, formally known as the Lynn W. Ross Juvenile Detention. In Dallas County, juveniles are held at the Dr. Jerome McNeil Jr. Detention Center.

When will a child have a juvenile detention hearing?

According to the Texas Family Code Section 54.01(a), a juvenile detention hearing must be held “promptly” – within two business days – of a child being taken into custody. If the child is detained on a Friday or Saturday, then the hearing will be held on the first business day after the child is taken into custody.

If a child is ordered detained, the law requires that they have a subsequent detention hearing within 10 days for as long as they are in custody. In other words, 10 days is the maximum time between detention hearings. The juvenile’s attorney can also request additional hearings at any time.

Who is present at a juvenile detention hearing?

The judge, juvenile, prosecutor, child’s attorney, and a probation officer will be present at a juvenile detention hearing. The juvenile’s parent or guardian should also be present. However, if the parent or guardian can’t be located or cannot attend, the court will appoint counsel or a guardian ad litem to act as the legal representative for the child and represent their interests during the juvenile detention hearing.

Will the child have a defense attorney at the initial juvenile detention hearing?

Ideally, yes. Before the initial detention hearing, the court must notify the child and his or her parents of the right to an attorney. If the family doesn’t have enough time or the financial means to hire an attorney on short notice, the court will appoint an attorney before the initial detention hearing. If the child is not represented at the initial detention hearing due to exigent circumstances and is ordered detained, the judge must immediately appoint the juvenile an attorney or order the family to hire one.

What happens at the juvenile detention hearing?

Juvenile detention hearings are informal proceedings. At the start of the juvenile detention hearing, the judge will explain to the juvenile his to her rights. After that, the judge will usually turn his or her attention to the juvenile probation officer, who will summarize the allegation, provide information about the juvenile’s home situation, and whether the juvenile has any prior juvenile history.

Next, the judge will give the juvenile, parents, prosecutor, and anyone involved in the case an opportunity to speak and argue for – or against – the child’s release. The judge may also have questions for the participants. It’s important to note that Under Texas Family Code Section 54.01(g), nothing the juvenile says during the detention hearing can be used at a subsequent hearing. However, the child’s attorney will advise them about what, if anything, they should say during the detention hearing.

The court will also consider any written reports from professionals at this time.

How does a judge decide if the juvenile should remain detained or be released?

As mentioned, the sole purpose of the juvenile detention hearing is to decide whether the child should be released to a parent or guardian or stay in juvenile detention. The legal presumption is that the child should be released. If the judge orders the child detained, they must find one or more of the following grounds:

• The juvenile is likely to abscond or be removed from the jurisdiction of the court;
• The juvenile does not anyone who can provide suitable supervision, care, or protection;
• The juvenile does not have anyone who can guarantee his or her return to court when required;
• The juvenile may be a danger to themself or a threat to public safety;
• The juvenile has previously been found to be delinquent or has previously been convicted of an offense punishable by jail or prison and is likely to commit an offense if released;
• The juvenile is alleged to have engaged in delinquent conduct and to have used, possessed or exhibited a firearm in the commission of the offense. 

How long do juvenile detention hearings take?

Juvenile detention hearings are usually very short, lasting 10 to 20 minutes. Usually, the judge has a number of juvenile detention hearings scheduled and hears them back-to-back. 

How common are juvenile detention hearings?

Juvenile hearing are very common, especially in large counties. In Tarrant County, for example, 3218 juvenile detention hearings were held in 2021, according to 2021 Tarrant County Juvenile Services Annual Report.

What happens if my child is released after a juvenile detention hearing?

If your child is fortunate enough to be released, he or she should be able return home that day. However, the judge will order conditions of release, basically rules that the youth must also follow. They can include conditions such as attend school, take drug tests, and refrain from social media, for example.

What happens if my child is not released after a juvenile detention hearing?

If a child is ordered detained, he or she will have another hearing within 10 business days. During this hearing, the judge will hear about the juvenile’s behavior and progress and reevaluate whether releasing the child is in the best interest of the child and the safety of the public. If the child is ordered detained, he or she will continue to have detention hearings every 10 days until the case is resolved – unless the juvenile attorney waives the hearings.

Is Your Child in Custody? Contact a Board Certified Juvenile Attorney Today.

If you’re looking for a juvenile defense attorney in Fort Worth or Dallas, you are at the right place. Lisa Herrick is Board Certified in Juvenile Law – one of only three attorneys in Tarrant County who holds this distinction. This means she is considered an expert in juvenile law. You will be hard-pressed to find another juvenile lawyer in North Texas with her expertise and legal acumen.

Lisa has successfully handled every type of juvenile case, ranging from theft to capital murder. She has handled countless juvenile detention hearings – first as a prosecutor and now as a highly-skilled juvenile defense lawyer. She has vast knowledge of the juvenile court system, the process, and how to best help and protect your child. Contact Lisa today for a free consultation at 817-203-2220. If you child is in custody, tiime is of the essence.

Did you know that an intoxication-related offense can make it very difficult for you to enter certain countries – even if you are not convicted? This article covers what countries you can’t go to with a DUI, a DWI, or other serious intoxication-related offense.

Driving under the influence (DUI) is another term used outside of Texas to refer to the same offense we call a DWI or Driving While Intoxicated. For this article, the term DUI and DWI is used interchangeably – although it is a different offense in Texas.

DUI is a serious offense that can have severe consequences, including jail time, fines, and the loss of a driver’s license. A DUI conviction can also result in being barred from entering certain countries.

Countries You Can’t Go to With a DUI

There are several countries that will not allow someone with a DUI on their record to enter their borders. These countries include Canada, Australia, and New Zealand.

Canada, for example, has strict entry requirements for individuals with criminal records, including those with a DUI conviction. In order to be allowed into Canada, individuals with a DUI must apply for a temporary resident permit, which can take several months to process. The permit is not guaranteed, and the applicant must demonstrate that they are not a risk to Canadian society and have a legitimate reason for entering the country.

Australia and New Zealand also have strict entry requirements for individuals with criminal records, including those with a DUI conviction. In order to be allowed into these countries, individuals with a DUI must apply for a visa and provide information about their criminal history. The visa application process can be lengthy, and the applicant must also demonstrate that they are not a risk to the community and have a legitimate reason for entering the country.

It is important to note that these entry requirements can vary depending on the individual’s specific circumstances, including the severity of their DUI offense and the length of time since the conviction. It is always best to check with the relevant embassy or consulate before entering any of these countries.

DWI vs. DUI and Getting into Canada

As noted above, we are using the term DUI and DWI interchangeably in this article because Texas is one of the few states that uses the term “DWI” to refer to operating a vehicle with a blood alcohol concentration (BAC) of 0.08% or higher. That offense is commonly referred to as a DUI in other states and even driving while ability impaired (DWAI).

In Texas, a first-time DWI offense is a Class B misdemeanor, which can result in up to 180 days in jail and a fine of up to $2,000. Subsequent offenses can result in even harsher penalties, including longer jail sentences and higher fines. Any of these, even a first time offense, can jeopardize your ability to enter Canada.

Getting into Canada with a DWI Conviction

It is important to note that a DWI conviction in Texas can also result in the loss of a driver’s license, increased insurance rates, and other consequences. As mentioned previously, it can also result in being barred from entering certain countries, depending on their entry requirements.

In conclusion, a DWI is a specific type of DUI that refers to operating a vehicle with a BAC of 0.08% or higher in the state of Texas. It is a serious offense that can result in jail time, fines, and the loss of a driver’s license, as well as potential difficulties when traveling to other countries.

Why should someone hire a DWI attorney if they want to go to Canada?

A DWI attorney can help an individual avoid a plea on a DWI. They can also work closely with an immigration attorney who can help navigate the application process for a temporary resident permit and increase their chances of being granted entry into Canada.

In addition, a DWI attorney can help an individual understand the potential consequences of their DWI conviction and how it may affect their ability to travel to Canada.