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Overview of Insurance Fraud in Texas

Insurance fraud is a white-collar crime that occurs when an individual or entity intentionally provides false or misleading information to an insurance company for financial gain. In Texas, insurance fraud can be charged under the Texas Penal Code Section 35.02, which makes it illegal to knowingly or intentionally engage in fraudulent activities related to insurance claims or policies.

If you have been accused of insurance fraud in Texas, contact Varghese Summersett as soon as possible. Our team of criminal defense attorneys includes Board Certified specialists and former prosecutors with more than four decades of combined experience fighting insurance fraud claims.

Types of Insurance Fraud

There are various forms of insurance fraud that can be committed in Texas. Some common examples include:

False Claims

Submitting false or exaggerated claims to an insurance company to receive undeserved benefits. This can occur in various types of insurance, such as auto, health, life, or property insurance.

Application Fraud

Providing false information on an insurance application to obtain coverage or lower premiums. This can involve misrepresenting facts about one’s personal history, health conditions, or property conditions.

Fraudulent Policies

Selling or issuing counterfeit or unauthorized insurance policies or knowingly assisting others in obtaining such policies.

Agent and Broker Fraud

Insurance agents or brokers engaging in deceptive practices, such as embezzling premiums, forging signatures, or steering clients towards unnecessary or overpriced coverage.

Elements of Insurance Fraud

To be charged with insurance fraud under Section 35.02, an individual must knowingly or intentionally:

  • Prepare, present, or cause to be presented a statement in support of a claim for payment or other benefits under an insurance policy that the individual knows contains false or misleading material information.
  • Solicit, offer, pay, or accept any benefit in connection with a claim for payment or other benefits under an insurance policy, knowing the claim contains false or misleading material information.
  • Conceal, remove, or dispose of property with the intent to defraud or deceive an insurer.
  • Prepare or cause to be prepared a statement for use in an application for an insurance policy that the individual knows contains false or misleading material information.

Penalties for Insurance Fraud in Texas

The penalties for insurance fraud in Texas are determined based on the value of the claim or benefits obtained or sought through the fraudulent act:

  • Less than $2,500: Class A misdemeanor, punishable by up to 1 year in jail and a fine of up to $4,000.
  • $2,500 to $30,000: Third-degree felony, punishable by 2 to 10 years in prison and a fine of up to $10,000.
  • $30,000 to $150,000: Second-degree felony, punishable by 2 to 20 years in prison and a fine of up to $10,000.
  • $150,000 or more: First-degree felony, punishable by 5 to 99 years in prison and a fine of up to $10,000.

understanding insurance fraud in texas

Defending Against Insurance Fraud Allegations

A skilled defense attorney can evaluate your case and develop a tailored strategy to contest insurance fraud charges. Some potential defenses include:

Lack of Intent

Demonstrating that you did not knowingly or intentionally provide false or misleading information to the insurance company. This may involve proving that any inaccuracies were the result of a mistake or misunderstanding.

Insufficient Evidence

Challenging the evidence presented by the prosecution, such as by questioning the validity of documents or the credibility of witnesses, to establish that there is not enough evidence to prove guilt beyond a reasonable doubt.

Entrapment

Arguing that law enforcement induced you to commit insurance fraud when you would not have otherwise done so through coercion, persuasion, or other means.

Good Faith

Asserting that you had a reasonable, good-faith belief that the information you provided was accurate, even if it later turned out to be incorrect.

Recent Texas insurance fraud cases in the news

  • In February 2023, former NFL receiver Corey Bradford pleaded guilty to submitting fraudulent health reimbursement claims after an investigation by the Texas Department of Insurance Fraud Unit. Bradford submitted claims for more than $224,000 to the NFL Player Health Reimbursement Plan for medical treatments he never received. He received 10 years deferred adjudication, 60 hours of community service, and was ordered to pay restitution.
  • In February 2023, the Louisiana Department of Insurance ordered a Houston-based law firm to cease and desist after finding it engaged in insurance fraud and unfair trade practices through an illegal scheme involving Alabama-based Apex Roofing and Restoration.
  • In January 2023, San Elizario mayor Isela Reyes was arrested for insurance fraud. She is accused of filing a fraudulent insurance claim with a value between $2,500 and $30,000 in March 2022.

Do you or a loved one need an insurance fraud lawyer? Call us.

If you are facing an insurance fraud accusation, don’t hesitate to protect your rights and reputation. The defense firm at Varghese Summersett can help.

For a complimentary consultation, call us today at 817-203-2220 or contact us online.

Varghese Summersett

Blood Alcohol Concentration Calculators and a Word of Caution

In this article, we are providing you with a Blood Alcohol Concentration Calculator. As we will explain, BAC calculators should be used cautiously because even under the best of circumstances, they only provide estimates for your BAC. Do not rely on this to decide whether it is “safe to drive.” It is far safer for everyone involved — and far less expensive — to never have to hire a DWI lawyer or be put in the crosshairs of a DWI investigation.
 

Blood Alcohol Concentration Calculator

(Based on the Widmark Formula)

Standard size of beer is 12 ounces.
A standard glass of wine is 5 ounces.
A standard size drink is 1.5 ounces of liquor.

What is Blood Alcohol Concentration

Blood alcohol concentration (BAC) is the percentage of alcohol in a person’s bloodstream. It is a key factor in determining intoxication levels and plays a significant role in DUI and DWI cases. The legal BAC limit in Texas is 0.08% for individuals 21 years and older. The limit is 0.04% for commercial drivers and 0.02% for anyone under 21 years.

What is a Blood Alcohol Concentration Calculator?

A blood alcohol concentration calculator is a tool that estimates an individual’s BAC based on specific variables, such as alcohol consumption, body weight, and time since the first drink. One popular method for calculating BAC is the Widmark Formula.

The Widmark Formula: An Overview

The Widmark Formula, developed by Swedish scientist Erik Widmark, is a widely-accepted method for estimating BAC. The formula takes into account the amount of alcohol consumed, the individual’s weight, and the alcohol’s distribution in the body.

Widmark’s pioneering micro-analysis of alcohol in the 1920s originated the study of blood alcohol concentration.

He noticed that BAC results were always higher than expected from a simple dilution calculation. Widmark discovered this was due to the proportion of water in the body as a whole being less than the proportion of water in blood. Bones and fat contain little water and absorb only low amounts of alcohol. That raises the concentration in the blood.

Widmark Formula and Its Assumptions

The Widmark Formula is a widely-used mathematical equation to estimate an individual’s BAC based on alcohol consumption. The formula is as follows:

BAC = (A × 5.14 / W × r) – 0.015 × H

Where:

A = total alcohol consumed (in ounces)
W = body weight (in pounds)
r = alcohol distribution ratio (0.68 for men and 0.55 for women)
H = time since the first drink (in hours)

However, the Widmark Formula relies on several assumptions, some of which are:

A uniform alcohol distribution ratio for all men and women: The formula uses an average alcohol distribution ratio for men and women. This does not account for individual variations in factors such as body composition and genetics.

Constant absorption and elimination rates: The formula assumes that alcohol absorption and elimination rates remain constant throughout the drinking period. In reality, these rates can vary depending on factors like the presence of food in the stomach and individual metabolic differences.

Variables in the Widmark Formula

The Widmark Formula considers the following variables:

  • Alcohol consumed (in grams)
  • Body weight (in kilograms)
  • Alcohol distribution ratio (known as Widmark’s rho)

The formula is as follows:

BAC = (Alcohol Consumed / (Body Weight * Widmark’s Rho))

Factors Affecting BAC: Drink Size, ABV, and Timing

Several factors can influence an individual’s BAC:

Size of drink: The volume of a drink affects the total amount of alcohol consumed.
Alcohol by volume (ABV): The concentration of alcohol in a beverage impacts the amount of alcohol ingested.
Time of first drink: The time since the first drink affects the body’s ability to metabolize alcohol.
Time of last drink: The time since the last drink can influence the peak BAC.

Gender Differences in BAC Calculation

Gender plays a role in BAC calculations because men and women have different alcohol distribution ratios. Women typically have a higher body fat percentage and lower water content, which leads to a higher BAC compared to men consuming the same amount of alcohol.

Assumptions in the Widmark Formula

The Widmark Formula makes several assumptions:

  • A constant alcohol distribution ratio
  • A linear relationship between alcohol intake and BAC
  • No variation in alcohol absorption and elimination rates
  • These assumptions may not hold true for all individuals, leading to potential inaccuracies in BAC estimation.

Absorption and Elimination Rates

The absorption rate refers to the speed at which alcohol enters the bloodstream after consumption. This rate can be influenced by factors such as the type of alcoholic beverage, the presence of food in the stomach, and individual metabolic differences.

The elimination rate is the speed at which the body breaks down and removes alcohol from the bloodstream. This process primarily occurs in the liver, where enzymes metabolize alcohol into non-toxic substances.

Variability in Absorption and Elimination Rates

Absorption and elimination rates are not the same for everyone, as they can be affected by various factors:

Gender: Women tend to have higher absorption rates due to differences in body composition and hormonal levels. Additionally, women generally have lower elimination rates compared to men.

Age: Older individuals may have a slower elimination rate due to reduced liver function and changes in body composition.

Genetics: Genetic factors can influence the efficiency of enzymes responsible for alcohol metabolism, leading to variations in both absorption and elimination rates.

Food intake: Consuming food before or during alcohol consumption can slow down the absorption rate, as food competes with alcohol for absorption in the stomach and small intestine.

Medications and health conditions: Some medications and health conditions can affect the liver’s ability to metabolize alcohol, altering the elimination rate.

Are you facing a DWI charge in North Texas? Call us.

The criminal defense team at Varghese Summersett has unparalleled experience fighting DWI-related cases in North Texas, including Tarrant, Dallas, and surrounding counties. Our roster of attorneys includes Board Certified specialists and former prosecutors with decades of trial experience. We will examine the state’s case and challenge any suspect evidence, including the results of blood alcohol concentration tests.
For a complimentary consultation where we’ll review your case and discuss your options, call us at 817-203-2220 or online.

Varghese Summersett

In Texas, a Sheriff is empowered to provide “good conduct credit” pursuant to Code of Criminal Procedure Article 42.032. 

Often this is 2-for-1 credit, although occasionally it is 3-for-1 credit. City time is calculated day-for-day. The calculator below will help you calculate time credits for informational purposes. Understand that time calculations are ultimately up to the Sheriff, but this tool can be used to give you a general idea of what to expect.

Time in County






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What does DWI Probation in Texas involve?

In Texas, if you are charged with driving while intoxicated (DWI), you are likely to face probation as part of your sentence if convicted.

Texas DWI probation is a legal status that allows you to avoid serving jail or prison time. Instead, it requires regular reporting to a probation officer with strict conditions that must be followed.
This post will provide a comprehensive guide to DWI probation in Texas, including its definition, eligibility, requirements, and consequences for probation violations.

What is DWI probation in Texas?

DWI probation is a type of community supervision that allows individuals who have been convicted of DWI to serve their sentence outside of jail or prison. It is also known as “community supervision” or “deferred adjudication,” although deferred adjudication is rarely available for DWI offenses in Texas.

When a judge grants DWI probation, the offender is ordered to comply with certain conditions for a set period of time, typically between one to two years for a misdemeanor offense. If the offender violates any of these conditions, the judge may revoke their probation and order them to serve the original sentence, which typically includes jail time.

dwi probation in texas

Who is eligible for DWI Probation in Texas?

The eligibility criteria for DWI probation in Texas depend on the severity of the offense, the offender’s criminal history, and other factors.
Not everyone charged with DWI in Texas is eligible for probation.

Probation for a DWI in Texas is generally available to anyone who has not had a previous felony conviction. An experienced criminal defense attorney may be able to convince prosecutors to give you probation even with a felony conviction on your record.

What DWI cases are eligible for deferred adjudication in Texas?

You cannot receive deferred adjudication for a DWI if: 

  • You have a prior DWI
  • You have a commercial driver license (CDL)
  • To be eligible to receive deferred adjudication, you cannot have any prior DWIs on your record. You cannot have a commercial license and you cannot have a blood alcohol concentration of a .15 or more. You cannot be involved in an accident that caused damage to anything other than your own vehicle.

What are the Requirements of DWI Probation in Texas?

If you are granted DWI probation in Texas, you will be required to follow certain conditions, which often include completing the following:

  • DWI education course
  • Substance abuse evaluation
  • MADD Victim Impact Panel

You should also expect the court to order:

  • Submitting to regular drug and alcohol tests
  • Installing an ignition interlock device (IID) on your vehicle for repeated offenses or a blood alcohol concentration of 0.15% or greater at the time of the test
  • Monthly reporting to a probation officer
  • Avoiding any further criminal activity
  • Not allowing driving without a license
  • Not denying any breath blood or field sobriety tests if stopped for suspicion of DWI
  • Pay fines and court costs
  • Completing community service

The specific requirements of DWI probation in Texas can vary depending on the judge and the offender’s circumstances. It is essential to work closely with an experienced criminal defense attorney to ensure that you fully understand the conditions of your probation and comply with them.

How many days as a condition of probation are required in jail for intoxication offenses in Texas?

Intoxication Offense Days as Condition of Probation Required in Jail  Statute
1st DWI – Penal Code 49.04 (b) Class B 0 to 30 days CCP Art. 42A.302(a)(1)
1st DWI with Open Container – Penal Code 49.04 (c) Class B 0 to 30 days CCP Art. 42A.302(a)(1)
1st DWI with BAC 15 or Greater – Penal Code 49.04 (d) Class A 0 to 30 days CCP Art. 42A.302(a)(1)
2nd DWI – Penal Code 49.09 (a) Class A 72 hours to 30 Days; unless with prior offense w/in 5 years 5 to 30 days CCP Art 42A.401 (1)(2)
DWI Felony Repetition Penal Code 49.09 (b)(2) Third Degree 10-180 days Art. 42A.401(3) 
DWI Child Passenger – Penal Code 49.045 State jail felony 0-180 days  
Intoxication Assault Penal Code 49.07 Third-degree felony 30-180 days Art. 42A.401(a)(4)
Intoxication Manslaughter Penal Code 49.08 Second-degree felony 120-180 days  Art. 42A.401(a)(5)

What are the Consequences of Violating DWI Probation in Texas?

Violating any of the conditions of your DWI probation in Texas could result in the judge revoking your probation. Depending on the level of your DWI offense, probation revocation could include jail or prison time, additional fines, and other penalties.

Furthermore, violating probation could lead to a permanent criminal record, which could impact future employment, housing options, and other detrimental consequences to your life.

DWI Probation in Texas FAQs

Can I drive while on DWI probation in Texas?

Driving while on DWI probation in Texas depends on the specific conditions of your probation.
If the judge orders you to install an ignition interlock device (IID) on your vehicle, you may be allowed to drive as long as you pass the breathalyzer test.

However, if you are not ordered to install an IID, you may face a driver’s license suspension. You will be required to have a valid license or occupational license.

Can I leave Texas while on DWI probation?

Again, it depends on the specific conditions of your probation. Courts often require you to stay in the county you are reporting to and any contiguous county.

You must report any travel plans to your probation officer and receive their permission to remain in compliance with your probation conditions.
If your probation officer approves, you may be able to leave Texas temporarily, provided it complies with your conditions.

Can I drink alcohol while on DWI probation in Texas?

No drinking is typically a condition of DWI probation in Texas. If ordered by the court to abstain from alcohol, you must comply. Violating this condition can result in probation revocation.

How much does DWI Probation in Texas cost?

DWI probation costs in Texas vary from case to case and depend on multiple factors.
Those factors include the length of the probation, the specific probation conditions, and the offender’s specific circumstances.

Common costs associated with DWI probation in Texas include the following:

Probation fees: Monthly probation fees are usually required and generally range between $60 and $100 a month, which covers the cost of probation supervision. The fees vary depending on the county and length of probation.

Alcohol education program fees: DWI probation usually requires attending an alcohol education program, which ranges in cost between $100-$300.

Ignition interlock device (IID) installation and maintenance fees: If you’re ordered to install an IID as part of your probation, you will be responsible for paying for installation and maintenance. Installation fees typically range from $75 to $150, and monthly maintenance fees can range from $60 to $100.

Court costs and fines: DWI offenders are generally required to pay court costs and fines as part of the sentence. These costs vary depending on the offense level and other factors but usually amount to several hundred dollars in most cases.

Maximum fines for DWI convictions in Texas:
Class B: $2,000
Class A: $4,000
Felony: $10,000

What are the penalties for a DWI conviction in Texas?

First offense (if Class B)

  • Maximum $2,000 fine
  • Three to 180 days in jail

First offense (if Class A)

  • Maximum $4,000 fine
  • Up to one year in jail

Second offense

  • Maximum $4,000 fine
  • One month to a year in jail

Third offense

  • Maximum 10,000 fine
  • Two to 10 years in state prison

What is an ignition interlock device, and what is it used for?

An ignition interlock device (IID) is installed in a vehicle to prevent it from starting if the driver has consumed alcohol. IIDs are commonly used as a condition of probation for DWI offenders in Texas and other states.

To start their car, the driver must blow into the device, which measures the driver’s blood alcohol concentration (BAC). If the device detects any alcohol, typically above 0.02% BAC, the car won’t start.
While driving, the driver also might be required to provide random additional breath samples to ensure they are not consuming alcohol.

Each time a driver blows in the device, the event is recorded and reported, and available to the probation officer.

Can you get early release from DWI Probation in texas?

No. However, the judge with jurisdiction over your case has the authority to modify the conditions of probation. You may also be able to convince a judge to give you pro forma status.

What is pro forma status in Texas?

This means non-reporting status. In basic terms, it means the judge is allowing a defendant to serve the remainder of their sentence without reporting to a probation officer.

Facing DWI charges in Texas? Call Varghese Summersett.

The criminal defense team at Varghese Summersett includes former prosecutors and Board Certified specialists with a combined four decades of experience fighting for its clients.

If your or a loved one is facing a DWI offense, contact us for a complimentary consultation where we’ll review your case, go over your options, and discuss a defense strategy. Call us today at 817-203-2220.

Varghese Summersett

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.

always in your corner criminal defense

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.

Federal sentencing memorandum

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.

Varghese Summersett

Can police search my phone during a Texas traffic stop?

Technology continues to change our world at lightning speed. The emergence of smartphones, for example, has put the power of a computer in nearly every adult’s hands across the globe.

While technology has often led to alterations and updates to our laws, one important tenant remains unchanged: the Fourth Amendment.

Unreasonable search and seizure provided in the Bill of Rights prevent law enforcement from searching cell phones during a traffic stop without a judge-issued warrant. There are rare circumstances in which officials can search someone’s phone without a warrant, which we’ll detail later in this post.

Are you facing criminal charges in North Texas? Do you believe police illegally searched your phone during a traffic stop?

You need to protect your rights. The criminal defense team at Varghese Summersett has more than 150 years of combined experience protecting the rights of its clients in North Texas.

What are my rights if the police ask to search my phone?

The U.S. Supreme Court held in Riley v. California in 2014 that a person’s cell phone can’t be searched by law enforcement without a valid warrant.

The court argued that citizens have a reasonable expectation of privacy with their cell phones and the personal information typically stored on such devices.

An officer can ask to look at your phone, but you can deny the request. If an officer views any contents on your phone without consent or a valid search warrant, the potential evidence gathered from the phone is inadmissible in court.

What should you do during a Texas traffic stop?

If the police pull you over in Texas, remember to remain calm. Give the officer your driver’s license and proof of registration, and keep your hands visible, perhaps on the steering wheel. It’s important to be courteous, regardless of the officer’s demeanor.

Can police search my phone? No, you can refuse if an officer asks to search your phone. If you consent to a search, the police can use any found evidence against you.

This is why it’s important to exercise your right to privacy. If you don’t consent to the search, the officer has no option but to stop. If the officer believes the search is necessary, they’ll obtain a warrant. Judges don’t typically grant warrants unless there is a substantial reason for the request.

dont give consent to search

When can police search my phone during a traffic stop in Texas?

There are a few rare circumstances in which an officer can conduct a warrantless search of your cell phone without consent. According to the Texas Code of Criminal Procedure, if exigent circumstances exist at the moment, an officer is allowed to search a cell phone.

Exigent circumstances occur when an officer reasonably believes that entry or other relevant prompt action is necessary to prevent physical harm to officers or others, the destruction of evidence, or the escape of a suspected felon.

can police search my phone

What does “exigent circumstances” mean in Texas?

There are no Texas or federal laws that specifically define what exigent circumstances are or what is meant by the “emergency doctrine,” to which it is commonly referred.

This gray area can lead to a temptation by law enforcement to quickly decide there is an emergency situation at hand if they want to enter a home or search your phone without a warrant. The desire to label a situation as exigent circumstances can be enticing for law enforcement.

What are examples of exigent circumstances in Texas?

Exigent circumstances are unlikely to be relevant during a traffic stop. They typically apply in cases in which officers need to make a warrantless entry.

Exigent circumstances, however, could be relevant during a traffic stop if the driver flees the scene, abandons the vehicle, and runs into a house or building.

Exigent circumstances typically involve the following:

  • Protection from imminent danger or death
  • Protection of property (such as extinguishing a fire or stopping a burglary)
  • Preventing the destruction of evidence
  • Pursuing a fleeing felon

Can police search my phone if I flee during a traffic stop? Not necessarily. An officer must still show they had probable cause to believe the phone contained criminal evidence to search without a warrant.

Can police search my phone after I’ve been arrested?

No. Police officers must have a search warrant to search someone’s phone even after the person has been arrested. The Texas constitution Article I Section 9 confirms a person’s right from unreasonable searches or seizures. You have the right to refuse a search before, during, and after an arrest.

Can police use the information on my phone’s lock screen as evidence?

No. In a case decided in 2020, it was found that law enforcement officers cannot use information gleaned from the lock screen of a cell phone. Any information, such as incoming calls, text messages, or any other incriminating data viewed on the screen of a phone, cannot be used to prove guilt or as evidence in a criminal case.

A judge-issued search warrant is required to use such evidence to prosecute a crime.

Can police search my phone data through a third party?

No. The data stored on your cell phone is protected under the 1986 Stored Communications Act. Internet service providers (commonly known as ISPs) must protect the electronic privacy and stored data of their customers.

This law requires law enforcement agencies to have a valid search warrant before gathering cell phone data and other information found in third-party ISPs.

How could an unlawful search affect my Texas criminal case?

An unlawful search of your phone is treated like any other illegal search of your car or home. Unlawfully obtained evidence is likely to be excluded from being used as evidence in court. In some cases, such circumstances could lead to a case being dismissed, charges dropped, or the prosecution offering a better plea bargain.

An effective defense attorney will properly review the options with you.

Do you believe your cell phone was searched illegally? Call us.

If you’re facing criminal charges and law enforcement searches your cell phone without a valid warrant or your consent, contact Varghese Summersett. Our criminal defense team is adept at dealing with the complexities of such cases and vigorously fights to suppress inadmissible evidence when defending clients.

Any evidence gathered during an unlawful search can’t be used against you. Our defense attorneys will review your case to determine if your rights were violated.

For a free consultation, call us at 817-203-2220.

Varghese Summersett

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

prosecutors love searching social media

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.

social media be used as evidence

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.

Varghese Summersett

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

protective orders 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.

Class A misdemeanor

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

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).

Varghese Summersett

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

protective orders 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.

Class A misdemeanor

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

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).

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What is super aggravated sexual assault of a child in Texas?

Super aggravated sexual assault of a child is one of the most serious criminal offenses in Texas – and the state tries to punish it as such.

The term “super” refers to the enhanced punishment that comes with a conviction. Super aggravated sexual assault of a child occurs when the victim is either under age six or if the offender has previously been convicted of a violent sexual assault of a victim under age 14. The “super” charge can also apply to cases of continuous child sexual abuse or if the offender has previous convictions for child abuse or aggravated sexual assault of a child. 

The enhanced penalty includes a minimum of 25 years in prison, lifetime sex offender registration, and no chance for parole. The aim is to protect younger children and to discourage first-time offenders from repeating the crime.

If you are facing super aggravated sexual assault charges in North Texas, your life and livelihood is on the line. You need an experienced criminal defense attorney who has experience fighting serious sex charges. The criminal defense team at Varghese Summersett has decades of combined experience handling cases of this magnitude.

In this post, we’ll explain what differentiates super aggravated sexual assault of a child, what prosecutors must prove, and the punishment range if convicted.

Why did Texas add enhanced punishment for aggravated sexual assault of a child?

In 2007, Texas lawmakers passed House Bill 8, which is known as the Jessica Lunsford Act, in tribute to a 9-year-old Florida girl who was kidnapped, raped, and murdered by a convicted sex offender.

Jessica Lunsford Act

The enhanced “super” charge was codified in Texas’ existing aggravated sexual assault statute to create a new punishment scheme under §22.021(f) in cases where the victim is under the age of six at the time of the offense or if the victim was younger than 14 and there was an additional aggravating factor as described in §22.021(a)(2)(A).

The aggravating factors include:

  • Causes serious bodily injury or attempts to cause the death of the victim; 
  • By words or acts, or words or acts in the presence of the child, places the victim in fear that any person will become the victim of sex trafficking or that death, serious bodily injury, or kidnapping will be imminently inflicted on any person;
  • Uses or exhibits a deadly weapon;
  • Acts in concert with another;
  • Or, with intent to facilitate the offense, administers any substance capable of impairing the victim’s ability to appraise the nature of the act or resist the act.

The change made the range of punishment the same as continuous sexual abuse of a child: 25 years to life with no parole and no deferred adjudication. Without the “super” enhancement, the range of prison time is 5 to 99 years.

What does super aggravated assault of a child mean in Texas?

Sexual assault of a child in Texas occurs anytime an adult engages in sexual activity with anyone under the age of consent (under 17 in Texas). The charge can be elevated to super aggravated sexual assault of a child if the child is younger than six at the time of the offense or under the age of 14 at the time of the offense and another aggravating factor was involved. For example, if a deadly weapon or date rape drug was used.

There is no probation, deferred adjudication, or parole for a super aggravated sexual assault conviction.

Specifically, the Texas Penal Code says aggravated sexual assault occurs when a person intentionally or knowingly “causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;

(ii)  causes the penetration of the mouth of another person by the sexual organ of the actor without that person’s consent; or

(iii)  causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor,

or regardless of whether the person knows the age of the child at the time of the offense, the crime occurs if the person intentionally or knowingly:

(i)  causes the penetration of the anus or sexual organ of a child by any means;

(ii)  causes the penetration of the mouth of a child by the sexual organ of the actor;

(iii)  causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;

(iv)  causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or

(v)  causes the mouth of a child to contact the anus or sexual organ of another person, including the actor

What is the punishment for super aggravated sexual assault of a child in Texas?

 The state considers super-aggravated sexual assault one of the most serious crimes and seeks to punish it as such. It is punishable by 25 years to life in prison with no possibility for parole sentence and lifetime sex offender registration. 

Here are the punishment ranges in Texas for three closely-related sexual assault of a child offenses:

Crime Classification Punishment
Super aggravated sexual assault of a child 1st-degree aggravated felony Minimum of 25 years to life in prison, maximum fine of $10,000, lifetime sex offender registration, no parole
Aggravated sexual assault of a child or adult 1st-degree felony 5 to 99 years in prison, maximum fine of $10,000, lifetime sex offender registration
Sexual assault of a child or adult 2nd-degree felony 2 to 20 years in prison, maximum fine of $10,000, lifetime sex offender registration

What does the prosecution have to prove in a super aggravated sexual assault of a child case? 

Prosecutors must prove the victim was under six years of age at the time of the alleged offense or that the defendant caused serious bodily injury or attempted to cause death; placed the complainant in fear that death, serious bodily injury or kidnapping would be inflicted on any person; threatened in complainant’s presence to cause death, serious bodily injury, or kidnapping of any person; used or exhibited a deadly weapon; acted in concert with another person, who also sexually assaulted the complainant; or, used a “date rape” in the commencement of the crime.

In cases involving older children, prosecutors must prove the complainant was under 14 years of age at the time of the alleged offense.

Does Texas have a statute of limitations for super aggravated sexual assault of a child?

No, there are no statutes of limitations for aggravated sexual assault accusations under Texas Penal Code Sec. 22.021(a)(1)(B).

Recent Texas cases of super aggravated sexual assault of a child

  • In Sept. 2021, a 40-year-old Katy man was sentenced to 50 years in prison after originally being charged with multiple sex abuse crimes, including super aggravated sexual assault of a child.
  • In June 2022, a 27-year-old man was arrested in College Station and charged with two counts of sexual assault of a child and one count of super aggravated sexual assault of a child.
  • In Sept. 2022, a 36-year-old Travis County man was convicted of two counts of super aggravated sexual assault of a child.
  • In Nov. 2022, an 18-year-old San Antonio man was charged with super aggravated sexual assault of a child after Canadian border agents found obscene images of his two-year-old relative on his phone.

Facing super aggravated assault of a child in Texas? Call Varghese Summersett.

A conviction for super-aggravated sexual assault could mean life in prison without the possibility for parole. Even a lesser penalty could put you behind bars for decades and forever alter your life and your family. If you believe such accusations are coming your way, contact an experienced sex crimes attorney immediately. Don’t wait for the police to come knocking on your door.

Varghese Summersett handles high-stakes, high-profile cases professionally and with discretion. We’ve negotiated hundreds of sex offenses and always seek the best possible results with diligent preparation, thorough analysis of the state’s case, and careful negotiations. If necessary, we’re confident taking these cases to trial. Our reputation has been hard-earned, and the results speak for themselves. Call us for a free consultation at 817-203-2220.