The call for help came from an email at 8:35 a.m. Tuesday.

Melody McDonald Lanier, the media relations director at Varghese Summersett, had an urgent request for the law firm’s attorneys and staff. The subject line: Operation PlayStation 5.

“Hoping some of ya’ll can help me today. I’m trying to get Kane a PlayStation 5 today for Christmas. They launched overnight (online only) and are already sold out everywhere. HOWEVER, Walmart is selling them today online at specific times. Soooooo, if you are at your computer at 11 a.m. today, if you can hit the link and see if you can get in, I would greatly appreciate it. Thanks anyone who can help. I figure there is power in numbers.”

The entire staff – including Managing Partner Benson Varghese and his wife, Anna Summersett – were all in.

At 11 a.m. Texas time, Walmart’s first online PS5 launch of the day, everyone was at their computers or on their phones clicking and refreshing the Walmart PS5 link.

It was pretty much over before it started.

Operation PS5 Round 1

Operation PS5 Round 2

At 11:03, Walmart announced on their website that the PS5 was out of stock, but that they were restocking their shelves. The retail giant said the “item would be back at 3:00 PM ET” (2 p.m. Texas time).

Although Round 1 wasn’t successful, the team tried to learn from it. To make sure they were quicker on the draw, those who didn’t have one already created a Walmart account and entered payment and shipping information.

When Round 2 started at 2 p.m., the team felt confident.

Two minutes later, that confidence turned to disappointment.

Operation PS5 Round 3

By this time, the team was starting to grow disillusioned. They wondered if Bots were buying up all the consoles, leaving 12-year-old boys like Kane out of luck for Christmas.

Still, the team pressed on. Round 3 was at 5 p.m.

Unfortunately, the results were the same:

Spinning.

In Cart.

Error Occurred.

Out of Stock…

It was the same song, different verse.

On the drive home from work, Melody was disappointed that she hadn’t been able to land a PS5 for Kane, but filled with gratitude that she worked for a firm that puts family first and cares  – whether it’s working together on a big criminal case or helping a co-worker’s kid get a PS5.

Melody sent a quick text thanking the team for their efforts – not expecting them to try again from home on the final round at 8 p.m.

Operation PS5 Final Round

When 8 p.m. rolled around, it was clear the team hadn’t thrown in their towels. Text messages started flying around again as they made a last ditch effort to snag the elusive PS5. One by one, they got shut out. First Bresha, then Benson, then Melody… It was clear that Operation PlayStation 5 was about to be dead.

And then, a Christmas miracle happened.

Attorney Letty Martinez, a pianist with lightening-fast fingers, had gotten in and all the way through. She had an order number and a delivery date to prove it

Operation PS5 Success!

So how did she do it? Letty – a mother of teenage twins – said she is a regular user of the Walmart app on her phone. Walmart Pay was already set up and her shipping information was already intact. She also did a little research to see if there was a way to give herself an advantage.

“Being a huge nerd, I read that having something else in your shopping cart with your credit card info ready, could help,” Letty said.

So Letty put printer ink for $57.48 in her cart and, after a couple of tries, was able to throw a PS5 in there, as well.

The next thing she knew, she was hitting the “Continue” and “Confirm Payment” buttons.

And then, she got that coveted confirmation number.

“Given the crazy demand, I won’t believe it until I see it,” Martinez said, laughing. “I’m a big skeptic…But as bonus, my printer ink will be here soon!”

Melody said she couldn’t believe it either when Letty texted the group that her order actually went through.

“I had resigned myself that it probably wasn’t going to happen,” Melody said. “I was touched by the efforts of my work family. They hung in there even though it was a long shot, long after our work day was done. That is much bigger than a PS5.

“But, I’m not going to lie —  my son is going to be stoked!”

The post How a Fort Worth Law Firm Scored an Elusive PS5 from Walmart appeared first on Varghese Summersett PLLC.

Administrative License Revocation (ALR) Hearing

When you are stopped for suspicion of a DWI, your initial thoughts go to the criminal case, but license consequences can be devastating. An ALR hearing (or the Administrative License Revocation Hearing) is the process by which a license can be saved from suspension after an arrest for driving while intoxicated.

In Texas, when a driver is stopped on suspicion of DWI and refuses to take or fails a blood or breath test, their license will subsequently be suspended by the Texas Department of Public Safety (DPS). The individual will receive a “Notice of Suspension” –  also known as a DIC 25 – which will act as a temporary driving permit while the driver decides whether or not to challenge the license suspension through an ALR hearing.

An ALR hearing is held in the presence of an Administrative Law Judge (ALJ) who listens to the evidence in the case. DPS has the burden of proof in an ALR hearing. The driver can attack the DPS case by presenting any legal issues that may exist. Unlike the criminal case, which must be proven beyond a reasonable doubt, the burden of proof in an ALR hearing is only preponderance of evidence.

After the hearing, the ALJ will issue a final decision and order. If the judge finds that DPS has proven its case, the judge will authorize the suspension of the individual’s driver’s license. On the other hand, if the judge finds that DPS has not proven its case, the individual’s driver’s license will not be suspended.

What does DPS have to prove at an ALR hearing in Texas?

At an ALR hearing, the state will be required to show there was reasonable suspicion for a stop, probable cause for your arrest, and that you were given an opportunity to consent to a breath or blood test. In a case where you consented to give breath or blood, they have to prove the result was over .08.

How to Win an ALR Hearing

TIP:

Hire a criminal defense attorney on your DWI case and ask them to handle the ALR hearing for you. They will know the ins-and-outs of the ALR process and can take the best swing at winning the ALR hearing. If you end up representing yourself, follow these steps to defend your license at an ALR hearing in Texas:

Step 1: Request the Hearing:

A request for a hearing must be received by the Texas Department of Public Safety (DPS) in Austin, Texas, no later than 15 days after you receive notice your license has been suspended or denied. The request for this hearing may be sent by written demand, fax, or any other way determined by Texas DPS.

The driver has 15 days from the date of the suspension notice to request a hearing. If a hearing is not requested within 15 days, the suspension goes into effect on the 40th day after the notice was served.

If a hearing is requested within 15 days, DPS will send a letter notifying the driver of the date, time, and location of the hearing. It can take up to 120 days for DPS to schedule a hearing. The temporary permit is valid up until an ALR hearing has been held and the judge has ruled.

Step 2: Decide if the Hearing Should be In-Person or Telephonic

You will have an option of requesting an in-person (virtual during the pandemic) or telephonic hearing. The hearing will be conducted through the State Office of Administrative Hearings (SOAH).

If you have an in-person hearing, you can subpoena the officer who arrested you. If the officer does not show, you’ll generally win outright.

If you have a telephonic hearing, DPS can get into evidence without a live witness. In that case, you need to find another attack on the evidence.

Step 3: Argue Lack of Reasonable Suspicion for the Stop

An officer needs reasonable suspicion to stop your vehicle. If you can show a lack of reasonable suspicion, you can win the hearing. Reasonable suspicion can’t be just a hunch. There has to be something that gave the officer reason to believe you were committing an offense. Things that go to reasonable suspicion:

• Was your driving behavior consistent with signs of intoxication or something else?
• Were there 911 callers?
• Was the alleged traffic violation captured on video?
• Officers will claim the time of day and location is consistent with when they encounter intoxicated drivers. Are there alternative reasons?
• The odor of alcohol cannot tell an officer how much you had to drink. (Heavy, moderate, light odors are not consistent with heavy drinking, moderate drinking, or light drinking.)

Step 4: Argue Lack of Probable Cause

An officer is required to have probable cause to arrest you. This means specific articulable facts that show you committed an offense. This could be based on admissions, appearance, odors, field sobriety tests, etc. However, if there are other reasons that might explain your appearance other than intoxication, it is unlikely the officer investigated those matters – such as exhaustion, prior injuries, age, or weather conditions. If the officer did not have probable cause to arrest you, you will win the ALR hearing.

Step 5: Failure to Read Statutory Warning

If the officer did not read you the DIC-24 statutory warning asking you for a sample of your breath or blood, you should win the ALR hearing.

Step 6: Request the Breath Records

Breath tests are getting to be rare these days – most agencies get blood. However, if you have a breath case (which means you consented to the test), request the “inspection, maintenance and/or repair records” for the 30 days before and after the test. If DPS does not provide them after you’ve paid for them, the breath test won’t come in as evidence in the ALR hearing. See Texas Admin Code Rule 159.151

What are my odds of winning an ALR hearing in Texas?

DPS has the upper hand in these cases. They have a low burden of proof – far lower than proof beyond a reasonable doubt. Notice they don’t have to prove that you were intoxicated in most cases. In fact, here is breakdown of how many ALR hearings DPS won in Texas in 2015:

How long does it take to get an ALR Hearing?

Once your attorney requests the ALR hearing, it can take two weeks to 120 days for DPS to schedule a hearing date. Your attorney will be notified of this date, which is typically a few weeks to a month from the date of the notice.

How do I get my license back after the DWI license suspension period in Texas?

After the suspension period is over, you may contact your local DPS office to have your license reinstated. You will be responsible for paying a reinstatement fee, which is typically $125. Your attorney will be able to confirm your eligibility for reinstatement before you go in by logging into the DPS website.

Can an ALR decision be appealed?

Yes. You will be forced to pay a fee to appeal the underlying decision, but you may appeal the ALR decision. This also grants you more time to drive on your license without the suspension going into effect.

The post How to Win an ALR Hearing in Texas – Administrative License Suspension appeared first on Varghese Summersett PLLC.

The coronavirus pandemic has undoubtedly had an effect on criminal cases in Texas. If you’ve wondered what types of cases are on the rise, whether criminal cases are being resolved, or if individuals charged with offenses are retaining attorneys, this article is for you. Considering that the Supreme Court of Texas has issued its  Twenty-Second Emergency Order, it’s a given that COVID-19 has had an impact on criminal courts, but here’s a look at just how much. In this article, we’ll examine Texas as a whole and then drill down for a closer look at Tarrant County.

Here are the top 15 things we learned about coronavirus and criminal cases by examining the raw data from March through June available through the Office of Court Administration. 

1. Fewer Felony Cases Filed in Texas

In 2019, an average of 24,758 felony cases were filed each month across the state of Texas. The First Emergency Order was signed in mid-March, and since then, felony case filings declined as follows:

• March – 21,614
• April – 16,774
• May – 20,536
• June – 21,545

2. Felony Case Filings Increased in Tarrant County, Despite Statewide Drop

While felony case filings are down across the state, the number of new felony cases filed each month in Tarrant County increased dramatically in April before falling to mostly normal levels. In 2019 in Tarrant County, the average number of new felony cases filed each month was 2,012.

From March through June of this year, the filings of new felony cases were:

• 1,488 – March
• 3,236 – April
• 1,959 – May
• 1,888 – June

The average number of felony cases filed in Tarrant County since March is 2,143. If we exclude March, because April was the first full-month of limited court activity, there were 2,361 cases felony cases filed in Tarrant County during the pandemic or a 17% increase in felony case filings. During the same period, overall felony case filings in Texas dropped 21%.

3. Fewer Felony Cases are Being Resolved in Texas

In 2019, prosecutors across Texas resolved about 96 felony cases for every 100 felony cases filed. During the pandemic –  which was declared a disaster in Texas on March 13 – that number dropped to:

• March – 81 cases for every 100 filed
• April – 53 cases for every 100 filed
• May – 43 cases for every 100 filed
• June – 58 cases for every 100 filed

4. Tarrant County Lags Behind State in Felony Case Resolutions

Case resolutions in Tarrant County during the pandemic are below the statewide average. In 2019, the Tarrant County District Attorney’s Office resolved about 89 felony cases for every 100 felony cases that were filed.

During the pandemic, that average dropped to:

• March – 97 cases for every 100 filed (compared to the state average of 81 cases for every 100 filed)
• April – 26 cases for every 100 filed (compared to the state average of 53 cases for every 100 filed)
• May – 38 cases for every 100 filed (compared to the state average of 43)
• June – 50 cases for every 100 filed (compared to the state average of 58)

5. Criminal Cases Backlogged Under Sharen Wilson’s Administration Despite Increase in Number of Prosecutors

The Office of Court Administration’s clearance rate measures how effectively prosecutors are resolving cases. A clearance rate of 100 percent indicates that the court disposed of the same number of cases during the year as were added to the docket during the year. A clearance rate of less than 100 percent results in an increased backlog. The clearance rate for Tarrant County District Attorney Sharen Wilson’s current administration has been lower than the previous administration, despite the Wilson administration having a greater number of prosecutors and a ballooning budget.

Case resolutions have dropped while the number of criminal prosecutors at the Tarrant County District Attorney’s Office has increased by 32%.

Tarrant County District Attorney Sharen Wilson’s budget has increased 15% since 2015, while her salary increased by 24%.

6. Murder Cases on the Rise in Tarrant County

In 2019, on average, there were less than two capital murder cases filed in Tarrant County each month. In June 2020 alone, 10 new cases were filed.

In 2019, the average number of murder cases filed each month in Tarrant County was five. The statistics for March through June 2020 are as follows:

• March – 11
• April – 15
• May – 10
• June – 11

As new murder cases continue to be filed, pending murder cases remain unresolved. Between January 2019 and June 2020, the number of murder cases pending in Tarrant County almost doubled.

7. Aggravated Assault Cases on the Rise in Tarrant County

In 2019, the average number of aggravated assault and attempted murder cases filed each month in Tarrant County was 150. In April of 2020 alone, there were 427 new filings.

8.  Adult Sexual Assaults on Rise in Tarrant County

In 2019, there were nine adult sexual assaults filed on average each month in Tarrant County. In April 2020 alone, there were 21 adult sexual assaults filed.

9. Unresolved Child Sexual Assault Cases Rising in Tarrant County

In 2019, an average of 41 child sexual assaults were filed in Tarrant County each month. While that number has remained steady during the pandemic, the number of unresolved child sexual assault cases has increased. For example, in January 2019, there were 396 pending cases. As of June 2020, that number ballooned to 647.

10. Felony Family Violence Cases on the Rise in Tarrant County, Misdemeanor Domestic Violence Dipped

In 2019, there was an average of 91 felony family violence cases filed each month in Tarrant County. To compare in 2020, there were 222 felony family violence cases filed in April, 148 in May and 135 in June. The number of pending family violence cases rose from 519 to 950 from January 2019 to June 2020 despite the Tarrant County District Attorney’s creation of a Felony Family Violence Unit and “Not in My County” political campaign. For those who believe justice delayed is justice denied, this massive increase in pending family violence cases contradicts Sharen Wilson’s claimed efforts to reduce domestic violence in Tarrant County.

The pending misdemeanor family violence cases have seen a moderate increase since January 2019. New misdemeanor family violence cases are lower than the average in 2019. The monthly average of new misdemeanor domestic violence cases in 2019 was 223. New misdemeanor domestic violence cases dropped in April, May, and June – although this is most likely because the State of Disaster enhancement under Penal Code 12.50 allows Class A misdemeanor assaults to be filed as state jail felonies if they occur during a disaster declaration.

11. Moderate Decrease in Misdemeanor DWIs in Tarrant County

DWIs are down, but not as much as you’d expect with lockdowns, bar closures, and occupancy limits at establishments that are open. In 2019, there was an average of 438 misdemeanor DWIs filed in Tarrant County each month.

The number of new misdemeanor DWI filed during the first four months of the pandemic are as follows:

• March – 529
• April – 343
• May – 288
• June  -339

On average,  375 new misdemeanor cases were filed each month during the pandemic.

12. Misdemeanor Thefts Down in Tarrant County

In 2019, an average of 239 new misdemeanor thefts cases were filed each month in Tarrant County. During the pandemic, which struck in mid-March, the number of filings were:

• March – 282
• April – 129
• May – 173
• June – 196

13. Misdemeanor Marijuana Filings Declined in Tarrant County

On average, 330 new misdemeanor marijuana cases were filed each month in 2019 in Tarrant County. During the pandemic, the filings were as follows:

• March – 263
• April – 217
• May – 177
• June – 228

14. Other Misdemeanor Drug Filings Down, Dismissals Up in Tarrant County

In 2019, an average of 98 new misdemeanor drug cases were filed each month in Tarrant County. During the pandemic, the filings were:

• March – 97
• April – 70
• May – 71
• June – 49

Meanwhile, dismissals of drugs cases have sky-rocketed:

15. Fewer People Have Attorneys (Retained or Appointed) in Tarrant County

The number of people hiring attorneys and the number of people receiving court-appointed attorneys has fallen during the pandemic while cases filings have been on the rise. For example, in April more than 3,200 felony cases were filed in Tarrant County. Less than 150 of those hired attorneys.

Coronavirus and Criminal Cases: Why These Statistics Matter

Justice delayed is justice denied. Both victims and citizens accused suffer when cases languish without resolutions. Taxpayers bear the burden of the lack of case resolutions – funding district attorneys offices, paying to house or supervise citizens accused of committing crimes, and when cases aren’t resolved as they should be ultimately the cost of jury trials. For those that need rehabilitation and punishment, delaying programs, sanctions, and sentences reduces the efficacy of such measures. When cases are not resolved, there is little deterrent value to the efforts of even the best prosecutors.

The post The Effect of Coronavirus on Criminal Cases in Texas (15 Observations) appeared first on Varghese Summersett PLLC.

What is Nondisclosure of a Criminal Case?

A non-disclosure is a court order that prevents public entities, including police, prosecutors, and court clerks, from disclosing or releasing arrest and case information to the general public. The charge is sealed from public view and it will not show up on most background checks.

People who receive a nondisclosure do not have to report their arrest to most employers. However, certain licensing agencies, law enforcement and government organizations will still have access to the information and records. People interested in becoming a teacher, nurse, lawyer or any job licensed by the state must report it to their respective licensing agency, as these boards will see the charge.

Background of Criminal Nondisclosures

In Texas, any type of arrest or criminal charge – even if it resulted in a favorable outcome – can adversely impact your future.  A criminal record may prevent you from getting into the college of your choice, landing your dream job, or even closing a deal on a new house.  It is important to understand your options.

A nondisclosure allows you to seal your record from most prying eyes so you can get on with your life. In this article, Benson Varghese, a Fort Worth Nondisclosure Lawyer, explains the nondisclosure process in Texas. Fortunately, significant changes to nondisclosure laws went into effect in September 2015, and again in September 2017 and 2019, which expanded eligibility for people seeking to seal their criminal record through a nondisclosure.

If you believe you may be eligible for a nondisclosure, contact a Fort Worth Nondisclosure Attorney at our office for a free consultation. We will review your case and work to get your criminal record sealed so you can put your past behind you.

What’s the Difference between a Nondisclosure and an Expunction?

An expunction orders the destruction of all records of an offense. A nondisclosure, on the other hand, seals the record prevents the Texas Department of Public Safety and other law enforcement agencies from releasing arrest and case information to anyone other than another law enforcement agency or certain specific agencies. In other words, a nondisclosure ensures that your record is no longer a “public record.”

Who is Eligible for a Nondisclosure?

Prior to September 1, 2015, only individuals who had their cases dismissed after successfully completing deferred adjudication probation were eligible for a nondisclosure. That has since changed – and in a big way. Currently, there are a number of scenarios under which nondisclosures are now possible. Under Texas Government Code, Chapter 411, you may qualify for a nondisclosure (other conditions apply) if:

• you successfully completed deferred adjudication for certain nonviolent misdemeanors AFTER September 1, 2017 and it has been at least 180 days since your plea – Section 411.072. This is sometimes referred to as an automatic nondiclsoure because the judge “shall” grant the order of nondisclosure UNLESS the judge finds it would not be in the best interest of justice;
• you successfully completed deferred adjudication for certain felonies or misdemeanors and obtained a dismissal – Section 411.0725. This is the most commonly applied for nondisclosure;
• you received a dismissal after completing deferred adjudication for a qualifying DWI or BWI (Boating While Intoxicated) – Section 411.0726;
• you successfully completed a veteran’s court treatment program – Section 411.0727;
• you are a sex trafficking victim and your prostitution conviction or related offense was set aside (judicial clemency) – Section 411.0728;
• you completed a veteran’s reemployment program – Section 411.0729;
• you successfully completed straight probation for certain misdemeanors and have never previously been convicted or placed on deferred adjudication for any offense – Section 411.073;
• you successfully completed DWI probation for a first-time offense– Section 411.0731
• you served jail time for certain non-violent, non-sexual misdemeanors after Sept 1, 2015 – Section 411.0735;
• you served a misdemeanor DWI jail sentence for a first-time offense – Section 411.0736.

As you can see, this can be a bit complicated. To find out if you are eligible for a nondisclosure, contact our law firm to speak to an experienced Fort Worth nondisclosure lawyer. We will review your case and determine if you meet the criteria to have your record sealed. 

What Offenses are Not Eligible for a Nondisclosure in Texas?

You cannot get a nondisclosure in Texas IF:

1. You’ve ever had to register as a sex offender

You cannot get a nondisclosure in Texas for the following offenses in Texas:

1. Aggravated Kidnapping
2. Any family violence offense or any case in which there was an affirmative finding of family violence
3. Murder
4. Human trafficking
5. Injury to a Child
6. Injury to the Elderly
7. Injury to the Disabled
8. Abandoning a Child
9. Endangering a Child
10. Violation of Certain Protective Orders
11. Stalking

You cannot get a nondisclosure in Texas if you are convicted or receive deferred during the waiting period.

You cannot get a nondisclosure in Texas if you are convicted or placed on deferred adjudication for any offense other than a fine-only traffic offense during the waiting period. The waiting period for nondisclosures are:

DWI Nondisclosure Restrictions

You cannot get a DWI Nondisclosed in Texas if:

You cannot have a DWI nondisclosed in Texas (after deferred, probation, or a conviction) if (excluding the DWI) you have ever been previously convicted of or placed on deferred adjudication for anything other than a Class C traffic offense. (See 411.0726(b)(3) and 411.0731(b)(2))

Can I Get a Non-disclosure for a DWI in Texas?

Yes, as long as it’s a first-time DWI and certain other criteria are met. In 2017, House Bill 3016, also called the “Second Chance Law” went into effect, allowing for a nondisclosure of a first-time DWI (with probation or jail time) under certain circumstances. Before this law was enacted, a DWI could not be sealed in Texas. To be eligible:

• It must be a first-time misdemeanor DWI offense.
• Driver’s BAC cannot be .15 or higher.
• Case cannot have involved an accident involving another person (including your own passenger)
• Applicant must not have any other prior convictions, other than this DWI, for anything other than a traffic offense.
• Applicant must have successfully completed probation for the DWI offense and paid all fines, costs and restitution OR received a jail sentence and paid all fines, costs and restitution.
• Applicant cannot have been placed on deferred adjudication for certain violent crimes or any crime requiring sex offender registration. Prior traffic offense punishable by fine-only are not considered.
• Nondisclosure will only be granted if judge determines it is the best interest of justice. 

Can I Get a Non-Disclosure if I Completed Straight Probation for a Misdemeanor Offense?

Yes, for certain misdemeanors. There are generally two types of community supervision in Texas – deferred adjudication probation and straight probation. The difference between the two is that there is a finding of guilt – a conviction – if a person receives straight probation.

Before September 2015, a person could not get a nondisclosure after straight probation in Texas even if they successfully completed the terms of their probation. They were only eligible if they had successfully completed deferred adjudication. The law was expanded in 2015 when Government Code Section 411.073 was enacted, which made a defendant eligible to apply for a nondisclosure after successfully completing straight probation for certain misdemeanors.

To qualify for a nondisclosure after straight probation:

• The offense cannot be an intoxication-related crime, other than a first-time DWI qualifying with a blood alcohol concentration of less than .15 that didn’t involve an accident. The offense also cannot be engaging in organized crime.
• The defendant cannot have been convicted or placed on deferred adjudication for any offense, other than a fine-only traffic violation, at any time, including after sentencing, during probation or during any applicable waiting period.
• The defendant must have successfully completed probation.

Can I Get a Nondisclosure if I was Sentenced to Jail Time?

Yes, in some circumstances. Similar to straight probation cases, certain misdemeanor convictions that resulted in jail time are also now eligible for nondisclosures under Government Code Section 411.0735. Nondisclosure for jail time basically tracks the same rules and exceptions as nondisclosures for straight probation:

• Intoxicated offenses (except for first-time DWI offenders who qualify under House Bill 3016) and engaging in organized activity are precluded.
• The defendant cannot have been convicted or placed on deferred adjudication or community supervision for any offense other than a fine-only traffic violation at any time, including after sentencing, during probation or during any applicable waiting period.
• Defendant must wait two years after their release from jail to petition for a nondisclosure and show that a nondisclosure is in the best interest of justice.

Nondisclosure after Jail in Texas: Checklist

You may be able to have your offense expunged after jail time, on a non-DWI offense if:

1. The offense was a misdemeanor;
2. It was not an offense involving organized crime, family violence, nor can it be sexual in nature.
3. You have never previously been convicted or placed on deferred adjudication for another offense (other than a traffic citation);
4. You have waited two years from the date you completed your sentence.
5. The court finds granting the nondisclosure will be in the best interest of the public. Since this is a subjective finding, no one can guarantee a successful nondisclosure under this statute.

What are the Waiting Periods for a Nondisclosure?

In Texas, certain waiting periods are required before you can ask the court for a nondisclosure.

For felonies, five years must elapse from the date of discharge before a petition for non-disclosure can be filed. For many misdemeanors, you can file immediately after completing deferred adjudication. However, for some misdemeanors, a petitioner must wait two years after the date of discharge before seeking a petition for non-disclosure.

Offenses with two year-waiting periods include:

• Abuse of Corpse
• Advertising for Placement of a Child
• Assault
• Attack on Assistance Animal
• Certain Bond Violations in Family Violence Cases
• Cockfighting
• Cruelty to Animals
• Destruction of Flag
• Discharge of Firearm in Municipality having over 100,000
• Disorderly Conduct
• Disrupting Meeting or Procession
• Dogfighting
• Electronic Transmission of Certain Visual Material Depicting Minor
• False Alarm or Report
• Funeral Service Disruption
• Harassment
• Harboring a Runaway
• Hoax Bombs
• Illumination of Aircraft by Intense Light (Laser)
• Indecent Exposure
• Interference with Emergency Call
• Making Firearm Accessible to Minor
• Obscene Display or Distribution
• Obstruction of a Highway
• Possession of a Prohibited Weapon
• Promotion of Prostitution
• Prostitution
• Public Lewdness
• Riot
• Sale, Distribution, or Display of Harmful Material to Minor
• Silent or Abusive 911 Calls
• Unlawful Carrying of a Weapon
• Unlawful Disclosure of Intimate Visual Material
• Unlawful Restraint
• Unlawful Transfer of Certain Weapons
• Voyeurism

To accurately determine your eligibility date, it’s important to contact an experienced non-disclosure attorney who knows all of the rules and regulations that comes with petitioning the court for a non-disclosure.  A knowledgeable Fort Worth nondisclosure attorney will be able to calculate your waiting period and determine your eligibility.

What is the Process to Request a Nondisclosure in Fort Worth?

As mentioned, a nondisclosure in Texas is the legal mechanism used to seal a person’s criminal history so that no one other than law enforcement agencies or a state license agencies have access to the record. To obtain a nondisclosure, a petition for nondisclosure must be prepared and filed with the proper court in county in which you were charged. The state then has an opportunity to request a hearing or the court can set one on its own. At the hearing, the court will determine if granting the nondisclosure is in the best interest of justice, and if so, the judge will grant an order prohibiting the disclosure of the criminal record.

Can I Deny an Offense if it was Nondisclosed?

Generally, if you have an offense that has been nondisclosed, you are no longer required to report it. However, there are agencies for which nondisclosure orders do not apply.

What Agencies have Access to a Nondisclosed Offense?

There are specific agencies that have access to nondisclosed offenses, including

• Law enforcement agencies
• State Board of Educator Certification
• School districts, charter schools, private schools, regional education service centers, commercial transportation companies, or education shared service arrangements;
• Texas State Board of Medical Examiners
• Texas School for the Blind and Visually Impaired;
• Texas Board of Law Examiners;
• State Bar of Texas;
• District court regarding a petition for name change
• Texas School for the Deaf;
• Department of Family and Protective Services;
• Texas Youth Commission;
• Department of Assistive and Rehabilitative Services;
• Department of State Health Services, a local mental health service, a local mental retardation authority, or a community center providing services to persons with mental illness or retardation;
• Texas Private Security Board;
• Municipal or volunteer fire department;
• Board of Nurse Examiners;
• Safehouse providing shelter to children in harmful situations
• Public or nonprofit hospital or hospital district;
• Texas Juvenile Probation Commission;
• Securities commissioner, the banking commissioner, the savings and loan commissioner, or the credit union commissioner;
• Texas State Board of Public Accountancy;
• Texas Department of Licensing and Regulation;
• Health and Human Services Commission; and
• Department of Aging and Disability Services.

Why are Nondisclosure Petitions Sometimes Denied?

There are several reasons a nondisclosure can be denied, including inaccurate eligibility, a mistake in the petition, or the judge did not believe it was in the best interest of society. It’s interesting to note that if you are eligible for an expunction and follow all the proper procedures, an expunction must be granted. However, if you are eligible for a nondisclosure and follow all the proper procedures, the judge has the discretion to grant or deny your petition for a nondisclosure. You will increase your chances of obtaining a nondisclosure if you rely on the skills of an experienced Fort Worth nondisclosure lawyer.

How Long Does the Fort Worth Nondisclosure Process Take?

Once we review your case for eligibility, we will prepare the motion for nondisclosure. We will confirm the information we find in the court records with you before filing the motion. Once the motion is filed, the State will have an opportunity to respond. This generally takes two to six weeks, but can take longer. If the State does not have an objection, the parties may come up with an agreed order. The matter then gets set on the court’s docket. That may take weeks or months. The court could require a hearing, or if there’s an agreement, might waive the hearing. Once the order is signed by the court, the process is only halfway done. We then send the order of non-disclosure to every entity we believe has your information. They then go through the process of taking down the information from the public eye. It takes time for these orders to get processed though. For example, Texas DPS – the primary supplier of background information in Texas – is about four months behind on complying with orders – and that’s before the pandemic. As a result, it could take a number of months for the order to be complied with. We generally wait about six months before running a background check. At that point if your information is still showing up and we know who is publishing the information, we send a certified letter and a copy of the order to that entity explaining it is a criminal violation to distribute the sealed information. So far, we’ve been able to get everything down using this method, but if the information did not get taken down, we’d make a referral to law enforcement.

How Can a Fort Worth Nondisclosure Lawyer Help?

As you can tell, nondisclosures can be complicated. Determining if you are eligible and how long you have to wait to file a petition can be tricky and mistakes can derail the process. That’s why it’s best to leave it up to an experienced Fort Worth nondisclosure attorney who knows how to seal a criminal record. Our team at Varghese Summersett will do all the heavy lifting for you. We will determine eligibility, calculate your waiting period, draft and file the petition and aggressively represent you in court. We know you’ve already been through a lot and probably want to avoid the courthouse as much as possible. Let us take it from here while you focus on the future. Call us today for a free consultation.

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Seeking the death penalty is an enormous expense, particularly after fairly recent changes in the law that require the testing of all the evidence in a death penalty case – a change that came about after DNA and other scientific evidence led to exonerations.

Since 2015, Tarrant County juries have been asked to sentence someone to death five times. Only two juries have elected to do so.

Despite the costs, lack of success in jurors returning a verdict of death, and ongoing concerns about jury safety in light of the global pandemic, the Tarrant County District Attorney currently has two death penalty cases on her trial board.

Statistics show the imposition of the death penalty has sharply declined in the Lone Star state over the past two decades. Death sentences in Texas have dropped 92 percent since 1999, when juries sent 48 defendants to Death Row.

In 2019, Texas juries only gave four defendants the death penalty, according to the annual report recently released by the Texas Coalition to Abolish the Death Penalty (TCADP). Four other cases in which prosecutors sought the death penalty resulted in sentences of life in prison without the possibility of parole. Death sentences remained in the single digits for the fifth year in a row.

Despite this downward trend, Tarrant County continues to seek the death penalty at a significant cost to taxpayers, even though juries have rejected 60 percent of the death cases tried in Tarrant County since District Attorney Sharen Wilson took office in January 2015.  The Dallas Morning News estimated in 1992 that a death penalty case costs Texas $2.3 million, which translates into about $4.2 million today.

Tarrant County prosecutors have announced plans to seek the death penalty in at least three pending cases.

“It is discouraging that the Tarrant County District Attorney’s Office continues to pursue new death sentences and set execution dates at a time when many Texas prosecutors have moved away from the use of the death penalty,” said Kristin Houle, executive director of TCADP.

Houle said Tarrant County is second only to Harris County in the number of new death sentences imposed by juries since 2015. In contrast, juries in Dallas County have imposed just one new death sentence since 2013.

“It is clear the application of the death penalty depends more on geography than any other factor,” she said. “It’s time for Tarrant County prosecutors to reconsider the efficacy and cost of the death penalty as a means of achieving justice, particularly when the option of life in prison without the possibility of parole is increasingly palatable to jurors.”

Here’s a look at the death penalty cases prosecuted in Tarrant County since 2015, as well as other recent death penalty developments in Texas and nationwide.

Death Penalty Trials in Tarrant County since 2015:

Since 2015, Tarrant County juries have been asked to sentence capital murder defendants to death on five separate occasions. Only two juries have elected to do so. Here’s a look at the cases:

Death Penalty Rejections:

Burnches Mitchell
In November 2019, a Tarrant County jury rejected prosecutors’ request to sentence Burnches Mitchell to death and instead opted for life in prison without the possibility of parole. Mitchell was convicted of capital murder for the Jan. 27, 2017, robbery and fatal shooting of Khrystophir Scott, who was a customer in the Quik Sak Store in White Settlement when Mitchell attempted to rob it. During his trial, jurors also learned that Mitchell stabbed a man to death when he was 13 years old.

Miguel Hernandez
In October 2017, jurors sentenced Miguel Angel Hernandez to life in prison without parole, rather than sending him to Death Row, for attacking two men during a violent robbery inside their home, leaving one dead and the other wounded. Hernandez was convicted of capital murder for the July 27, 2014, slaying of James Bowling, who was strangled during a violent fight during a burglary attempt. Bowling’s roommate, Don Keaton, was assaulted and doused in drain cleaner but survived.

Gabriel Armandariz
In March 2015, a Tarrant County jury rejected the death penalty for Gabriel Armandariz, who was convicted of strangling his two young sons in April 2011 in Graham. He was instead given life in prison without the possibility of parole. The case was moved to Tarrant County on a change of venue, so it was decision of the Young County District Attorney (not the Tarrant County DA) to seek the death penalty in this particular case.

Death Sentences:

Hector Acosta
In November 2019, a Tarrant County jury sentenced Hector Acosta to death for killing two people in Arlington in 2017, beheading one of the victims and mutilating their bodies with a machete and a two-by-four. Acosta, a Mexican drug cartel hit man, was convicted of capital murder fatally shooting Erik “Diablo” Zelaya and his 17-year-old girlfriend, Iris Chirinos.

Amos Wells
In November 2016, a Tarrant County jury  sentenced Amos wells to death for killing his pregnant girlfriend, Chanice Reed; her mother; and Chanice Reed’s 10-year-old brother. The three were fatally shot on July 1, 2013, after an argument at the family’s home in southeast Fort Worth.

Death Penalty Trials on Deck in Tarrant County

The Tarrant County District Attorney’s Office has publicly announced their intentions to seek the death penalty in several  pending capital murder cases. They include:

Paige Terrell Lawyer
In April 2019, Tarrant County prosecutors filed notice of their intention to seek the death penalty against Paige Terrell Lawyer, who is accused in the 2018 strangulation of his ex-girlfriend, O’Tishae Womack, and her 10-year-old daughter, Kamyria, in an east Fort Worth apartment.

Reginald Gerald Kimbro
Reginal Gerald Kimbro is facing the death penalty in connection with the April 10, 2017, strangulation of Molly Matheson, a 22-year-old woman who was found dead in her apartment near TCU. Kimbro is also suspected of raping and killing another woman, Megan Getrum, in Plano and is a suspect in two other sexual assault cases in which the victims reported being choked.

James Earnest Floyd Jr.
James Earnest Floyd is accused of killing a 69-year-old man in west Fort Worth and wounding his wife in a home invasion. Officials said Floyd is accused of beating John Porter with a metal table, demanding his wallet and shooting him in the head. Officials said Floyd also shot Porter’s wife, Diane, during the robbery but she survived.

Texas Juries Rejected the Death Penalty in 50 Percent of all Capital Trials in 2019

In 2019, Texas juries rejected the death penalty in half of the cases in which prosecutors sought capital punishment, according to the Coalition report. Eight death penalty trials were conducted in Texas, resulting in four death sentences and four sentences of life in prison without parole. Two of those death penalty trials were in Tarrant County, resulting in one death sentence and one sentence of life in prison without parole, mirroring the statewide trend.

In addition to Tarrant, the three other counties responsible for death sentences were Harris, Smith, Tarrant and Upton.

Texas Counties with More than One Death Sentence in the Last Five Years

According to TCADP, a total of 17 counties have imposed death sentences in the last five years. Of these, only four counties accounted for more than new death sentence in this time period. More than one-third of all death sentenced imposed by juries in the last five years came from these four counties. Notice, Dallas County is not on the list.

Source: Texas Coalition to Abolish the Death Penalty

Why is the Texas Death Penalty Declining?

The reduction in capital punishment can be attributed to a combination of factors, including prosecutors waiving the death penalty in capital murder cases, jurors opting to assess life in prison without parole instead of a death sentence, and the state’s highest criminal appeals court staying, withdrawing or post-phoning death warrants. Not to mention, it is extremely expensive, costing millions of dollars and six to eight weeks of court time. If a defendant gets the death penalty, their case is automatically appealed –  a process that can go on for decades. Many counties simply cannot afford to seek the death penalty or don’t want to pass the expense on to taxpayers.

What Constitutes a Capital Offense in Texas?

A capital offense in Texas is punishable by either life in prison without parole or death. The following crimes constitutes capital murder in Texas:

• Murder of a peace officer or fireman in the line of duty;
• Murder during the commission or attempted commission of the following felonies: kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat;
• Murder-for-hire — that is, killing for payment or promise of payment;
• Murder during an escape or attempted escape from a penal institution;
• Murder, while incarcerated, of a correctional employee;
• Murder, while incarcerated, in conjunction with organized criminal activity;
• Murder while already incarcerated for capital murder or murder;
• Murder while serving a life sentence or 99-year sentence for aggravated kidnapping, aggravated sexual assault or aggravated robbery;
• Murder of more than one person during the same criminal transaction or during different transactions but under the same common scheme;
• Murder of a child under age 10;
• Murder of a judge or justice or in retaliation for the services of a judge or justice

More Facts about Capital Punishment and Texas Death Row:

• The death penalty has been carried out in Texas 570 times since 1982. This includes 62 people who were convicted in Dallas County and 42 people convicted in Tarrant County.
• Texas put nine people to death in 2019, compared to 13 in 2018.
• More than half of the 213 inmates on Texas Death Row come from the state’s most populous counties – Harris (78 inmates), Dallas (22 inmates) and Tarrant (16 inmates).
• Six women are on Texas Death Row. Arguably the most infamous condemned inmate is Darlie Routier, who was convicted in the June 1996 of murder of her 5-year-old son, Damon, inside the family’s suburban Dallas home. Damon’s 6-year-old brother, Damon, was also stabbed to death. Routier, now age 46, has been on Texas’ Death Row for 23 years. No execution date has been set.
• The average amount of time spent on Texas Death Row is 10.87 years, but two inmates, David Lee Powell and Lester Bower, each spent 31 years.
• On June 29, 1972, in Furman v. Georgia, the U.S. Supreme Court declared capital punishment “cruel and unusual,” resulting in 52 men in Texas having their death sentences commuted to life in prison. The death penalty was reinstated in Texas in 1973.
• Texas Death Row inmates no longer get their requested “last meal.” The long-standing practice was terminated in 2011 after prison officials honored an elaborate meal request from Lawrence Russel Brewer, who was convicted in 1998 dragging death of James Byrd Jr. in Jasper. Before his execution, Brewer received two chicken-fried steaks; a triple-meat bacon cheeseburger; a cheese omelet with ground beef, tomatoes, onions, bell peppers and jalapeños; a bowl of fried okra with ketchup; one pound of barbecued meat with half a loaf of white bread; three fajitas; a meat-lover’s pizza; one pint of Blue Bell Ice Cream; a slab of peanut-butter fudge with crushed peanuts; and three root beers. The meal outraged State Senator John Whitmire, chairman of the Senate Criminal Justice Committee, who wrote a note to the Texas Department of Criminal Justice asking them to immediately stop the practice or he would pass a bill to do so.

The Death Penalty Nationwide

• Half of all U.S. states have abolished the death penalty or now prohibit executions.
• In 2019, for the fifth straight year, fewer than 30 people were executed in the United States and fewer than 50 were sentenced to death.
• Seven states executed 22 inmates last year; Texas was responsible for nearly half.
• California has more people on Death Row than any other state, followed by Florida, Texas and Alabama.

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