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What Texas law makes selling fake drugs a crime?

Under Chapter 482.002 of the Texas Health and Safety Code, a person commits the offense of “unlawful delivery or manufacture with intent to deliver” a simulated controlled substance if he or she:

(1) expressly represents the substance to be a controlled substance;

(2) represents the substance to be a controlled substance in a manner that would lead a reasonable person to believe that the substance is a controlled substance; or

(3) states to the person receiving or intended to receive the simulated controlled substance that the person may successfully represent the substance to be a controlled substance to a third party.

Selling fake drugs in Texas

Tarrant County officials recently announced the county’s largest-ever seizure of fentanyl when more than 2,000 grams were found in a residence. The sheriff’s office claimed it was enough fentanyl to cause more than a million fatal doses.

Fentanyl is a synthetic opioid often found disguised as something less powerful in counterfeit pills. Unsuspecting buyers, including school-aged children, are accidentally overdosing on spiked pills that look like brand-name drugs such as Oxycontin, Percocet, and Vicodin. Mass-produced fake prescription pills are often falsely marketed as the real deal and sold on social media platforms by criminal drug networks.

Selling fake drugs in Texas is illegal, regardless of whether it’s a counterfeit prescription drug or baking flour packed to look like cocaine. And prosecutors aren’t taking these cases lightly.

If you have been arrested or under investigation for an alleged simulated substance or counterfeit drug offense, you should retain legal counsel as soon as possible. The criminal defense attorneys at Varghese Summersett have vast experience handling drug cases. 

How does Texas define fake drugs?

The Texas Health and Safety Code defines a simulated controlled substance as any substance “purported to be a controlled substance, but is chemically different from the controlled substance it is purported to be.”

State law makes it a criminal offense to possess, manufacture or deliver a counterfeit substance or any device that can be used to manufacture counterfeit substances.

A counterfeit drug in Texas includes the drug, the container, or labeling of a drug that without authorization, resembles the trademark, brand name, or identifying logo of a “drug manufacturer, processor, packer or distributor” other than the actual company that manufactured, processed, packed, or distributed the drug,” and falsely purports or represents to be the real product or to have been packed or distributed by the actual manufacturer, processor, packer, or distributor.

How do Texas courts determine fake drug offenses?

Texas courts typically consider three main factors when evaluating whether someone represented a simulated controlled substance to be a legitimate controlled substance in a way that could lead a reasonable person to believe the substance was, in fact, a controlled substance.

Under Texas law, the court may consider all relevant factors in the case, including: 

  1. The simulated controlled substance was packaged in a manner generally used for the delivery of a controlled substance.
  2. The delivery or intended delivery included an exchange of or demand for property as consideration for delivery of the substance, and the amount was substantially more than the reasonable value of the simulated controlled substance.
  3. The physical appearance of the finished product containing the substance was substantially identical to a controlled substance.

Texas law requires proof that an offer to sell a simulated controlled substance is “corroborated by a person other than the offeree or by evidence other than a statement of the offeree.”

Do prosecutors have to prove the nature of a fake drug?

No. Prosecutors do not need to prove anything regarding the nature of the actual substance involved in a case involving the sale of a simulated controlled substance. 

The state only needs to prove that what was offered to the buyer was represented as a controlled substance. This is an important distinction because the description of the offense, such as the delivery of heroin by offering to sell it, incorrectly suggests prosecutors must prove the actual substance was indeed heroin. It doesn’t.

What is the punishments for selling fake drugs in Texas?

Selling fake drugs in Texas is a state jail felony punishable by 6 months to 2 years in a state jail facility and a maximum $10,000 fine.

State Jail Felony

State Jail Felony Punishment in Texas

Texas fake drug offenses include more than selling

A Texas resident can also be charged with a Class A misdemeanor fraud offense if they knowingly or intentionally make, distribute or possess any tool or device used to reproduce an actual or simulated trademark, trade name, or other identifying mark to represent a controlled substance.

Under Texas Health and Safety Code, the receipt of a prescription drug that is adulterated, misbranded, stolen, obtained by fraud or deceit, counterfeit, or suspected of being fake, and the delivery or proffered delivery of such a drug for payment or otherwise is also a Class A misdemeanor offense.

Additional Class A misdemeanors include any act that causes a drug to be counterfeit, the sale or dispensing, or the holding for sale or dispensing of a counterfeit drug.

Recent examples of fake drug cases in Texas

In Texas, it’s possible to also be charged by state or federal prosecutors for selling fake drugs in Texas. Below are examples of defendants who were prosecuted for selling fake drugs. Some of the cases were prosecuted federally. This article describes the law and penalties in state court.

  • In 2022, a 40-year-old Fort Worth man was charged with selling fake Percocet pills laced with fentanyl.
  • In November 2021, nine people between the ages 35 and 60 were indicted in a Beaumont court for conspiring to traffic misbranded and counterfeit drugs, specifically promethazine-codeine cough syrup. The group allegedly sold more than $52 million in fake drugs.
  • In October 2021, 27 people between 23 and 64 in the Rio Grande Valley were arrested for trafficking counterfeit pills containing fentanyl and methamphetamine.
  • In September 2021, a 52-year-old Plano man who pleaded guilty to possession with intent to distribute and distribution of controlled substances, including counterfeit pharmaceutical drugs, was sentenced to 30 years in federal prison.
  • In June 2021, a 20-year-old Colleyville man died from an accidental overdose of a fake prescription drug containing para-fluorofentanyl, a synthetic opioid.
  • In December 2020, 13 people in Austin were charged, including current and former college students, in connection with a drug trafficking operation that allegedly sold counterfeit prescription drugs laced with fentanyl and methamphetamine to college students in Central Texas. The alleged ringleader was a 23-year-old UT-Austin student at the time.
  • In 2019, a 34-year-old man was sentenced to more than 20 years in prison for his role in a deadly San Antonio-based pill mill that sold more than 800,000 counterfeit prescription drugs between 2015 and 2017, including oxycodone pills laced with Fentanyl, Adderall pills laced with methamphetamine, and Xanax laced with cocaine.
  • In 2018, 10 airline employees at Dallas-Fort Worth International Airport were charged with allegedly conspiring to smuggle counterfeit methamphetamine across the country on commercial airlines. Those arrested ranged in ages between 22 and 47.
  • In 2013, two men, including a 49-year-old in Katy, were charged with smuggling counterfeit Viagra from China into the United States. The counterfeit drugs were allegedly shipped in bulk to Houston and Chicago and sold in small quantities.

Accused of selling fake drugs in Fort Worth or the surrounding area? Call us.

It is essential for anyone who has been arrested on charges of possessing or selling fake or counterfeit drugs in Tarrant County to seek legal help from an experienced defense attorney. Varghese Summersett has decades of experience defending drug cases and a proven record of exceptional results. Call our defense firm for a free consultation at 817-203-2220.

Varghese Summersett

What information is in a Texas juvenile record?

Texas juvenile records contain documentation filed during a youth’s time in the juvenile justice system. These records pertain to juvenile offenders and proceedings brought under the Juvenile Justice Code. They do not include names of child witnesses or victims, records from municipal or JP courts, or records of non-juveniles which generally means before the age of 10 or after 17 in most cases. Juvenile records typically include: 

  • Basic information such as birthdate, home address
  • Reports of arrests, charges, and detention
  • Court documents
  • Disposition status
  • Treatment records
  • Academic records

Who has a juvenile record in Texas?

Anyone in Texas charged with a Class A or B misdemeanor criminal offense or any felony offense between ages 10 and 16 has a juvenile file and record in the county for which the offense occurred. 

If you were charged with specific Class C misdemeanor offenses, and the original court transferred the case to a juvenile court, you have a juvenile record.

Sealing Juvenile Records

Everyone deserves a second chance. This is especially true for children, who often must make mistakes – even big ones – to learn valuable lessons about behavior and society.

That is why keeping juvenile records as private as possible has become a priority for Texas. In this article, our attorneys will explain Texas juvenile records, including what they contain, who has access to them, and how to make sure they’re sealed. 

The good news is some people who have juvenile offenses in their past have their juvenile records automatically sealed on the day they turn 19, provided they meet specific requirements.

Finding the Right Juvenile Attorney

It’s possible, however,  to seal a child’s juvenile record much sooner with the help of an experienced juvenile attorney.

If your child has been taken into custody, it’s important to retain an attorney immediately to ensure the child’s Texas juvenile record is sealed. Varghese Summersett’s Lisa Herrick is one of only three Board Certified juvenile attorneys in Tarrant County. She is ready to defend your child’s future.

When Tarrant County’s Juvenile Court May Not Seal Records

Tarrant County’s juvenile court may reject the sealing of juvenile records if the person has:

  • Received a determinate sentence for engaging in serious crimes such as murder, kidnapping, aggravated assault, and aggravated robbery
  • Habitual felony conduct as described by Section 51.031
  • Required to register as a sex offender
  • Was committed to Texas Juvenile Justice Department or to a post-adjudication secure facility unless the person has been discharged from TJJD.

Who can access Texas juvenile records?

Texas juvenile records are confidential, with some significant exceptions.

Law enforcement officials, prosecutors, probation and corrections officers, and juvenile justice officials have access to juvenile records that have not been sealed. Sensitive information in juvenile records, including counseling history or drug treatment, is available only to authorized personnel. The exceptions, by Texas law, include:

  1. Military personnel, with permission of the juvenile offender
  2. Criminal justice agencies
  3. Noncriminal justice agency authorized by federal statute or federal executive order to receive juvenile justice record information
  4. Juvenile justice agency
  5. Texas Juvenile Justice Department;
  6. Office of the independent ombudsman of the Texas Juvenile Justice Department;
  7. A district, county, justice, or municipal court exercising jurisdiction over a juvenile

What are the benefits of sealing Texas juvenile records?

The person can lawfully deny any juvenile offenses if their records have been sealed.

According to Texas law, the information in the records, the fact that the records existed, or the person’s denial of the existence of the records or the person’s involvement in a juvenile matter may not be used against the person in any manner, including in:

  1.  A perjury prosecution or other criminal proceeding
  2.  A civil proceeding, including an administrative proceeding involving a governmental entity
  3. An application process for licensing or certification
  4. An admission, employment, or housing decision

Why is sealing Texas juvenile records important?

Without records sealing, anyone with a history in the juvenile justice system has a criminal record with Texas Department of Public Safety and the FBI. 

Without sealing, an individual could be required to report existing juvenile records when applying for employment, school, or other applications. This could be an issue with college admissions, military enlistment, or obtaining financial aid or housing.

To be clear, however, juvenile records are not accessible to the general public the same way adult records are. But without a seal, multiple agencies have access, including criminal and juvenile justice agencies, school districts and schools where the person attends, governmental agencies if the disclosure is authorized by law, the Department of Family and Protective Services, and any person, agency, or institution having a “legitimate interest” in the matter, if they obtain permission from the court.

Your juvenile records are sealed automatically at age 18 if …

If you were referred to juvenile court for conduct in need of supervision (or CINS) and never referred for delinquent conduct, your records are sealed when you turn 18, as long as you do not have an adult felony conviction or any pending adult charges.

What if I don’t qualify for automatically sealed juvenile records?

If you were adjudicated for a felony or don’t meet the criteria for automatic sealing, you can apply to the court requesting that your records are sealed. The court could order the records sealed with or without a hearing. The court, in any instance, can’t deny an application for sealing without first hearing an argument. An attorney is advisable during this process. 

To qualify, you must:

  • Be at least age 17, or at least one year since the last court action or discharge from probation
  • Have no adult felony convictions or pending adult charges (other than Class C misdemeanors)
  • Was not transferred by a juvenile court to a criminal court or certified
  • Are not currently required to register as a sex offender and are not currently committed to TJJD
  • Received a determinate sentence adjudication

Why is it important to check if your records are sealed?

Although state law requires Texas juvenile records to be automatically sealed for qualifying persons, errors and delays occur. Some counties have a backlog of cases and are slow to process sealing. Also, cases that included felony adjudication are not eligible for automatic sealing, and an application to request a  seal is required. It is wise to have your attorney request that the juvenile court seals the records as soon as you are eligible.

Can Texas juvenile records be unsealed?

Yes, if you request that a court unseal your records or if a prosecutor asks for access for limited purposes, including a future prosecution for a capital offense or a future prosecution for an offense for which punishment can be enhanced based on your juvenile record.

When are Texas juvenile records destroyed?

The court can destroy juvenile records if no probable cause is found at intake or by a prosecutor. Destruction of juvenile records may be authorized by the juvenile board, the head of any law enforcement agency in the possession of records, or the prosecutor if:

  • At age 18, if the conduct in need of supervision was the most serious referral, whether or not the case was adjudicated
  • At age 21, if the most serious conduct adjudicated was a misdemeanor, or if a felony or misdemeanor referral, not adjudicated 
  • At age 31 if adjudicated for a felony

The above stipulations apply to all juvenile records, no matter when they were created but does not include records kept by the Texas Juvenile Justice Department for statistical purposes. Destruction of records also does not apply to juvenile court records or juvenile clerk’s records.

Is it possible for Texas juvenile records to be sealed automatically and immediately?

Texas Code section 58.2551 requires that juvenile records are automatically and immediately sealed upon a finding of not true. But for this to happen, it’s imperative to have an experienced juvenile attorney by your child’s side to have the best possible opportunity to receive a “not true” finding. In juvenile court, a not-true finding is comparable to a not-guilty verdict for adults.

Are juvenile records automatically sealed in Texas?

The Texas Juvenile Justice Code Section 58.253 provides that the state automatically seals juvenile records if the person meets the following requirements:

  • The person is at least age 19
  • No adjudication occurred after any misdemeanor or felony referrals
  • If adjudicated for a misdemeanor offense only
  • No pending delinquent conduct matter
  • Has not been certified to stand trial as an adult
  • No convictions of a misdemeanor or felony punishable by confinement in jail as an adult
  • No pending charges as an adult for a misdemeanor or felony offense punishable by confinement in jail

What are the requirements to apply to seal juvenile records in Texas?

The Texas Juvenile Justice Code Section 58.256 allows the juvenile court to order records sealing for anyone meeting the following criteria:

  • The person is age 17, or if younger than 17, at least one year has passed since the date of final discharge from the Juvenile Probation Department, and is accompanied by a parent or guardian at the hearing
  • No delinquent conduct matters pending with any Juvenile Probation Department or Juvenile Court
  • Has not been certified to stand trial as an adult
  • Has no felony convictions as an adult
  • Has no pending charges as an adult for misdemeanor or felony offenses punishable by confinement in jail.
  • Did not receive a determinate sentence adjudication
  • Is not currently required to register as a sex offender
  • Was not committed to the Texas Juvenile Justice Department unti the person has been discharged from that commitment

How do you apply to seal juvenile records in Texas?

An experienced juvenile attorney at Varghese Summersett will complete and file the correct paperwork. The application must be filed with the Tarrant County District Clerk’s office at 2701 Kimbo Road in Fort Worth.

Are gang or sex offender records confidential for Texas juveniles?

The Texas Department of Public Safety holds gang information, and these records are limited to criminal justice officials for law enforcement purposes.

Juvenile sex offender records are exempt from the restricted access system. But if your court-appointed obligation to register as a sex offender expires, you might have the right to have your records sealed.

Texas DPS Reviews Juvenile Records for Sealing

Since 2015, Texas DPS has overseen which juvenile records are eligible for sealing. In some cases, a prosecutor may object to the sealing and request a hearing. In that event, a notice would be sent to the owner of the sealed record, who would have the chance to make a case for sealing their records. DPS can share Texas juvenile records with the following:

  • Military, with permission of juvenile
  • Criminal justice agency
  • Noncriminal justice agency if authorized by federal law or executive order to receive
  • Juvenile justice agency
  • Texas Juvenile Justice Department
  • Office of Independent Ombudsman
  • Court exercising jurisdiction over a juvenile
  • Department of Family and Protective Services for background checks for placement Purposes

Need a Texas juvenile record sealed or destroyed? Call us.

If your child qualifies, having a Texas juvenile record sealed or destroyed might be necessary. This process requires a hearing, and an experienced attorney will help you get the desired outcome. Call Lisa Herrick for a free consultation at 817-203-2220.

Varghese Summersett

What is juvenile certification in Texas?

In Texas, juveniles can be certified to stand trial as an adult if they are accused of serious crimes, such as murder or aggravated sexual assault. The decision to seek certification is up to the juvenile prosecutor handling the case and must be granted by a juvenile judge after a hearing.

If the judge agrees to certify a juvenile to stand trial as an adult, the case will be transferred to adult criminal court. Once a case has been transferred, the minor will be tried as an adult and subject to the adult criminal justice process and the penalties associated with that offense. 

However, there are a few caveats regarding certified juveniles. In the adult system, an adult convicted of capital murder faces either the death penalty or life in prison without the possibility of parole. By law, certified juveniles convicted of capital murder face an automatic life sentence with the possibility of parole.

Likewise, certified juveniles convicted of certain sex crimes are not required to register as sex offenders for life. The maximum sex offender registration requirement for certified juveniles is 10 years.

Juvenile Defense Lawyer Fort Worth | Board Certified Juvenile Defense

Juvenile Certification in Tarrant County and the Surrounding Areas

The juvenile justice system is designed to handle minors who get in trouble with the law, focusing on rehabilitation rather than punishment. However, in rare instances, prosecutors will seek to transfer juveniles to adult criminal court, especially if the alleged offense is violent or high-profile. This process is known as juvenile certification and is not taken lightly.

This article will discuss the basics of juvenile certification and when a minor can be tried as an adult in Texas. We will also explain what happens to teens who are certified to stand trial as an adult in Tarrant County. 

Who qualifies for juvenile certification if you are under age 18?

Under Section 54.02 (a) of the Texas Family Code, to be eligible for juvenile certification, the offender must be:

  • at least 14 years old and under age 17 at the time he or she is alleged to have committed the offense and charged with capital murder, an aggravated controlled substance felony, or a first-degree felony; or
  • at least 15 years old and under age 17 at the time he or she is alleged to have committed the offense and charged with a state jail felony or a second or third-degree felony; and
  • the defendant has not been adjudicated.

Who qualifies for juvenile certification if you are age 18 or over?

Under Section 54.02 (j) of the Texas Family Code, to be eligible for juvenile certification if you are 18 years old or older, the offender must have been:

  • at least 1o years old and under age 17 at the time he or she is alleged to have committed capital murder or murder; or
  • at least 14 years old and under age 17 at the time he or she is alleged to have  committed an aggravated controlled substance felony or a first-degree felony other than murder; or
  • at least 15 years old and under age 17 at the time he or she is alleged to have committed a state jail felony or a second or third-degree felony; and
  • the defendant has not been adjudicated.

Finally, for someone 18 or older to be certified, the judge must find probable cause to proceed and find by a preponderance of the evidence:

  • It was not practical to proceed in juvenile court before the 18th birthday of the accused – for reason’s beyond the state’s control; or
  • The state exercised due diligence before the accused’s 18th birthday but could not proceed because new evidence was found after their 18th birthday; the accused could not be found; or there was a previous transfer order that was reversed or set aside.

Who decides if a juvenile should stand trial as an adult?

The District Attorney’s Office decides whether to seek juvenile certification. If prosecutors decide to seek certification, they will file a petition with the juvenile court seeking a “waiver of jurisdiction.”

In other words, the prosecution is asking the juvenile court to waive its jurisdiction over the juvenile and transfer the case to an adult criminal district court. The juvenile court then holds a transfer hearing to decide whether or not to certify the juvenile to stand trial as an adult.

What happens before the transfer hearing?

Before the certification (or transfer) hearing, the court will order a complete diagnostic study, social evaluation, and investigation of the juvenile, including his or her circumstances and the circumstances of the offense.

At least five days before the hearing, the court will provide the prosecution and defense access to all written material that the court will consider in making its decision.

What happens at the transfer hearing?

All juvenile certification hearings are presided over and decided by a juvenile court judge, not an associate judge or magistrate. Likewise, a jury does not decide juvenile certifications.

As with other criminal court proceedings, there will be a prosecutor and a defense attorney in the courtroom  – both of whom will present evidence and make arguments. The prosecutor will work to have the juvenile transferred to the adult system, while the defense will fight to keep the teen in the juvenile system.

The juvenile defendant will also be present in the courtroom, along with his or her parent or guardian. If a parent or guardian cannot be there, the court will appoint a guardian for the juvenile.

How does the judge determine whether a juvenile under 18 should be certified to stand trial as an adult?

When considering certification, the juvenile court judge must first determine that there is probable cause that the youth committed the offense. The court must also believe that because of the seriousness of the alleged offense or the background of the child, the welfare of the community requires proceedings in adult criminal court.

In addition to the above criteria, the juvenile court must consider four other factors:

  1.  whether the offense was against a person or property (crimes against people are generally more serious);
  2. the sophistication and maturity of the child;
  3. the record of the child in the juvenile justice system; and
  4. public protection and the child’s likelihood of rehabilitation within the juvenile system.

It’s important to point out that the factors in this list are not criteria that have to be met – but merely factors that the judge has to consider. In other words, the judge has to consider these things, but he or she can base their decision on something else entirely.  It is purely within the judge’s discretion to transfer the child or not.

At the end of the hearing and after considering all of the evidence and weighing all factors, the judge will decide whether to certify the juvenile to stand trial as an adult. If the certifies the youth, the case will be transferred to the adult system for prosecution. If the judge denies the prosecution’s request for certification, the juvenile will remain in the juvenile system.

What are some possible defenses to certification?

An experienced juvenile defense attorney will do everything possible to try and convince the judge that the teen would be better served in the juvenile justice system and that the case should not be transferred to adult court.  Some common defenses include:

  • Highlighting the positive aspects of the child and his or her background;
  • Presenting mitigating evidence, such as disabilities or mental health issues;
  • Pointing out the child’s lack of previous criminal record;
  • Showing progress in the juvenile system;
  • Demonstrating the child is amenable to rehabilitation;
  • Showing a strong support system;
  • Arguing that the child is too unsophisticated for the adult criminal justice system;

These are just some possible defenses that could be implemented to try and convince the judge to deny certification. If you or your child is facing juvenile certification proceedings in Texas, it is crucial that you have an experienced juvenile defense attorney on your side to fight for the best possible outcome.

What happens if a juvenile is certified to stand trial as an adult?

If the juvenile court judge decides to certify a child to stand trial as an adult, he or she will be transferred out of the juvenile system and into the adult criminal justice system. The juvenile will then go through regular adult court proceedings and, if convicted, will be subject to adult sentencing.

What happens if a juvenile is certified to stand trial as an adult in Tarrant County?

If a juvenile is certified to stand trial as an adult in Tarrant County, his or her case will be transferred out of the juvenile system to the adult criminal justice system. The case will be assigned to a District Court in the Tim Curry Criminal Justice Center in downtown Fort Worth, where it will go through the same process as all adult criminal court cases.

Will the juvenile be housed with adult inmates in Tarrant County Jail?

The juvenile court judge who certified the youth may order the child to be held in the adult jail, but he or she won’t be housed with adults until age 17. Or, the judge may order the child to remain in juvenile detention, housed with the rest of the juveniles, until age 17.

What if a person is an adult by the time they are arrested for a juvenile offense?

In some cases, a person is arrested as an adult for an alleged offense committed years ago as a juvenile. In these cases, the adult – meaning over age 18 – will be certified to stand trial as an adult after a routine transfer hearing. Adults are not prosecuted in the juvenile system.

What’s the difference between adult prisons and juvenile prisons in Texas?

In Texas, adults sentenced to prison are remanded to the Texas Department of Criminal Justice (TDCJ). Juveniles are committed to the Texas Juvenile Justice Department (TJJD), the state’s juvenile penal system.

TDCJ is responsible for housing adult offenders while serving sentences ranging from a few months to life in prison. TJJD, on the other hand, is responsible for providing rehabilitation and treatment services to juvenile offenders to help them get their lives back on track. Teens still behind bars after their 19th birthday can be transferred to adult prison.

Facing juvenile certification in Tarrant County? Contact us.

Lisa Herrick

Learn about Board Certified Juvenile Specialist Lisa Herrick

If your child has been accused of a serious felony in Fort Worth or the surrounding area, it’s imperative that you contact an experienced juvenile defense attorney. Attorney Lisa Herrick is a partner at Varghese Summersett and board certified in juvenile law – a designation held by only three attorneys in Tarrant County.

Lisa specializes in juvenile law and has handled every type of juvenile criminal case, including capital murder, murder, sexual assault, and other violent felonies. She is the juvenile attorney who parents and families turn to when a child faces the biggest problem of their life.

Call 817-203-2220 today to schedule a free consultation.

Varghese Summersett

Does my child need a juvenile attorney in Texas?

If your child has been taken into custody and is charged with an offense, he or she must be represented by a juvenile attorney. That is the law. Whether you hire the attorney – or one is appointed by the court – will depend on your ability to pay for legal representation.

In this blog post, we will discuss your child’s right to a juvenile attorney in Texas and answer some frequently asked questions by parents.

Can I represent my child in juvenile court in Texas?

No, a parent cannot represent their child in juvenile court in Texas, nor can the child represent themself. The youth must be represented by a juvenile attorney who is licensed to practice law in Texas and qualified to handle juvenile cases.

How quickly will my child need a juvenile attorney?

Within two working days after a child is taken into custody, a detention hearing will be held before a judge to determine whether the youth will be released to a parent or guardian while the case is pending or if they will be detained – that is, remain in the juvenile detention center. Under Section 54.01 of the Juvenile Justice Code, the court must notify the child and his or her parents of the child’s rights to legal counsel before that first detention hearing.

Ideally, your child needs an attorney before the detention hearing – so within two working days after being taken into custody.

What if there wasn’t enough time to get an attorney before the detention hearing?

Because of the strict mandate that requires an initial detention hearing within two working days, occasionally, a juvenile will not be represented by an attorney during the detention hearing. In those instances – if the child is detained – the judge will immediately appoint counsel or order the parents to hire an attorney. Once an attorney is in place, the attorney can request another detention hearing.

If the juvenile was released by intake or didn’t have a detention hearing, the juvenile is required to be represented by an attorney within five working days after prosecutors file a petition against the youth – that is, charge the youth with an offense. If you cannot afford an attorney, the court will appoint one for your child.

Under Section 51.101 of the Juvenile Justice Code, if an attorney is appointed at the initial detention hearing and the child is detained, the attorney must continue to represent the child until the case is resolved, the family retains an attorney, or a new attorney is appointed by the juvenile court judge.

What if I can’t afford a juvenile attorney?

If you can’t afford an attorney, the court will appoint one for your child prior to the initial detention hearing – or within five working days after prosecutors file a petition, or charge, the youth. To determine if you are indigent, the judge will turn to criteria established by the juvenile board of the county in which the juvenile court is located.

Lisa Herrick Juvenile Defense Lawyer

Meet our Juvenile Law Specialist Lisa Herrick

In Tarrant County, for example, a youth is considered indigent if:

  • The income of the person responsible for the juvenile is less than 125 percent of the Federal Poverty Guidelines;
  • The liabilities of the responsible person for the juvenile are more than his or her assets;
  • The responsible person is unable to afford a juvenile attorney qualified to represent the youth for the office which is charged;

To determine whether the juvenile is indigent, the juvenile court judge may question the parents regarding their ability to afford an attorney or rely on statements made to a probation or intake officer regarding their financial situation. In some cases, the judge will require the parents to reimburse the county for certain legal expenses.

Can I select the court-appointed juvenile attorney?

No. If the court is appointing a lawyer for your child, you cannot choose. The judge will select an attorney from a list of qualified attorneys who are eligible for appointment to represent children in juvenile proceedings.

What if I don’t like my child’s court-appointed attorney?

If you don’t like the juvenile attorney appointed to represent your child, you can hire a different juvenile attorney of your choice to replace the court-appointed juvenile attorney. You can also request that the court appoint a different juvenile attorney, but be prepared to explain to the juvenile judge why you are requesting a new juvenile attorney.

The juvenile court judge may or may not appoint a new juvenile attorney, depending on your reasons for requesting a different juvenile attorney and whether there is good cause to do so.

Juvenile Defense Lawyer Fort Worth | Board Certified Juvenile Defense

Why is it important to have an experienced juvenile attorney?

Juvenile law is a very specialized area that combines civil and criminal rules and procedures. That’s why it’s extremely important to hire an experienced lawyer who practices in juvenile court every day and understands the juvenile system.

At Varghese Summersett, we are fortunate to have attorney Lisa Herrick on our team. Lisa is Board Certified in Juvenile Law, which means she is an expert in juvenile law. In fact, she is one of only three attorneys in Tarrant County who hold this designation.

Lisa has handled hundreds of juvenile cases and is well-versed in all aspects of juvenile law, from intake through adjudication. She knows the juvenile judges, prosecutors, and probation officers in Tarrant County and is respected by all for her knowledge and expertise.

When it comes to your child’s future, you can’t afford to take chances. If your child has been accused of an offense in Tarrant County or the surrounding area, call Lisa at 817-203-2220 for a free consultation.

Varghese Summersett

Are Texas juvenile hearings open to the public?

It depends on the age of the child. If the child is 14 or older, Texas juvenile hearings are generally open to the public.

Under Sec. 54.08 of the Texas Family code, however, hearings are closed to the public if the child is under the age of 14 at the time of the hearing.

A judge can open the hearing for a child under 14 to the public if they find that it’s in the best interest of the child or if they deem the public would be better served by opening the hearing.

If your child has been detained by juvenile services, they need experienced representation as soon as possible. Varghese Summersett’s Lisa Herrick is one of only three lawyers in Tarrant County Board Certified in Juvenile Law.

If a certified juvenile stands trial as an adult, are the hearings open to the public? 

Yes. If a child is certified to stand trial as an adult, they’ll be moved to Texas criminal court. Therefore, the court proceedings would be open to the public. 

Can a judge close Texas juvenile hearings from the public?

Yes. A judge may close Texas juvenile hearings from the public if “good cause to exclude the public.”  Texas law doesn’t require juvenile judges to provide a written order or statement explaining their reasoning if they close a hearing.

If a juvenile is certified to stand trial as an adult, can a judge close the proceedings?  

Yes.  However, according to U.S. Supreme Court precedent, a judge must hold a hearing to explain their reasoning for closing a criminal proceeding.

During the hearing, the judge must allow the media and others to argue against closing a hearing. The judge must ensure that closing the hearing won’t infringe on First Amendment rights or that a criminal defendant’s right to a fair trial is in question. The judge is supposed to consider alternatives to closing the courtroom. A judge could question prospective or seated jurors on whether they’ve been exposed to the prejudicial information at hand, or the judge could sequester the jury. Other alternatives for the judge include changing the venue or using jurors from another area. They could also postpone the trial to let any issues at the moment diminish.

If a judge determines no alternatives are available, they must also determine a closed hearing is in the best interest of the defendant. The closure order must be tailored to protect the defendant’s rights without unnecessarily restricting public access.

Who is required at Tarrant County juvenile hearings?

Each juvenile hearing in Tarrant County requires a judge, an attorney representing the state, and the child, along with their attorney and a parent or guardian. A representative of the juvenile probation department is also required during each hearing.

If a Texas juvenile hearing is closed to the public, are the victims and their families allowed to attend?

Yes, in a closed juvenile hearing, victims and their families are allowed to attend hearings unless they are witnesses in the case, and the testimony would be materially affected.

What happens if a judge improperly closes a Texas juvenile hearing?

In 2014, a Tarrant County judge closed several hearings involving a minor who pleaded guilty to capital murder.

District Judge Jean Boyd defended one of the closures at the time by saying from the bench “that this media coverage is not conducive to the rehabilitation of the juveniles.”

Local media objected to the closure and petitioned that Boyd release transcripts of the proceedings. 

She responded to the petition with an explanation of her reasoning. One hearing, she said, was closed out of concern that pretrial publicity would affect seating an impartial jury. Another hearing was closed because of the sexual nature of the crime, although prosecutors had agreed to omit those details during the hearing. She also voiced concern with the media’s decision to publish the name and photograph of a juvenile in an unrelated high-profile case in her court.

Later that year, the Second Court of Appeals in Fort Worth reversed Boyd’s decision. It ruled she abused her discretion to close the hearings in the case that sentenced the teen to 26 years behind bars.

Does your child need help with a juvenile hearing? Call us.

If your child has been detained by Tarrant County Juvenile Services, make sure they’re represented by an experienced juvenile attorney. Varghese Summersett’s Lisa Herrick is one of three attorneys Board Certified in Juvenile Law in Tarrant County. For a free consultation, call 817-203-2220.

Varghese Summersett

Tarrant County’s Most Common Juvenile Crimes

In 2021, juvenile offenses in Tarrant County increased slightly from the previous year, but overall the number of offenses referred by police agencies to the juvenile department has decreased over the past five years.  Tarrant County Juvenile Services reported 2,534 formal referrals in 2021.

In this post, Varghese Summersett juvenile defense attorney Lisa Herrick discusses the top five juvenile crimes in Tarrant County.

Top 5 Juvenile Crimes in Tarrant County

More than 2,500 juvenile case referrals were made to Tarrant County Juvenile Services in 2021. That’s down 27 percent from five years before. Here’s a look at the top five juvenile crimes in Tarrant County:

5. Felony Drug Offenses

Felony drug offenses have steadily increased in Tarrant County since 2017. There were 104 felony drug offenses referred to juvenile authorities by police agencies in 2021. That’s nearly double from 2017 but 103 fewer than reported in 2019.

The Texas Health and Safety Code makes the manufacture, delivery, or possession with the intent to deliver Penalty Group 1 controlled substances such as cocaine, opiates, opioids, heroin, or methamphetamine felony drug offenses. It also includes drugs classified as Penalty Group 2, such as THC oil, wax, dabs, ecstasy, and Adderall. Penalty Group 3 contains depressants and stimulants. Penalty Group 4 contains prescription medications that are subject to abuse.

“Nine times out of 10, these cases are related to a vape pen containing THC,” Lisa said.

4. Sexual Assault

Referrals nearly doubled to 124 in 2021, which is most likely because most schools were closed for much of 2020 due to the COVID-19 pandemic. Without schools, many victims were likely left without a person or counselor to report allegations of sexual assault.

Texas Penal Code Section 22.011 defines sexual assault as a person who:

  • Intentionally or knowingly causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent; or
  • Causes the penetration of the mouth of another person by the sexual organ of the actor without that person’s consent; or
  • 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.

There are also a number of offenses that could be filed as sexual abuse of a child, although there are affirmative defenses to certain offenses based on the Romeo-Juliet statute in Texas.

 “That highlights how important it is for kids to go to school and have adults they trust to report abuse to,” Lisa said.

3. Misdemeanor Theft

Although misdemeanor thefts have been declining since 2017, it’s still one of the most common offenses among minors. Misdemeanor theft, in most cases, includes theft of anything less than $2,500. This offense differs from robbery, which involves taking, or attempting to take, something from someone’s possession.

Texas Penal Code defines misdemeanor theft as the unlawful appropriation of property with the intent to deprive the owner.

“These are non-violent actions that didn’t involve harm or a threat to another person,” Lisa said. “For example, shoplifting clothes or electronics.”

2. Aggravated Assault

This offense has stayed steady in Tarrant County over the past five years, even while juvenile murder charges have skyrocketed. These assaults often include the use of a gun. Aggravated assault can be elevated to a murder charge if the victim eventually dies from the injuries. 

Aggravated assault includes causing serious bodily injury. Serious bodily injury means the loss of the use of a body part or permanent disfigurement. You could be charged for this offense if you cause another person injury while using what could be considered a deadly weapon. In this situation, a deadly weapon could be a person’s fist, a knife, a handgun, or a bat. A threat made to a person while holding a deadly weapon could also be considered aggravated assault under Texas law.

“Interestingly, while the rate of murder referrals has increased more than threefold in the last five years, the average number of aggravated assaults has stayed consistent,” Lisa said.

1. Misdemeanor Assault

Misdemeanor assault was the most common juvenile offense in 2021, with 638 referrals to Tarrant County Juvenile Services.

Varghese Summersett’s juvenile attorney Lisa Herrick was not surprised.

Misdemeanor assault has been the most common juvenile case in Tarrant County for years.

The two most common misdemeanor assault charges are assault by contact and assault causing bodily injury. In assault by contact charges, someone only needs to allege that you offensively touched them. Assault causing bodily injury includes the other person alleging they feel pain. The person isn’t required to show any visible evidence of injury.

“Typically, these cases include fights between students at school or between members of the same household. Somebody might have a black eye or a bloody nose, but hospital visits aren’t terribly common,” Herrick said.  

Juvenile Murder Cases Rise in Tarrant County

Murder offenses for Tarrant County juveniles increased by more than 100 percent to 18 in 2021 from five in 2017.

When are Juvenile Cases Referred to the Tarrant County Juvenile System?

A formal referral is when face-to-face contact occurs between the juvenile and the probation department.

Juveniles in Tarrant County are referred to Tarrant County Juvenile Services for alleged delinquent behavior, including both misdemeanor and felony offenses. Another violation that can instigate a referral includes a probation violation.

Juveniles can be referred by a law enforcement agency or probation department.

Two Ways Tarrant County Juvenile Cases are Received by Juvenile Services: 

Formal referrals to Tarrant County Juvenile Services can be received in two ways:

Out-of-custody referrals: The referring agency notifies the Tarrant County Juvenile Services of the offense, and a letter is sent to the juvenile’s residence requesting they appear for intake and processing. When the juvenile appears for intake, the referral becomes formal.

In-custody referrals: The juvenile is physically brought to the Lynn W. Ross Detention Center by a law enforcement agency for processing and temporary detainment.

The Age Breakdown of Tarrant County Juvenile Cases

In 2021, Tarrant County reported 2,534 juvenile referrals, including 73.3% male.

Here’s a look at how the incidents broke down by age:

Rate Age
33% 16
23% 15
18% 14
10% 13
7% 17+
6% 12
2% 11
1% 10

 

Need a Juvenile Attorney? Call Lisa Herrick at Varghese Summersett.

If your child has been detained by Tarrant County Juvenile Services, you need an experienced juvenile defense attorney on their side. Attorney Lisa Herrick is one of only three Board Certified attorneys in Juvenile Law in Tarrant County. She is a specialist in handling the complexities of juvenile and young adult crimes. For a free consultation, call her at 817-203-2220.

Varghese Summersett

What is federal obstruction of justice?

In its most basic definition, obstruction of justice occurs when someone prevents a part of the legal system from proceeding by interfering with government investigations or processes or the people involved, such as investigators, prosecutors, judges, jurors, victims, or witnesses. Federal obstruction of justice covers many potential offenses and is often described as a crime against the justice system itself.

Misleading or lying to investigators is a typical example of federal obstruction of justice. Bribing a government official, destroying evidence, or giving a false alibi to protect a friend or family member are also classic examples of obstruction of justice.

Federal Obstruction Of Justice

Obstruction of justice has been a hot topic in the news for years, with a government official or celebrity being accused seemingly every other month.

This federal offense can be complicated to understand because obstruction of justice covers a wide range of different actions. It’s also a charge that often stems from an investigation for a separate, original crime.

federal obstruction of justice

Remember Martha Stewart going to prison? It was for obstruction of justice – not her original crime – which was insider trading and securities fraud. She served 10 months in prison for lying to investigators, not for financial crimes.

The complexity of this offense illustrates why it’s imperative to hire an experienced federal criminal defense attorney if you or a loved one has been contacted by investigators, whether they’re investigating you or someone you know. 

In this article, we’ll explain what obstruction of justice means, the potential punishment for a conviction, and give examples of real federal obstruction accusations.

What constitutes federal obstruction of justice?

There are 21 specific types of obstruction of justice listed in Title 18, Chapter 73 of the U.S. Code, including:

  • Assault on a process server (1501)
  • Resistance to an extradition agent (1502)
  • Influencing or injuring an officer or juror (1503)
  • Influencing a juror by writing (1504)
  • Obstruction of proceedings before department, agencies and committees (1505)
  • Theft or alteration of record or process (1506)
  • Picketing or parading (1507)
  • Recording, listening to or observing proceeding or grand juries while deliberating or voting (1508)
  • Obstruction of court orders (1509)
  • Obstruction of criminal investigations (1510)
  • Obstruction of state or local law enforcement (1511)
  • Tampering with a witness, victim, or informant (1512)
  • Retaliating against a witness, victim or informant (1513)
  • Civil action to restrain harassment of a victim or witness (1514)
  • Civil action to protect against retaliation in fraud cases (1514A)
  • Definitions for certain provisions (1515)
  • Obstruction of a federal audit (1516)
  • Obstructing examination of a financial institution (1517)
  • Obstruction of criminal investigations of health care crimes (1518)
  • Destruction, alteration or falsification of records in federal investigations and bankruptcy (1519)
  • Destruction of corporate audit records (1520)
  • Retaliating against a federal judge or law enforcement by false claim or slander (1521)

What is the punishment for obstruction?

Because the types of obstruction of justice vary, so does the range in punishment. A federal conviction for obstruction of justice is generally punishable by steep fines and up to five years in federal prison, but there are other punishments on both ends of the range. 

For example, under  18 U.S. Code 1512, a person who attempts to kill someone to keep them from testifying in court faces up to 30 years in federal prison. Likewise, a group that pickets outside a courthouse in an attempt to disrupt a trial is punishable by a fine and not more than a year in federal prison, under 18 U.S. Code 1507.

 To determine the potential punishment range, it’s important to contact an experienced federal attorney.

Can obstruction of justice be prosecuted by state prosecutors?

Yes, Texas has its own version of obstruction of justice, which is called “obstruction or retaliation.”  However, it focuses more on the acts that interfere with local law enforcement. Obstruction or retaliation is generally a third-degree felony punishable by 2 to 10 years in prison and up to a $10,000 fine. Learn more about obstruction and retaliation in Texas. 

What are some real examples of federal obstruction of justice charges?

Over the decades, federal authorities have used obstruction of justice charges to try bring down politicians, public officials, and celebrities. Here’s a look at a few famous defendants who have been charged with this federal offense and why:

  • Richard Nixon, accsued of covering up the Watergate scandal.
  • Bill Clinton, accused of lying under oath to the grand jury about sexual relations with Monica Lewinsky
  • Martha Stewart, accused of hiding evidence from authorities during her insider-trading investigation
  • Barry Bonds, accused of lying to a grand jury about whether his trainer had given him steroids
  • R. Kelly, accused of conspiring to ensure key witnesses would lie about his alleged sexual abuse of girls and refuse to testify.

What should I do if I’ve been accused of federal obstruction of justice?

The federal system is much different than the state system. As a result, it’s imperative to hire a seasoned federal defense attorney who has expensive experience defending federal charges. The government can often overreach with these charges, so it’s important to have someone in your corner who understands each stage of a federal criminal case and how to respond appropriately on your behalf. This is not the time to cut corners or leave anything to chance. 

Charged with federal obstruction of justice? Contact Us.

Obstruction of justice can be an extremely serious federal charge. If you have been accused of federal obstruction of justice, it’s imperative to contact there an experienced federal defense attorney as soon as possible. Our team has extensive knowledge and experience defending federal crimes. Call 817-203-2220 for a free consultation with a federal lawyer in North Texas.

Varghese Summersett

When Can Police Interrogate a Minor?

Have you ever wondered when the police or even CPS can interrogate a minor in Texas? Let’s face it. Kids don’t always make the best choices and, sometimes, they get caught up in bad situations. Maybe they witnessed a crime or are suspected of committing one themselves. So what happens when police want to talk to a minor regarding a crime or criminal investigation? In this blog post, we are going to discuss juvenile rights and what happens (or should happen) when police question a child or take them into custody.

What is a juvenile in Texas?

First, let’s start with the basics. In Texas, a juvenile is defined as a person who is at least 10 years old but not yet 17. Youth between these ages are handled by the juvenile justice system, and there are very specific rules and rights when it comes to interrogations and arrests.

juvenile in Texas

Can police interrogate a minor without parental consent in Texas?

Most people believe police can’t question a child without the consent of his or her parents. This is a misconception. In Texas, police officers are allowed to question a child without parental consent or prior permission as long as the questioning is done in a non-custodial setting. In other words, as long as the child is not in handcuffs, detained, or in custody, police can approach them and question them without parental knowledge.

So, for example, if a police officer shows up outside the youth’s school and wants to talk – and the child willingly answers the officer’s questions – the parents may not even find out about it if their child doesn’t tell them. That’s a scary thought for most parents.

In fact, most conversations with the police take place at school with absolutely no notice to the parents. 

It’s also important to note that, in this type of setting, police also do not have to give the juvenile their Miranda warnings.

Can CPS question a child without parental consent in Texas?

Employees of the Department of Family and Protective Services – often referred to as “CPS” – are routinely given access to students. And yes, they can and will question or interrogate students without a parent’s knowledge.

child interrogationCan my child refuse to answer the officer’s questions?

Yes – and they should. If a youth is approached by a police officer who wants to talk, the child should tell the officer that they want a parent or a lawyer (or both) and then remain silent. At that point, the officer must stop asking questions and allow the child to contact a parent or guardian.

Unfortunately, most children don’t know their rights or are too scared to assert them. This is one of the reasons why it’s so important for parents to educate their kids on what to do if they’re ever approached by police.

What specifically should my child say to stop questioning?

It’s important for your child to be polite and respectful at all times. However, a child should also be firm when asserting their rights. For example, your child can say something like:

  • “I don’t want to talk to you without my parents or a lawyer.”
  • “I want a lawyer.”
  • “I am not going to talk to you.”

Can parents refuse to allow police to speak to their child?

Let’s say a police officer calls you and asks to speak to your child. You can politely decline and assert your child’s right to an attorney. Realistically you can’t prevent them from showing up at school. What you can do is hire an attorney for your child – generally one who is not representing you – and have the attorney make contact with the police department or CPS and say the child is represented and any questions must come through the attorney.

What happens when a child is taken into custody?

When a child is taken into custody, the rules change. In this situation, police are required to “promptly give notice” to the juvenile’s parent or guardian and to tell them why the child has been taken into custody.

The child must be taken to a juvenile processing office – often a room in a police station or sheriff’s office specifically used for temporary juvenile detention. Once here, a parent, guardian, or attorney is allowed, by law, to speak privately with the juvenile for a reasonable period of time. During this interaction, they can advise the child not to voluntarily speak with the officer.

Can a parent be in the room during in-custody police interrogations?

The law does not require a parent, guardian, or attorney to be present when police interrogate a minor in custody. However, if a parent asks to be present, it is in the best interest of the officer to allow it – or expect an aggressive courtroom challenge.

Police Want to Question Your Child? Contact Us.

If the police want to question your child about a criminal matter in Fort Worth or the surrounding area, it’s imperative to contact an experienced juvenile defense attorney right away. It is never a good idea to speak to the police without first consulting with an adept juvenile attorney – regardless of the child’s involvement in the situation.

Juvenile law is a highly-specialized area that requires very specific knowledge and expertise. Varghese Summersett is one of the few law firms in North Texas with a Board Certified Juvenile lawyer on its team. Attorney Lisa Herrick has vast experience handling juvenile cases and will protect your child’s rights every step of the way. Call 817-203-2220 today for a free consultation.

Varghese Summersett

When Can Police Interrogate a Minor?

Have you ever wondered when the police or even CPS can interrogate a minor in Texas? Let’s face it. Kids don’t always make the best choices and, sometimes, they get caught up in bad situations. Maybe they witnessed a crime or are suspected of committing one themselves. So what happens when police want to talk to a minor regarding a crime or criminal investigation? In this blog post, we are going to discuss juvenile rights and what happens (or should happen) when police question a child or take them into custody.

What is a juvenile in Texas?

First, let’s start with the basics. In Texas, a juvenile is defined as a person who is at least 10 years old but not yet 17. Youth between these ages are handled by the juvenile justice system, and there are very specific rules and rights when it comes to interrogations and arrests.

juvenile in Texas

Can police interrogate a minor without parental consent in Texas?

Most people believe police can’t question a child without the consent of his or her parents. This is a misconception. In Texas, police officers are allowed to question a child without parental consent or prior permission as long as the questioning is done in a non-custodial setting. In other words, as long as the child is not in handcuffs, detained, or in custody, police can approach them and question them without parental knowledge.

So, for example, if a police officer shows up outside the youth’s school and wants to talk – and the child willingly answers the officer’s questions – the parents may not even find out about it if their child doesn’t tell them. That’s a scary thought for most parents.

In fact, most conversations with the police take place at school with absolutely no notice to the parents. 

It’s also important to note that, in this type of setting, police also do not have to give the juvenile their Miranda warnings.

Can CPS question a child without parental consent in Texas?

Employees of the Department of Family and Protective Services – often referred to as “CPS” are routinely given access to students – and yes, they do question or interrogate students without a parent’s knowledge.

child interrogationCan my child refuse to answer the officer’s questions?

Yes – and they should. If a youth is approached by a police officer who wants to talk, the child should tell the officer that they want a parent or a lawyer (or both) and then remain silent. At that point, the officer must stop asking questions and allow the child to contact a parent or guardian.

Unfortunately, most children don’t know their rights or are too scared to assert them. This is one of the reasons why it’s so important for parents to educate their kids on what to do if they’re ever approached by police.

What specifically should my child say to stop questioning?

It’s important for your child to be polite and respectful at all times. However, a child should also be firm when asserting their rights. For example, your child can say something like:

  • “I don’t want to talk to you without my parents or a lawyer.”
  • “I want a lawyer.”
  • “I am not going to talk to you.”

Can parents refuse to allow police to speak to their child?

Let’s say a police officer calls you and asks to speak to your child. You can politely decline and assert your child’s right to an attorney. Realistically you can’t prevent them from showing up at school. What you can do is hire an attorney for your child – generally one who is not representing you – and have the attorney make contact with the police department or CPS and say the child is represented and any questions must come through the attorney.

What happens when a child is taken into custody?

When a child is taken into custody, the rules change. In this situation, police are required to “promptly give notice” to the juvenile’s parent or guardian and to tell them why the child has been taken into custody.

The child must be taken to a juvenile processing office – often a room in a police station or sheriff’s office specifically used for temporary juvenile detention. Once here, a parent, guardian, or attorney is allowed, by law, to speak privately with the juvenile for a reasonable period of time. During this interaction, they can advise the child not to voluntarily speak with the officer.

Can a parent be in the room during in-custody police interrogations?

The law does not require a parent, guardian, or attorney to be present when police question a child who is in custody. However, if a parent asks to be present, it is in the best interest of the officer to allow it – or expect an aggressive courtroom challenge.

Police Want to Question Your Child? Contact Us.

If the police want to question your child about a criminal matter in Fort Worth or the surrounding area, it’s imperative to contact an experienced juvenile defense attorney right away. It is never a good idea to speak to the police without first consulting with an adept juvenile attorney – regardless of the child’s involvement in the situation.

Juvenile law is a highly-specialized area that requires very specific knowledge and expertise. Varghese Summersett is one of the few law firms in North Texas with a Board Certified Juvenile lawyer on its team. Attorney Lisa Herrick has vast experience handling juvenile cases and will protect your child’s rights every step of the way. Call 817-203-2220 today for a free consultation.

Varghese Summersett

It is not uncommon for a CPS investigation to occur at the same time a criminal investigation is taking place in Texas. This is especially true in cases involving allegations of child physical or sexual abuse or neglect.

In Texas, CPS is required, by law, to refer all reports of child abuse or neglect to the local police agency, which will then decide whether or not to also initiate a criminal investigation. Likewise, police are required to accompany CPS investigators responding to emergency reports of child abuse or neglect. So, police and CPS often work together.

While the criminal defense attorneys at Varghese Summersett are not dedicated CPS attorneys, we routinely advise clients on how to handle CPS inquiries from a criminal perspective. (And only a criminal perspective, so if you’re looking for an attorney to defend you when you don’t have a criminal investigation or case pending, look for a “CPS attorney” specifically.)

In this article, we will explain what happens during a potential CPS criminal investigation, answer some frequently asked questions, and explain your rights.

If you or a loved one is contacted by CPS and believe you are facing criminal charges, it is imperative to contact an experienced criminal defense attorney immediately.

What is CPS?

The Texas Department of Family and Protective Services (DFPS) is the state agency tasked with protecting some of the state’s most vulnerable residents, including children, the elderly, and disabled individuals. Under the DFPS umbrella is Child Protective Services (CPS), which investigates all reports of child physical and sexual abuse and neglect by parents, guardians, or other family or household members.

CPS investigators are not law enforcement officers, but they have the authority to interview families, children, witnesses, and the alleged perpetrator, as well as to access medical and school records. They can also request random drug screens and conduct home visits.

After completing their investigation, CPS will conduct a risk assessment and make a finding, or ruling, to determine whether there is enough evidence to substantiate the claim of abuse or neglect. If so, CPS will take action to protect the child, which may include:

  • offering services to address the problem – i.e. parenting classes, food banks, etc.;
  • implementing a safety plan that will allow the child to continue to live in the home as long as conditions are met and followed; or
  • taking court action to remove the child from the home.

What specific findings can CPS make?

At the conclusion of a CPS investigation, the caseworker must issue a finding. Here are the possible outcomes:

  1. Reason to Believe: If a CPS investigator makes a “reason to believe” finding, he or she determined that the abuse or neglect occurred. If this finding is made, there is a strong possibility that law enforcement will also be involved.
  2. Ruled Out: If a CPS investigator makes a “ruled out” finding, he or she does not believe that abuse or neglect occurred.
  3. Unable to Complete: “Unable to complete” is when a report or referral is made to CPS, but the agency couldn’t complete the investigation. This usually occurs when CPS can’t locate the family or the family was uncooperative.
  4. Unable to Determine: This finding means CPS cannot make a decision. This is rare.
  5. Administrative Closure: This finding means CPS closed the case for some reason other than those outlined above.

What happens if CPS thinks a crime has been committed?

If CPS believes a crime has been committed, they will immediately notify law enforcement, which will launch an independent investigation. This criminal investigation will then run concurrently with the CPS investigation. Depending on the severity of the allegations, this could result in an arrest and charges being filed against the alleged abuser.

If you are facing a CPS criminal investigation, it is important to have an experienced attorney advise you of your rights and help you navigate the complex legal system.

What is the difference between a CPS investigation and a criminal investigation?

While CPS and law enforcement share the common goal of protecting children, their investigations are quite different. A CPS investigation determines whether a child is safe in his or her home or if the child should be removed. A criminal investigation determines whether a crime has occurred and if someone should be criminally prosecuted.

A CPS investigation is conducted by an investigator or caseworker with Child Protective Services. It’s important to understand that CPS is driven by a “preponderance of evidence” standard. This is a lower standard than what law enforcement must meet. All that is required is that, when all the evidence is weighed, it is more likely than not abuse or neglect occurred.

As a result, almost every CPS investigation that is running concurrent to a criminal investigation results in a “reason to believe” finding. Again, this means CPS believes it is more likely than not that abuse occurred. From CPS perspective, the case agent would almost always rather find a “reason to believe” than risk sending a child back into a situation where they could be harmed.

A criminal investigation, on the other hand, is conducted by law enforcement to determine whether there is enough evidence to arrest and charge an individual with a crime. In order for charges to be filed, law enforcement must have probable cause to believe a crime was committed. This is a much higher standard than a “preponderance of evidence.”

As a result, there are many CPS investigations where neglect is found by CPS and the family is offered services to address the problem or a child is removed from a home, but no charges are filed. In order for charges to be filed, law enforcement must believe they can prove a crime occurred beyond a reasonable doubt. This is a very high standard, and one that can be difficult to meet.

What is an administrative review of a CPS investigation?

At the conclusion of a CPS investigation, the target of inquiry will receive a decision letter from CPS. If the agency made a “reason to believe” finding, the alleged perpetrator has the right, under Section 261.309 of the Texas Family Code, to request an Administrative Review of Investigation Findings (ARIF).

The ARIF gives the alleged perpetrator the opportunity to challenge CPS findings. This is an informal process; it does not involve a trial or include any testimony. However, the requestor is required to say why they are disputing the matter – statements that are often used by detectives and law enforcement in a criminal investigation.

These reviews are not evidentiary – in other words, it’s not someone looking to see if the case is solid or not. It is just an internal review to see if the investigator followed the normal procedure and checked all the standard boxes.

Additionally, if the alleged perpetrator has a concurrent criminal case, the prosecutor has the ability to halt the review until the case is over. Likewise, CPS can postpone the review on its own based on the fact that there is an ongoing criminal investigation.

What are my rights if I am the subject of a CPS criminal investigation?

If you or a loved one is the subject of a CPS criminal investigation, it’s important to understand your rights. Here’s an overview:

  • Because a CPS investigation can lead to criminal charges, you have the right to have a lawyer to intervene on your behalf and be present during home visits and legal proceedings;
  • You have the right to remain silent. You can invoke your fifth amendment right to remain silent during a CPS and/or criminal investigation;
  • You can refuse to allow CPS or police in your house – unless they have a warrant or the investigator believes a child is in imminent danger.

Subject of a criminal investigation? Contact us.

If you or a loved one is the subject of a criminal investigation in Fort Worth or the surrounding area, contact us today to speak with an experienced attorney. We can help you navigate the process and ensure your rights are protected every step of the way. Having an attorney can make all the difference in the outcome of your case. Call 817-203-2220 for a free consultation.