The Newsletter of David Frank
Results from the 81st Legislative Session
As a courtesy from the Law Office of David Frank
Every two years, the Texas Legislature passes new bills, amends existing legislation, and repeals old statutes. To protect the rights of our clients, my office has prepared this summary of many important legislative changes in the area of Texas Criminal Law. This summary does not contain every legislative change, nor does it contain the exact language of each new statute. Instead, it attempts to provide you with some useful information that may affect you or someone you know.
Governor Rick Perry vetoed a law that would have eliminated the waiting period to seek an expunction. An expunction legally allows you to deny ever having been arrested. An order of expunction requires all state agencies to remove and destroy any record of the arrest. Among other things, a criminal arrest record can cause employment problems, an inability to find a place to live, and make getting a loan more difficult.
An expunction gives you the legal right to deny the arrest on job applications, legal documents, and even swear under oath that you have never been arrested. Getting and keeping a job these days is challenging. Going to a job interview with an arrest on your record can make you feel nervous. You can do something about all that by seeking an expunction of your dismissed criminal cases. Here is some good news: The new law waives the expunction fees for acquittals. If you were found Not Guilty of a felony or misdemeanor there is no filing fee as long as you file your petition within 30 days.
SEAL YOUR DEFERRED ADJUDICATION
Under the right circumstances, after you complete your deferred adjudication probation you can ask the court for an order of non-disclosure. The order allows you to legally deny the occurrence of the arrest and prosecution. The arrest records are sealed and you need not disclose your arrest record to prospective employers, landlords, or anyone else that may ask about the arrest record.
You can request the non-disclosure order immediately after discharging from most misdemeanor deferred adjudications. On felony offenses, the order can be requested 5 years after discharge. You are not eligible if you have a conviction for any other offenses after the discharge of the case.
Many job applications and licensing applications ask whether or not you have been convicted of a crime. The Legislature just passed House Bill 2808 which prohibits a licensing authority from considering a person to have been convicted of an offense if the person successfully completed deferred adjudication. However, this provision does not apply if the person is an applicant for or the holder of a license that authorizes the person to provide law enforcement or public heath, education, or safety services.
DEFERRALS FOR VETERANS
We will have to keep an eye on this one: Senate Bill 1940 provides the commissioners court the authority to establish a veterans deferred prosecution program whereby if a veteran successfully completes a veterans court program, the court shall dismiss the case.
CHILD SAFETY SEAT
When traveling in a passenger vehicle, the law used to be that children younger than 5 and less than 36 inches in height had to be in a in a car seat. The law has been amended to require car seats for any child younger than 8, unless the child is taller than four feet, nine inches. Violation of this law will cause the driver to be fined not more than $25 for the first offense and not more than $250 for a second or subsequent offense “Child passenger safety seat system” means an infant or child passenger restraint system that meets the federal standards for crash-tested restraint systems as set by the National Highway Traffic Safety Administration.
TALKING ON CELL PHONES IN A SCHOOL CROSSING ZONE
It is now a Class C misdemeanor to use a wireless communication device within a “school crossing zone” unless the vehicle is stopped or the wireless communication device is used with a hands-free device. The bill also prohibits a school bus operator from using a wireless communication device under any circumstance unless the vehicle is stopped.
“School crossing zone” means a reduced-speed zone designated on a street by a local authority to facilitate safe crossing of the street by children going to or leaving a public or private elementary or secondary school during the time the reduced speed limit applies.
NEW DWI SURCHARGE RELIEF
There is now some relief from DWI Surcharges. A person convicted of Driving While Intoxicated is required to pay a minimum $1,000.00 surcharge each year for 3 years following a conviction. The surcharge is increased to $1,500.00 each year for 3 years if the person is convicted of a second DWI within 36-months of the prior DWI. If a person’s blood, breath, or urine test shows an alcohol concentration of 0.16 or higher, the surcharge is increased to $2,000.00 each year for 3 years.
Failure to pay will cause the person’s driver’s license to be suspended. The new law allows a convicted DWI defendant to request a waiver of surcharges if the defendant can prove that they are unable to pay. This new law may even allow some defendants who are currently paying surcharges to avoid these expensive payments. Additionally, drivers can get points for good driving to reduce penalties.
MANDATORY DWI BLOOD DRAWS
DWI breath and blood tests: Law enforcement is allowed to collect a blood specimen from a driver in any DWI when the driver refuses to submit to a breath or blood alcohol test and the officer obtains a search warrant from a judge to take blood. The police also have the authority to take blood without a warrant if you are arrested for DWI, you refuse to voluntarily take a breath or blood test, you caused an accident, and any individual died or suffered serious bodily injury.
Senate Bill 338 expands that authority by allowing the police to forcibly take blood without a warrant when a person other than the driver suffers bodily injury (which includes just a complaint of pain) as a direct result of an accident and the injured person has been transported to a hospital or medical facility for medical treatment.
Law Enforcement shall also forcibly take blood in a DWI without a search warrant if:
• There is a child under the age of 15 in the car;
• The driver has a prior conviction for DWI with a child passenger;
• The driver has a prior conviction for Intoxication Assault or Intoxication Manslaughter; or
• The driver has two or more prior convictions for DWI, Flying While Intoxicated, Boating While Intoxicated, or Operating an Amusement Ride While Intoxicated.
The new law also requires the Police to obtain a sample of your blood on any felony DWI or Boating While Intoxicated arrest.
Note: Throughout Texas the police have instituted what they call “No Refusal Weekends.” During these weekends, if a driver refuses a breath test, the police will obtain a warrant to take blood without consent. This applies even to first time DWI drivers.
KNOW YOUR RIGHTS: If the police take your breath or blood, the law allows you to request to have a physician or nurse take an additional specimen of your blood for later testing. Make sure the request is made on video or in writing and do not sign anything unless your request and the time it was made is recorded. The police are supposed to allow you a reasonable opportunity to contact such individual for the independent test.
Do not drink and drive. Use good sense when you drink. Each year people die and are seriously injured because of drunk drivers. Remember, DWI is expensive to defend.
KNOW YOUR RIGHTS. YOU HAVE THE RIGHT TO REF– USE THE BREATH TEST AND REF– USE TO ANSWER ANY QUESTIONS BY THE POLICE.
YOU HAVE THE RIGHT TO BE REPRESENTED BY A LAWYER.
IF YOU HAVE NOT BEEN ARRESTED FOR A DRUG OR ALCOHOL RELATED OFFENSE IN THE PAST FIVE YEARS, YOU ARE ELIGIBLE FOR AN OCCUPATIONAL DRIVER’S LICENSE IF YOU REF– USE THE BREATH TEST.
DRIVING WHILE INTOXICATED WITH A CHILD PASSENGER
The penalty for Driving While Intoxicated is increased to a state jail felony if the driver has a passenger in the vehicle younger than 15 years of age.
BOATING UNDER THE INFLUENCE BY A MINOR
It is now a crime for a minor to operate a watercraft while having any detectable amount of alcohol in the minor’s system.
DRIVING ACCIDENT WITH INVALID LICENSE AND NO INSURANCE
If your driver’s license is invalid and you have an accident without insurance, you will be given a ticket for a Class C offense. The penalty goes up to a Class B misdemeanor (up to six months in jail and an optional fine of up to $2,000.00) if you have had a prior conviction. You will be arrested for a Class A misdemeanor (up to one year in jail and an optional fine of up to $4,000.00) if you cause an accident involving death or serious bodily injury.
ASSAULT FAMILY VIOLENCE ISSUES
A Family Violence or Dating Violence offense is serious for reasons not the least of which include the enhancement from a misdemeanor to a felony.
House Bill 2240 creates the new offense of Continuous Violence against the Family. It is a third degree felony (2 to 10 years in prison and an optional fine of up to $10,000) if the defendant engages in 2 or more acts of Family Violence during a period that is 12 months or less in duration. The family violence does not need to be committed against the same family member. This provision has severe consequences for defendants charged with Assault Family Violence where the complainant seeks a Protective Order based on past allegations of abuse.
“Family Violence” means an act or threat by a family or household member against another family or household member that is intended to result in physical harm, bodily injury, assault, or sexual assault. The new law adds an act against an individual with whom another family or household member is or has been in a dating relationship.
“Family” is defined to include individuals related by consanguinity or affinity, former spouses of each other, parents of the same child, and a foster child and foster parent, without regard to whether those individuals reside together.
“Dating Violence” means an act against an individual with whom the actor has or has had a dating relationship. The new law adds an act against another individual who is in a dating relationship with an individual with whom the actor is or has been in a dating relationship or marriage.
A “dating relationship” is defined as a continuing relationship of a romantic or intimate nature.
“Household” is defined as a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other.
- YOU HAVE THE RIGHT to know the accusation against you and of any affidavit filed therewith
- YOU HAVE THE RIGHT to retain counsel
- YOU HAVE THE RIGHT to remain silent
- YOU HAVE THE RIGHT to have an attorney present to advise you prior to and during any questioning
- YOU HAVE THE RIGHT to terminate an interview at any time
- YOU HAVE THE RIGHT to request the appointment of counsel if you are too poor to afford counsel
- YOU HAVE THE RIGHT to be informed by a magistrate that you are not required to make a statement and that any statement you make may be used against you
- YOU HAVE THE RIGHT to a reasonable time and opportunity to consult counsel
- YOU HAVE THE RIGHT to be admitted to bail if allowed by law.