Texas to Comply with P.R.E.A.

Former Governor Rick Perry refused to order the Texas Department of Criminal Justice to comply with with the Prison Rape Elimination Act.  This is particularly interesting since Perry himself faces potential prison time on felony corruption charges.

Recently, new Governor Greg Abbott reversed this policy and pledged to adopt the P.R.E.A. regulations in Texas prisons.  Last spring, Mr. Abbott was called to jury duty in Travis County Court at Law #4, a specialized court that handles assaults involving family or dating violence.  Most of my cases are in Court #4 since domestic violence is the focus of my practice.  Here is a picture of Mr. Abbot with Jesse Ibarra, the bailiff in CC4:


Travis County stands to lose millions for not reporting criminal history data

Travis County’s poor performance in criminal history data reporting requirements was in the news a couple of months ago. Now, it stands to lose about 3 million dollars annually in grant money from the state if it doesn’t come into compliance.
Prosecutors are concerned about the issue because they fear that missing criminal history data could cause them to be too lenient on repeat offenders. But arrests usually ARE reported and prosecutors invariably assume that an arrest means that a person is guilty. As a result, missing criminal history data–which includes favorable case dispositions such as dismissals and acquittals, as well as convictions–is more likely to cause prosecutors to treat a person too harshly rather than too leniently.

Even when you can prove that a case was ultimately thrown out, it is often difficult if not impossible to get a prosecutor to back down from whatever position she takes based on her initial impression of a defendant’s criminal history. That fact combined with prosecutors’ tendency to presume guilt means that defendants are generally better served by case dispositions being reported right along with arrests.

It is worth noting, however, that even when a dismissal is reported on a person’s criminal history, it does not get him back to a clean slate. In other words, a criminal history that shows an arrest that resulted in a dismissal is not equivalent to a clean criminal history to a prosecutor, who is likely to assume that the dismissal resulted from a technical defect, an uncooperative victim, or the machinations of a good defense attorney. Thus, the dismissed case may still lead to a harsher punishment recommendation or even just a less flexible position during plea negotiations, which can also lead to a less favorable result. That is one of the reasons that it’s so important to pursue an expunction for eligible charges.

Travis County lags behind in criminal history updates

A Statesman article from last month reported that Travis County doesn’t do a good job of providing updated information about criminal cases to DPS for inclusion in the State’s criminal history database. This can work both ways for people who have been charged with a crime.

On the one hand, a person who is looking for employment and was recently arrested may not have that new arrest showing up on his criminal history as quickly as it should, which can work to his advantage if he finds a job before it does. On the other hand, when a prospective employee’s case has been dismissed or otherwise favorably disposed of, that update also won’t reach his criminal history as quickly as it should, so a background check may show the case as pending long after it’s been dismissed. The good news is that the attorney who handled the case should be able to provide documents showing the favorable disposition. Still, it’s far less awkward for the prospective employee if the criminal history accurately reflects that the case was dismissed.

On a related note, a lot of people assume that when a case is dismissed, it’s automatically removed from a person’s criminal history but that’s not true! Once updated properly, the criminal history will merely show that the case was dismissed. To have it removed from his criminal record, the person must generally wait until the statute of limitations expires (that’s two years for a misdemeanor and three or more years for a felony, depending on the charge) then hire an attorney to file a petition for expunction. See this FAQ for more information about expunctions.

DPS surcharge amnesty program.

Earlier this month, DPS began an amnesty program that allows certain folks who are behind on their surcharge payments to lower the payments and in some cases even waive a huge portion of the amount owed! So if you’re behind on surcharge payments, go to this website to enter your information and see if you qualify for the program.

The amnesty period expires in April. Here’s a link for more information about eligibility and other program requirements .

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For those who are unfamiliar with surcharges, Texas law adds a huge administrative fine upon conviction for certain offenses, including DWI, Driving While License Suspended (DWLS), and No-Insurance tickets. The fine is assessed for each of the three years following the conviction and is above and beyond whatever fines, fees, jail time, etc., may be assessed in court for the actual offense.

For example, with a typical first-offense DWI conviction in Travis County, the defendant may spend one or two days in jail at the time of the arrest, then be put on probation for 18 months. As part of his sentence, he will be required to pay a fine, court costs, various other fees associated with being on probation, do community service, attend court-ordered counseling, meet with a probation officer one a month, and submit to random drug and alcohol testing. This is all after paying a lawyer a hefty fee to represent him, of course. The surcharge program means that, above and beyond all of that, DPS also assesses a fine of $1,000 (more under certain conditions) for each of the three years following the conviction, for a total of $3,000.

Needless to say, many people fall behind on their surcharge payments, which means their licenses get suspended. If they’re caught driving after that, they may very well end up with a new conviction for DWLS, which triggers another round of surcharges. It can be a vicious cycle where people end up owing thousands of dollars to the State of Texas that they simply cannot afford to pay.

2009 Top Bars for DWI

“Where are you coming from?” is a standard question in a DWI investigation and APD ranks local bars accordingly. The 2009 numbers are in. Here are the top 10 (the figure at the end is the number of DWI arrests of people coming from the bar):

  1. J. Blacks, 710 W. Sixth Street, 27

  2. The Ranch, 708 W. Sixth Street, 22

  3. Rain, 217 W. Fourth Street, 17

  4. Maggie Mae’s, 323 E. Sixth Street, 16

  5. Blind Pig, 317 E. Sixth Street, 16

  6. Oilcan Harry’s, 211 W. Fourth Street, 15

  7. Fado, 214 W. Fourth Street, 15

  8. Pure, 419 E. Sixth Street, 13

  9. Cedar Street, 208 W. Fourth Street, 13

  10. Union Park, 612 W. Sixth Street, 12

For those of you who don’t already know this, you’re not required to answer such questions and if you’re coming from a bar, you probably shouldn’t.

Trials aren’t as common as you think.

Law & Order notwithstanding, the reality is that trials are actually pretty rare. I’ve been telling clients for years that probably something like five percent or less of criminal cases go to trial.

In fact, one of the biggest reasons I did a stint as a prosecutor early in my career was that after my first year as a criminal defense attorney, I had zero trial experience. Even cases that I was certain would go to trial ended up with a dismissal or a plea bargain offer that was just too good to refuse (sometimes on the morning the trial was scheduled to start, much to my dismay). As a prosecutor, on the other hand, the sheer volume of cases that I handled ensured that I got the much-desired trial experience. Even so, it was less than I’d expected. Turns out that’s not so surprising…

Among other interesting tidbits that Grits culled from the annual report on the Texas Judiciary is the fact that less than two percent of all felony cases in Texas went to trial in 2009. That number is only one percent for misdemeanors (which includes DWIs). That’s even lower than I thought.

I knew they were rare but that’s harsh.

I get an occasional call from someone interested in seeking a pardon. Usually, the person doesn’t understand the process and, once I explain how rare it is for the governor to actually grant a pardon (even when it’s recommended by the Board of Pardons and Paroles, apparently), the interest dries up.

Here are some hard numbers from Grits for Breakfast that underscore the point:


That certainly validates my conviction that an attorney has an ethical obligation to warn a client about the improbability of success before accepting money to handle an application for pardon.

These numbers include only full pardons but I find it doubtful that the numbers for other forms of clemency, such as conditional pardons, pardons based on innocence, commutations of sentence, and emergency medical reprieves are appreciably larger. Here’s a link to Grits’s source material for anybody motivated enough to actually answer that question. For more information about pardons, see this FAQ sheet from the Board of Pardons and Paroles.