Boating While Intoxicated – BWI

On my YouTube channel, Talking Texas Law, I recently posted a new video.   In it, I discuss the offense of Boating While Intoxicated, which shares a great deal with its more well-known “cousin”, Driving While Intoxicated.  Please give it a watch!

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New Video Posted: Assault versus Aggravated Assault

I recently posted a new video on my YouTube channel, Talking Texas Law.  The subject is the contrast between the misdemeanor offense of Assault and the felony offense of Aggravated Assault according the the Texas Penal Code.  While “simple assault” – another term for misdemeanor assault – is fairly straightforward to prove, the higher offense of aggravated assault is far more complicated, with many ambiguous legal concepts coming into play.  Please check out the video for all the details.

When is a child subject to Texas Juvenile Law?

In a sad article, a 9 year-old child in Illinois has been charged with five counts of first-degree murder for allegedly setting a fire that killed two adults and three children.  Although proving that an individual that young could form the necessary intent to commit first-degree murder may be difficult, in Illinois charging someone of that age is at least legally possible.  Contrast this with a recent case in Michigan, where a judge dismissed a murder charge against a 9 year-old, ruling that since they are less than 10, the defendant was by presumption, incompetent to stand trial.  As we can see, the line between who can and cannot be charged and tried in juvenile court differs from state to state.

What is the rule in Texas?  For juvenile law purposes, the Texas Family Code defines a “child” as a person who is 10 years or older and under 17 or who is 17 years or older but not yet 18 who is alleged to have engaged in acts that are considered delinquent conduct or conduct indicating a need for supervision that occurred before turning 17.  This means that the juvenile court will lose jurisdiction of the person once they turn 18.  In Texas, individuals younger than age 10 cannot be prosecuted in juvenile court (although local authorities could still refer that person and their family to counseling and therapeutic services).

So applying Texas law to the two examples given above we get the following results.  If the Illinois fact pattern occurred in Texas, our courts would not have jurisdiction to accept murder charges made against a 9 year-old suspect.  A local Texas prosecutor could not even legally file the needed paperwork to try to formally charge that person.  In the Michigan example, a Texas court would – just like the Michigan judge – also have to presume that a 9 year-old suspect would be incompetent to stand trial and would have to dismiss any case brought against them.

In law sometimes we have what are known as “bright line rules”, binary yes-or-no situations separating what is legal or allowed from what is not.  In Texas, for establishing when juvenile court jurisdiction begins, we have set that bright line rule at age 10.  A child who is 9 years, 11 months, and 27 days old cannot be brought to juvenile court.  But a child who is just a few days older, and past that threshold of 10 years old, can be charged and tried in juvenile court.  Such bright line rules are often somewhat arbitrary, but it pays to appreciate their existence.

Who pays the Watchers?

The Roman poet Decimus Iunius Iuvenalis, known in English as Juvenal, was the first to ask the famous question “Quis custodiet ipsos custodes”, which we loosely translate as “Who will watch the watchers?”  Well, an interesting article was published recently in The Texas Tribune might have us in the Texas criminal justice system instead asking “Quis solvit ipsos custodes?”  In other words “Who will pay for the watchers?”

The article discusses a Harris County defendant who is out on bond for the offense of capital murder.  As a condition of his release, he was required to wear a GPS ankle monitor.  While out on bond, the defendant became delinquent in his monthly service fee to the company who installed and monitored his ankle device.  Without notice to the assigned court, county pretrial services, or seemingly anyone else, the company “repossessed” the device, taking it off the defendant.  As such, the defendant was not being monitored and was, in the words of one county official, effectively at large.  Needless to say, this was upsetting to the family of the man allegedly killed by the defendant.

This incident brings into focus the competing interests that have to be balanced when discussing a defendant’s release from jail pending charges.  The rights of the accused to a reasonable bail, the safety of the public (including witnesses and family), the financial resources of the county: all of these factors and more have to be considered.  It is very easy to simply state that defendants should wait out their day in court in jail where we know where they are at all time and can assure that they will not flee.  But this fails to recognize the financial strain that over-excessive incarceration can place on a county.  Keeping the accused in jail places all associated costs squarely on the county and local taxpayers.  Additionally local jails simply cannot house everyone awaiting trial, to say nothing of the constitutional right to bail enjoyed by all accused of a crime.

However, when defendants are released from jail, there can be significant financial hardships that make complying with bond/release conditions very hard.  An arrest with even a short incarceration until a bail bond can be posted can result in financial disruption or job loss.  Initial bond costs, electronic monitoring installation fees, pre-trial services fees, attorney fees; getting all of these costs and more handled can be more than some defendants are able to manage.  Is the answer to simply put them back in jail?  To waive certain fees?  Which ones?  Who has to do without or with less?

To quote another famous saying “there’s no such thing as a free lunch”.  Keeping defendants in jail prior to trial is expensive.  Keeping them out of jail is expensive too.  Ultimately those costs have to be paid by someone; we cannot just wish them out of existence.

I’m All Ears

In this day and age when almost everyone is walking around with an easy to use and easy to conceal recording device backed up with hefty amounts of digital memory (AKA a cellphone), I frequently get the question whether or not it is legal to secretly record someone else either during a phone call or a face-to-face conversation.  In earlier days – not that long ago actually – such recordings required specialty equipment.

If you were an ordinary civilian without access to cutting edge surveillance equipment the options were quite limited.  Recording a phone call meant using a clunky device that employed audio cassettes wired to a phone’s handset.  Secretly recording a face-to-face conversation meant hiding a “micro” cassette recorder (that still managed to be quite large) somewhere that was out of sight yet could still pick up the noise of the conversation.

But with the advent of the cell phone, such secret recordings are quite easier to make.  However, easier does not necessarily mean allowable or legal.  In the state of Texas, as long as one party to the conversation is aware of the recording, it is perfectly legal to record a phone call or a face-to-face discussion.  No other party has to be made aware of the recording.  So for example, in Texas, if Jack and Jill are on the phone together and Jack wishes to record the call, he can do so legally and never has to notify Jill that she is being or might be recorded.  This same rule applies if Jack and Jill are having a face-to-face meeting either in a private or a public location.

Let me please reiterate that I have described what is allowable in Texas.  In some other states what Jack did (recording a call or in-person conversation) without Jill’s consent or knowledge would be considered a crime.  The rules absolutely vary from jurisdiction to jurisdiction.  Conduct that is perfectly allowable in one state could be civilly or criminally sanctionable somewhere else.

I want to also highlight an important aspect of the Texas rule regarding secret recordings: that at least one party to the conversation must be aware of the recording.  So if Jack and Jill are having a phone call together and Sam decides to secretly record the call, then Sam is committing a crime even in Texas.  Again, at least one party to the secretly recorded conversation must be aware of the recording for this act to be legal.

What I’ve described above applies to civilians; the police operate under different rules.  Law enforcement investigators can certainly tap phones or bug locations to listen in and record conversations but only after being granted that power via a properly obtained warrant issued by a neutral and detached judge upon a showing of necessity.

As with all things, it pays to know the rules and proceed accordingly.

 

Take Your Pick!

I’m pleased to announce that I am now available to meet with clients at the new Heritage Office Suites building located at 601 Quail Valley Drive, Georgetown, Texas.  This is of course in addition to my original office location at 1000 Heritage Center Circle in Round Rock.

Both locations offer medium and large conference rooms for when we need to meet with more than my office can hold, as well as capability for audio and video presentations.  So, Round Rock or Georgetown, whichever is more convenient for you, take you pick!

You’ll Never Know Unless You Ask – Part 2: Getting off Deferred Adjudication Probation Early

 

In a previous blog, I discussed getting off of a straight or regular probation early in Texas.  Today, let’s discuss the ins and outs of a motion for early termination of a deferred adjudication probation.  It is possible to be off of a deferred adjudication probation earlier than the full term, but as in all things law-related, there are hard and fast rules as well as suggested guidelines.

As for the basic requirements, there is technically no minimum waiting period you have to serve before you can ask to get off of a deferred early.  Theoretically you could be placed on probation on a Monday and ask to have it terminated on Tuesday.  Now the odds of a judge going along with that are about zero, but it does highlight how in Texas we don’t have a set amount of time built into the law that you have to serve.

That being said, each judge may have his or her own minimum waiting period in mind.  Where one court may want you to have served one half of your sentence, another may want more…or less.  Ultimately, it pays to know a little bit about your judge and their habits on granting or denying motions for early termination of deferred on your type of case.

Judges will typically also balance such factors as the seriousness of the original offense charged, the defendant’s prior criminal history, the opinions of the probation department, the prosecutor’s office and the victim, if any.  Also, all judges will certainly look very carefully into the behavior of the defendant while on probation.

So if you are thinking about filing to terminate your deferred adjudication early, honestly ask yourself what kind of a probationer have you been?  Have you made your appointments and payments on time, have you been responsive to the needs of your probation officer, have you tested clean for drugs and alcohol when required?  The court may not always follow the advice of the probation department, but they will always hear them out.  Make sure that when your probation officer speaks to the court about you, there is more good than bad.

To make yourself the best candidate for early termination possible it helps to have paid off any outstanding balance of court costs, fines, and restitution.  Also, fully completing any assigned community service hours, classes, counseling and treatment programs looks great too.  It shows the court that you are well on your way towards full rehabilitation.

Please bear in mind that there are certain offenses not eligible for early termination of a deferred adjudication.  Generally, these are offenses that required registration as a sex offender under Chapter 62 of the Texas Code of Criminal Procedure.  For all other types of offenses which are eligible, if you have been doing a good job on your deferred, there is no harm in getting back before your judge to take a shot at an early termination.  The worst that can happen if you are denied is that you still remain on deferred as before, free to refile your motion at a later time to try again!

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