Keller Criminal Defense Strategies You Need to Know

Navigating the complexities of criminal law can be daunting, especially in Keller, Texas, where the legal landscape is shaped by specific local statutes and practices. This article aims to equip you with essential knowledge about effective criminal defense strategies that can significantly impact the outcome of a case. Understanding these strategies is crucial for anyone facing criminal charges, as they can mean the difference between a favorable resolution and severe penalties. We will explore various defense tactics, common charges, and the legal implications associated with them, providing a comprehensive overview of what you need to know. Additionally, we will highlight the importance of seeking professional legal representation, particularly from firms like the HLAW Law Firm, which specializes in criminal defense services in Keller.

The essential criminal defense strategies in Keller include:

Effective criminal defense strategies are vital for anyone facing charges in Keller. These strategies can help mitigate the consequences of criminal accusations and potentially lead to favorable outcomes. Here are some essential defense strategies:

1. Challenging Evidence: A strong defense often begins with scrutinizing the evidence presented by the prosecution. This includes questioning the legality of how evidence was obtained and its relevance to the case.
2. Negotiating Plea Deals: In many cases, negotiating a plea deal can be beneficial. This strategy allows defendants to plead guilty to lesser charges in exchange for reduced penalties, which can be a more favorable outcome than going to trial.
3. Presenting an Factual Defense: Establishing an factual argument based on the law can be a powerful defense. If a defendant can prove they were elsewhere when the crime occurred, or that there is a factual inaccuracy in the investigation it can lead to a dismissal of charges.

These strategies form the foundation of a robust defense in Keller, and understanding them is crucial for anyone facing criminal charges.

What Are the Most Common Criminal Charges in Keller and Their Legal Implications?

In Keller, several criminal charges are frequently encountered, each carrying its own legal implications. Understanding these charges is essential for anyone involved in the criminal justice system. The most common charges include:

1. Driving While Intoxicated (DWI): This charge can result in severe penalties, including fines, license suspension, and even jail time. The legal implications can escalate with repeat offenses.
2. Domestic Violence: Charges related to domestic violence can lead to significant legal consequences, including restraining orders and criminal records, which can affect future employment and housing opportunities.
3. Theft Offenses: Theft charges can vary in severity, from misdemeanors to felonies, depending on the value of the stolen property. Convictions can result in fines, restitution, and imprisonment.

Understanding these charges and their implications is crucial for anyone facing legal issues in Keller.

Understanding Felony Charges and Their Consequences in Keller

Felony charges in Keller are serious offenses that can lead to significant legal consequences. These charges typically involve severe crimes such as robbery, aggravated assault, or drug trafficking. The penalties for felony convictions can include lengthy prison sentences, substantial fines, and a permanent criminal record, which can impact various aspects of life, including employment and housing opportunities.

Overview of Misdemeanor Offenses and Penalties in Keller

Misdemeanor offenses, while less severe than felonies, can still carry significant penalties. In Keller, misdemeanors are classified into three categories:

1. Class A Misdemeanor: This can result in up to one year in jail and fines up to $4,000.
2. Class B Misdemeanor: Penalties can include up to 180 days in jail and fines up to $2,000.
3. Class C Misdemeanor: Typically results in fines only, with no jail time.

Understanding the classification of misdemeanors is essential for defendants, as it helps in strategizing their defense.

Which Keller Felony and Misdemeanor Defense Strategies Are Most Effective?

When facing felony or misdemeanor charges in Keller, employing effective defense strategies is crucial. Some of the most effective strategies include:

1. Challenging Evidence: This involves questioning the validity of the evidence presented by the prosecution, which can lead to case dismissal if successful.
2. Negotiating Plea Deals: This strategy can result in reduced charges or penalties, making it a practical option for many defendants.
3. Utilizing Specific Defenses: Depending on the case, defenses such as self-defense, entrapment, or lack of intent can be employed to challenge the prosecution's case.

These strategies can significantly influence the outcome of a case, making it essential for defendants to understand their options.

Key Keller Felony Defense Approaches: Protecting Your Rights

Protecting your rights during a felony charge is paramount. Key approaches include:

1. Challenging Evidence Validity: This involves scrutinizing how evidence was collected and whether it adheres to legal standards.
2. Negotiating Favorable Outcomes: Skilled attorneys can negotiate with prosecutors to achieve more lenient sentences or alternative sentencing options.

These approaches are designed to safeguard the rights of defendants and ensure fair treatment under the law.

Practical Keller Misdemeanor Defense Tips for Favorable Outcomes

For those facing misdemeanor charges in Keller, practical defense tips can help achieve favorable outcomes:

1. Consult an Experienced Attorney: Engaging a knowledgeable attorney can provide insights into the legal process and potential defenses.
2. Understand Potential Defenses: Familiarizing oneself with possible defenses can empower defendants to make informed decisions about their cases.

These tips can be instrumental in navigating the complexities of misdemeanor charges.

How Does Keller DWI Defense Work and What Are Your Legal Options?

DUI defense in Keller involves understanding the legal framework surrounding driving under the influence charges. Defendants have several legal options, including:

1. Challenging Evidence: This can involve questioning the accuracy of breathalyzer tests or the legality of the traffic stop.
2. Negotiating Plea Deals: Similar to other charges, negotiating a plea deal can lead to reduced penalties.

Understanding these options is crucial for anyone facing DUI charges in Keller.

Common Keller DWI Defense Tactics and Case Examples

Common defense tactics for DWI cases in Keller include:

1. Challenging Traffic Stop Legality: If the stop was unlawful, evidence obtained may be inadmissible.
2. Questioning Breathalyzer Accuracy: Demonstrating that the breathalyzer was not properly calibrated can undermine the prosecution's case.

These tactics can be effective in reducing or dismissing DUI charges.

The scientific validity of alcohol concentration measurements is often a critical point of contention in DUI cases, as highlighted by forensic research.

DUI Defense: Challenging Breath & Blood Alcohol Tests

Blood Alcohol Concentration (BAC) measurement through a Breath Alcohol Concentration (BrAC) measurement is the presently employed forensic method to detect DUI (driving under influence) crimes all over the world. This method appears to be a perfect case for the application of forensic metrology, since both definitional and instrumental uncertainties have an important role. Moreover, since the measured alcohol concentration is compared with statutory limits, the effect of uncertainty on the decision taken on the basis of such a comparison represents also an important point in assessing the doubt associated with such a decision. This chapter covers all these points and reports on some real DUI cases.

Breath and Blood Alcohol Concentration Measurement in DUI Cases, A Ferrero, 2022

Steps to Take When Facing a DUI Charge in Keller

If you are facing a DUI charge in Keller, consider the following steps:

1. Contact a Defense Attorney: Engaging a qualified attorney can provide essential guidance and representation.
2. Request an ALR Hearing: This hearing can challenge the suspension of your driver's license.

Taking these steps can help protect your rights and navigate the legal process effectively.

What Should You Expect During the Client Consultation and Trial Preparation Process with the HLAW Law Firm?

When consulting with the HLAW Law Firm, clients can expect a thorough and informative process. The initial consultation typically includes:

1. Discussion of Case Details: Clients will share their circumstances, allowing the attorney to assess the situation.
2. Trial Preparation Steps: The firm will outline the necessary steps to prepare for trial, ensuring clients are informed and ready.

This process is designed to empower clients and provide them with the knowledge they need to navigate their cases.

The Keller Criminal Defense Client Consultation: What to Prepare

Preparing for a client consultation with the HLAW Law Firm involves gathering relevant information. Clients should consider:

1. Bringing Relevant Documentation: This includes any legal documents related to the case.
2. Preparing Questions: Clients should prepare questions to ensure they understand the legal process and their options.

Being well-prepared can enhance the consultation experience and lead to more effective representation.

Trial Preparation Tips: Navigating Tarrant County Criminal Court Procedures

Navigating the trial preparation process in Keller requires understanding local court procedures. Key tips include:

1. Understand Local Procedures: Familiarizing oneself with the specific procedures of the Keller court can help in preparing for trial.
2. Prepare Documentation: Ensuring all necessary documents are organized and ready for presentation can streamline the trial process.

These tips can help defendants navigate the complexities of the criminal court system effectively.

Understanding expunction law in Texas, a critical legal mechanism for clearing criminal history records and offering individuals a fresh start.

Introduction to Texas Expunction Law

Expunction in Texas represents a critical legal mechanism designed to provide individuals with a fresh start by clearing specific criminal history records. This process is distinct from other forms of record management and is governed by precise statutory frameworks that have recently undergone significant modernization.

Defining Expunction: Purpose and Legal Effect

Expunction is a judicial process in Texas that aims to permanently remove records of arrest, charge, or conviction from an individual's criminal history. The fundamental purpose of expunction is to render the expunged event as if it never occurred. This profound legal fiction implies a significant societal commitment to rehabilitation and offering second chances, particularly for individuals who were wrongfully accused or whose minor infractions did not lead to a conviction. The intent extends beyond mere privacy; it is about restoring a person's legal identity and opportunities, allowing them to move forward without the burden of a past record.

The practical effect of an expunction is the complete removal and destruction of files containing references to the crime, arrest, and punishment from public records, including those held by police and prosecution agencies. Once a case is expunged, it is effectively erased from public view, enabling the individual to legally deny the occurrence of the expunged event on most applications, such as those for employment, housing, or military service. This ability to truthfully state that the event did not occur is a cornerstone of the expunction's rehabilitative power, preventing past incidents from creating lifelong barriers to social and economic integration.

Expunction vs. Nondisclosure: Key Distinctions and Implications

While both expunction and nondisclosure orders serve to manage criminal records and require a judge's order, they differ significantly in their scope and the degree of record clearance they provide. Understanding these distinctions is crucial for individuals seeking to address their criminal history.

Expunction results in the complete removal or destruction of criminal records. Once an expunction order is granted, the records are inaccessible to the public, law enforcement, and most government agencies. This process allows the individual to legally deny the event occurred, creating a comprehensive erasure from their public criminal history.

Nondisclosure (Record Sealing), conversely, seals the record, restricting public access but allowing law enforcement, licensing agencies, and certain government entities to still view the information. This option is typically available for individuals who have successfully completed deferred adjudication for certain offenses. The clear differentiation between these two remedies reflects a nuanced legislative intent to balance individual rehabilitation with public safety and regulatory oversight. The state recognizes that not all non-convictions warrant complete erasure, particularly for offenses where deferred adjudication was granted, indicating a level of culpability or state intervention that necessitates continued governmental access for internal purposes, such as future criminal investigations or professional licensing checks. This tiered approach to record clearance ensures the level of relief granted is proportional to the nature of the original incident and its disposition.

The table below summarizes the core differences between expunction and nondisclosure:

Feature	Expunction	Nondisclosure
Definition	Complete erasure of criminal records	Sealing of criminal records
Effect on Record	"As if it never occurred"	Hidden from public view
Who Can See	Public, most government agencies (cannot see)	Law enforcement, licensing agencies, certain government entities (can see)
Eligibility Basis	Acquittal, dismissal, no charges filed, pardon	Successful deferred adjudication
Legal Denial	Yes, can legally deny	Yes, can legally deny to public/employers

Governing Statutes: Texas Code of Criminal Procedure Chapter 55 and Chapter 55A, Government Code Chapter 411, Family Code Chapter 58

The legal framework for expunction in Texas has historically been primarily governed by the Texas Code of Criminal Procedure, Chapter 55. This chapter meticulously outlined the eligibility criteria, the rights of individuals seeking expunction, and the specific procedures that petitioners were required to follow.

However, a crucial legislative update, House Bill 4504 (H.B. 4504), enacted by the 88th Legislature, R.S., has fundamentally restructured Texas expunction law. Effective January 1, 2025, Chapter 55 was repealed and replaced by a new comprehensive chapter: Chapter 55A. Expunction of Criminal Records. This transition signifies a legislative intent to not just amend, but to modernize and streamline the expunction process, addressing past complexities and aiming for clearer guidelines and potentially broader access to relief. The stated goals of HB 4504, such as "simplifying and modernizing" the criminal procedure code, underscore that this is a comprehensive re-codification rather than a minor adjustment. The impact of this change is expected to be felt across all aspects of expunction law, from eligibility to procedure, necessitating careful attention to the evolving legal landscape.

Beyond expunction, nondisclosure orders are governed by the Texas Government Code, Chapter 411, Subchapter E-1. For the sealing of juvenile records, the relevant statute is the Texas Family Code, Chapter 58, specifically beginning at Section 58.003. These separate statutory frameworks highlight the distinct legal considerations and processes for different types of record clearance.

Eligibility Criteria for Expunction

Determining eligibility is the foundational step in the expunction process, as not all criminal records qualify for this comprehensive relief. The criteria are stringent and depend heavily on the disposition of the case and the nature of the offense.

General Conditions for Expunction

Expunction is generally available for arrests that did not lead to a conviction. This consistent emphasis on non-conviction scenarios across various legal resources underscores a foundational legal philosophy: an arrest alone does not equate to guilt, and if the legal process does not culminate in a finding of guilt, the state provides a mechanism to erase the arrest's public footprint. This protects individuals from the collateral consequences of an arrest that did not lead to a conviction, such as employment discrimination or housing denials.

Key scenarios that typically qualify for expunction include:

• Arrested but not formally charged: If no criminal charges were filed against the person after an arrest.
• Acquittal: The person was tried for the offense and acquitted by the trial court.
• Dismissal: Charges against the person were dismissed or quashed, often due to reasons such as lack of probable cause, false information, or a mistake.
• Pardon: The person was found guilty and subsequently pardoned, whether the pardon was granted on the basis of actual innocence or for other reasons.
• Pretrial Diversion: Successful completion of a pretrial diversion program can also lead to expunction eligibility.

Specific Offense Eligibility

While the general rule for expunction centers on non-convictions, Texas law includes specific provisions for certain offenses, reflecting a legislative recognition of the disproportionate impact of minor or non-culpable records on individuals' lives.

• Class C Misdemeanors: A notable exception to the general rule that deferred adjudication leads only to nondisclosure is for Class C misdemeanors. Expunction is permitted for Class C misdemeanors where deferred adjudication was successfully completed. This indicates that the state views these minor offenses as sufficiently low-level that even a deferred adjudication should not leave a permanent public mark.
• DWI Offenses: Generally, expunction is not available for DWI convictions. However, if DWI charges were dismissed or the individual was acquitted, expunction may be possible. For first-time DWI offenders, nondisclosure might be an available option depending on the specific details of the case.
• Identity Theft: Individuals whose identity was used by someone else during an arrest are specifically eligible for expunction, recognizing the injustice of a record for a crime they did not commit.
• Truancy/Sexting (Juvenile/Minor Offenses): Recent legislative changes have expanded expunction eligibility for certain juvenile and minor offenses. For example, new laws (such as SB144, SB1489, SB407 mentioned in ) have made expunction possible for single truancy offenses (if the individual is 18 or older and meets conditions like obtaining a high school diploma or GED) and single sexting convictions (if 17 or older).
• Multiple Violations for First-Time Minor Alcohol Offenders: Significant recent legislation, Texas Senate Bill 1725 (effective September 1, 2023), allows for the expunction of multiple violations arising from a single incident for first-time minor alcohol offenders. This change addresses previous issues where prosecutors often "stacked" charges, preventing comprehensive record clearance for minor incidents. These specific provisions demonstrate a policy shift towards mitigating the long-term consequences of events where the individual's culpability was minimal, non-existent, or related to youthful indiscretion, aiming to prevent these minor incidents from creating lifelong barriers.

Mandatory Waiting Periods

For many expunction scenarios, specific waiting periods must elapse before a petition can be filed. The existence of these waiting periods, even when no charges are filed, suggests a pragmatic approach by the state: it allows time to determine if charges will be brought or if further investigation is warranted, acting as a safeguard against premature expunction.

• For offenses where no charges were filed, minimum waiting periods apply from the date of arrest:
• Class C misdemeanors: 180 days.
• Class A and B misdemeanors: 1 year.
• Felonies: 3 years.
• For cases where charges were brought and later dismissed, the statute of limitations must have expired for all crimes associated with the arrest (not just the charged offenses) before expunction can be applied for, unless the dismissal was due to lack of probable cause or actual innocence.
• Immediate Eligibility: In contrast, if the case was dismissed due to lack of probable cause or actual innocence, or if the person was acquitted by a jury, there is generally no waiting period. This immediate eligibility indicates a strong legal and ethical imperative to rectify wrongful accusations without delay, recognizing the immediate and severe impact of an unjust arrest record.

The table below provides a concise summary of the mandatory waiting periods:

Scenario	Waiting Period
No Charges Filed (Class C Misdemeanor)	180 days from arrest
No Charges Filed (Class A/B Misdemeanor)	1 year from arrest
No Charges Filed (Felony)	3 years from arrest
Acquittal/Actual Innocence	No waiting period
Dismissal (other reasons)	Until statute of limitations expires

Disqualifying Factors and Exceptions

Despite the broad intent of expunction, strict disqualifying factors exist, underscoring the limited nature of this remedy and the state's paramount interest in maintaining records for public safety and accountability when guilt is established or prosecution is ongoing.

• Convictions: Generally, if an individual was convicted of the offense, they are not eligible for expunction. The only exceptions are a pardon or a Class C misdemeanor that resulted in successful deferred adjudication. This highlights that expunction is an exceptional remedy primarily for non-convictions, not a general pardon for all past offenses.
• Pending Charges: If there are currently pending charges against the individual stemming from the arrest they seek to expunge, they are not eligible for expunction.
• Criminal Episode: A court may not order expunction if the person was acquitted of an offense, but that offense arose out of a criminal episode for which they were convicted or remain subject to prosecution. This limitation prevents individuals from selectively erasing parts of a connected criminal history, ensuring a holistic view for justice agencies where genuine culpability exists. However, if multiple charges from the same arrest did not arise from the same criminal episode, expunction for the non-convicted charge may still be possible.
• Deferred Adjudication (Non-Class C): For Class A and B misdemeanors or felonies, successful completion of deferred adjudication typically makes an individual eligible only for an order of nondisclosure, not expunction.

Special Circumstances (Juvenile Records)

Texas law provides distinct and often more lenient provisions for juvenile record sealing, reflecting a legal philosophy focused on rehabilitation and preventing youthful mistakes from permanently hindering adult opportunities.

Juvenile records can be sealed under Texas Family Code, Chapter 58. The state may automatically restrict record access for individuals who turn 17, provided they were not violent or serial offenders and were not tried as adults. Additionally, juveniles and their representatives can petition the state to permanently seal criminal records. For felony offenses committed as a juvenile, an offender may qualify for record sealing if they are 19 or older, were not tried as an adult, and did not obtain a conviction for an additional felony after turning 17. Recent legislative changes effective in 2025 may even lead to automatic sealing of juvenile records for minor offenses without requiring a lengthy application process. These provisions underscore a recognition that minors' actions should be treated differently from adults', aiming to give young people a genuine "fresh start" by minimizing the long-term impact of their early interactions with the justice system.

The Expunction Process: Step-by-Step Guide

Navigating the expunction process in Texas requires adherence to specific procedural steps, from initial eligibility assessment to post-order record removal. The complexity of these steps often necessitates professional legal assistance.

Initial Assessment and Eligibility Confirmation

Before initiating the expunction process, it is paramount for an individual to confirm their eligibility and ascertain that any applicable waiting periods have passed. The repeated emphasis on legal consultation and the inherent complexity of eligibility assessment suggest that while the law aims to provide a fresh start, the practical hurdles to achieving it are significant, potentially creating a barrier to access for unrepresented individuals. Legal professionals are strongly recommended to confirm eligibility under the current Texas laws, as the criteria can be nuanced and the process unforgiving. For specific case information, individuals can contact the District Attorney's office or Municipal Courts.

Preparing the Petition and Required Documents

The expunction process is a civil matter that demands specific petitions and orders containing precise legal language. The lack of readily available "fill-in-the-blank" official forms for expunction, coupled with the strict requirement for precise legal language, indicates a deliberate design that favors legal expertise, potentially hindering pro se applicants. If documents are inaccurate or incomplete, a judge will deny the expunction.

Typically, petitioners will need to prepare three core documents:

• A Petition for Expunction.
• An Order Setting Hearing.
• An Agreed Order of Expunction.

While Texas generally provides few official legal forms, petitioners may draft custom forms using templates or drafting guides. Resources such as TexasLawHelp.org and the Office of Court Administration offer sample forms. Additionally, gathering all necessary documentation, including arrest records, court case numbers, and proof of dismissal or acquittal, is essential for a complete petition.

Filing Procedures and Associated Fees

Once the necessary documents are prepared, the petition and order setting hearing must be filed with the appropriate District Clerk's office, such as the Harris County District Clerk. Filing fees apply, with a base fee of approximately $227 in some counties, plus additional fees for serving each law enforcement agency listed in the petition. Payment methods may be restricted, often excluding personal checks.

Significant legislative changes introduced by C.S.S.B. 1667, effective September 1, 2025, aim to streamline the expunction process and reduce financial burdens. Electronic service of petitions and notices to agencies will become free to the filer, and state and local agencies will be required to accept electronic service whenever possible. For cases where electronic service is not available, a standardized fee of $25 per entity will be charged. This shift towards electronic processing and standardized fees reflects a proactive effort by the state to modernize the expunction process, recognizing past administrative bottlenecks and aiming for improved efficiency and predictability in costs.

Notifying Agencies and Entities

The expunction petition must meticulously list all law enforcement agencies, courts, prosecuting attorneys, and other governmental entities that may possess records of the arrest. It is critically important to include all necessary parties, as failing to do so may result in records remaining publicly accessible even after an expunction order is granted, undermining the purpose of the expunction. The court is responsible for sending a copy of the petition and notice of hearing to each listed entity.

C.S.S.B. 1667, effective September 1, 2025, further streamlines this notification process. Petitions will be prohibited from listing any state or local agency more than once or including multiple contacts or addresses for different divisions within the same agency, thereby reducing redundancy. Additionally, district clerks will be required to maintain a list of agencies and their email addresses on their website to facilitate accurate notification. This legislative effort to standardize agency listings and promote electronic notification demonstrates an understanding that administrative inefficiencies in record dissemination can undermine the effectiveness of expunction orders, and that a centralized, streamlined approach is necessary for true record clearance.

Court Hearings and Judicial Review

Upon filing, the court will set a hearing on the expunction petition, typically not earlier than 30 days after the filing date. Petitioners may need to attend this court hearing, especially if the expunction is contested by an agency or if the judge requires further confirmation of eligibility.

A key procedural step involves the "Agreed Order of Expunction." This document must be prepared by the petitioner and signed by all listed law enforcement agencies before it is submitted to the court for the judge's final approval. The requirement for a court hearing and the need for agencies to sign an "Agreed Order" before judicial approval indicate that expunction, despite its "fresh start" purpose, is not a mere formality. Instead, it involves a judicial review that balances individual rights with institutional oversight, ensuring that expunction is granted only when all legal and procedural requirements are met and the state's interests are not unduly compromised.

Post-Order Procedures and Timelines for Record Removal

Once the judge signs the expunction order, the court is responsible for circulating it to all relevant agencies. However, the process does not conclude immediately. It typically takes a minimum of three months for an expunction order to become final, and often longer due to administrative backlogs, particularly with the Texas Department of Public Safety (DPS), which serves as the central clearinghouse for criminal records. The historical challenge of slow processing times and limited record retention for expunction orders highlights a systemic bottleneck that previously undermined the practical benefit of expunction.

To address these issues, recent changes introduced by C.S.S.B. 1667 (effective September 1, 2025) aim to improve efficiency. Clerks will be allowed to retain expunction orders indefinitely, ensuring petitioners can obtain copies if needed, thereby addressing the previous one-year retention limit that often forced individuals to restart the process if they lost their original order. Additionally, the bill aims for faster processing times through the implementation of a more efficient digital system. These legislative actions demonstrate a commitment to making the expunction process more practically viable and sustainable for individuals, moving beyond just defining the right to expunction to actively facilitating its effective implementation.

Legal Effects and Practical Implications of Expunction

The successful expunction of a criminal record carries significant legal and practical implications, fundamentally altering an individual's public criminal history and their ability to move forward.

Impact on Background Checks (Public vs. Governmental Access)

Once a record is expunged, it should not appear in background checks conducted by private entities such as employers, landlords, or financial institutions. The judge's order mandates all governmental agencies to completely erase the record for that specific allegation. This is a powerful aspect of expunction, designed to remove barriers to employment, housing, and financial stability.

However, it is important to note a critical limitation: some federal agencies, such as the Department of Homeland Security, may still retain knowledge of the expunged crime. This distinction between state-level expunction and federal access reveals a tension between individual rehabilitation and the state's need for comprehensive information, particularly at the federal level. State expunction orders do not bind federal agencies, creating a persistent "shadow record" for certain purposes (e.g., immigration, federal employment). This is a significant limitation on the "as if it never occurred" principle and a crucial point for individuals to understand when considering federal applications.

Right to Deny Arrest and Expunged Offenses

A significant benefit of expunction is the legal right it grants an individual to deny that they were ever arrested, charged, prosecuted, or jailed for the expunged offense. This ability to truthfully deny the event is a cornerstone of expunction's rehabilitative power. This denial can be made on various applications, including those for employment, school, or military service, and even under oath in civil proceedings.

There is one key exception: in a criminal proceeding, a person must acknowledge the expunction order by stating that the matter has been expunged. This exception reflects the state's overriding interest in maintaining accurate internal records for ongoing justice administration. The court system needs to know an individual's full history when administering justice for new offenses, even if past records are publicly expunged. This balance demonstrates the law's attempt to provide a fresh start without compromising the integrity of the criminal justice system.

Importance of Legal Counsel

The expunction process is highly complex, involving specific legal requirements, forms, and procedures. Mistakes in eligibility determination, petition preparation, or agency notification can lead to the denial of the expunction.

Critically, a denied petition can result in the loss of filing fees and, more importantly, the loss of the right to expunge that specific case in the future, even if it later becomes eligible. This is often referred to as the "one shot" rule. The "one shot" rule imposes a high penalty for procedural errors, reinforcing the practical necessity of legal expertise and potentially creating an inequitable system where access to justice depends on a petitioner's ability to navigate complex legal minutiae flawlessly. Given these high stakes, legal professionals are strongly recommended to ensure proper eligibility assessment, accurate documentation, correct filing, and comprehensive agency notification, significantly increasing the chances of a favorable outcome.

Recent Legislative Changes and Future Outlook (Effective 2025)

Texas expunction law is undergoing a significant transformation, with key legislative changes set to take effect in 2025. These updates aim to modernize the process, expand eligibility, and improve efficiency, reflecting an evolving societal understanding of the long-term impact of criminal records.

Overview of House Bill 4504 and Chapter 55A

House Bill 4504 (HB 4504) represents a fundamental revision of the Texas Code of Criminal Procedure, with substantial changes impacting the expunction of criminal records, effective January 1, 2025. This bill repeals the old Chapter 55 and replaces it entirely with the new Chapter 55A. Expunction of Criminal Records. This legislative shift towards expanded eligibility and automatic expungement, particularly for dismissed cases and acquittals, signals a policy pivot towards proactively clearing records for individuals who were not convicted, reducing the burden on petitioners and streamlining the "fresh start" process.

Key updates introduced by HB 4504 and Chapter 55A include:

• Expanded Eligibility: More misdemeanor offenses are now eligible for expungement. Additionally, certain non-violent felony offenses may now qualify for record sealing under specific conditions.
• Automatic Expungement: A significant new development is the introduction of automatic expungement for some dismissed charges and cases resulting in acquittal, meaning these records will be removed from an individual's history without requiring a formal petition. This is a major departure from the previous system where a petition was always required, indicating a legislative recognition that for clear-cut non-convictions, the state should take the initiative to clear records.
• Reduced Waiting Periods: In some cases, the waiting periods for expungement applications have been reduced, although specific details on which waiting periods are affected are not fully elaborated in the available information.
• Faster Processing Times: The Texas court system has implemented a more efficient digital processing system, aiming to reduce the time it takes for an expungement request to be approved.

Impact of C.S.S.B. 1667 (Effective September 1, 2025)

Complementing HB 4504, C.S.S.B. 1667, effective September 1, 2025, further aims to modernize the expunction process by improving administrative efficiency and access. This bill's focus on administrative and logistical improvements demonstrates a legislative commitment to addressing the practical friction points in the expunction process, ensuring that the legal right is supported by efficient procedural mechanisms.

Key provisions of C.S.S.B. 1667 include:

• Electronic Service: The bill makes electronic service of petitions and notices free to the filer and requires state and local agencies to accept it whenever possible.
• Standardized Fees: It establishes a standardized $25 fee per entity for non-electronic service, ensuring more predictable costs for petitioners and aiming to reduce mailing expenses.
• Indefinite Record Retention: A critical change allows clerks to retain expunction orders indefinitely, ensuring petitioners can always obtain copies if needed. This addresses the previous one-year retention limit, which often forced individuals to restart the expunction process if their original order was lost. The bill also requires the confidential maintenance of mental health orders related to expunctions.
• Federal Prohibited Person Information: Courts will retain federal prohibited person information regardless of expunction for specific audit and National Instant Criminal Background Check System (NICS) purposes.
• Streamlined Petition Contents: The bill prohibits listing agencies multiple times or including multiple contacts/addresses for different divisions within the same agency, aiming to reduce redundancy in the petitioning process.

Implications for Petitioners and the Legal Process

These legislative updates, particularly the combined effect of HB 4504 and C.S.S.B. 1667, signify a comprehensive legislative push to enhance access to justice and rehabilitation through record clearance. They reflect an evolving societal understanding of the long-term impact of criminal records on individuals' lives.

The updates aim to make it "easier than ever to clear your record in Texas". Expanded eligibility and the introduction of automatic expungement mean that a greater number of individuals may now qualify for a fresh start. Streamlined procedures, reduced filing fees, and faster processing times are intended to lessen the burden and waiting periods for petitioners. However, despite these improvements, the expunction process remains complex, and legal guidance is still strongly recommended to navigate the intricacies and ensure successful record clearance.

The table below provides a comparative overview of the key changes to Texas expunction law:

Area of Change	Pre-2025 (Chapter 55)	Post-2025 (Chapter 55A/HB 4504 & C.S.S.B. 1667)
Governing Statute	Chapter 55 Code of Criminal Procedure	Chapter 55A Code of Criminal Procedure
Eligibility	More restrictive	Expanded, more misdemeanors/some non-violent felonies
Automatic Expungement	No automatic expungement	Yes, for certain dismissed cases/acquittals
Processing Time	Manual, often slow	Faster digital processing
Filing Fees/Service	Variable, often high mailing fees	Electronic service free, $25 for non-electronic
Record Retention	Limited (60 days-1 year)	Indefinite retention

Common Misconceptions and Important Considerations

Despite the legal provisions for expunction, several common misconceptions persist, highlighting the need for clear information and careful navigation of the process.

Automatic Expungement Myth

A widespread misconception is that criminal records are automatically expunged after a certain period or upon dismissal of a case. This is generally untrue; arrest records typically remain on an individual's criminal background unless and until a petition for expunction is formally filed and granted by a court. While recent changes introduced by HB 4504 effective 2025 will introduce some automatic expungement for specific dismissed cases or acquittals, this is a new development for certain cases and not a universal rule. The general principle remains that proactive action is required to clear a record. The persistence of this myth, despite the legal reality, highlights a significant public information gap that the new automatic expungement provisions aim to bridge, albeit for a limited scope of cases.

Dismissed Cases Still Appear on Records

Even if a criminal case is dismissed, the associated arrest record will still appear on criminal background checks conducted by the Texas Department of Public Safety (DPS) and subsequently disseminated to third-party services. This reality underscores the severe collateral consequences of even a non-conviction, reinforcing the critical need for expunction to truly achieve a "fresh start" in practical terms. Many individuals mistakenly believe that a "dismissed" case means it is "gone" from their record. However, the arrest itself remains visible, which can pose significant hurdles for individuals seeking employment or housing. This necessitates expunction even for dismissed cases to truly clear the record from public view.

Waivers of Expunction

In some instances, particularly during plea negotiations, an individual may sign a waiver of expunction. This can make obtaining an expunction more difficult in the future. The existence of expunction waivers in plea agreements suggests a potential tension between the state's interest in plea efficiency and an individual's long-term rehabilitation prospects. While signing such a waiver does not necessarily render expunction impossible, it complicates the process. An attorney familiar with such waivers can explore available avenues for relief , emphasizing the critical role of defense counsel in advising clients on these long-term consequences.

"One Shot" Rule for Expunction Petitions

A critical consideration for petitioners is the "one shot" rule: an individual typically has only one opportunity to obtain an expunction for a specific case. If a judge denies a petition due to an error in the filings, an inaccurate eligibility date, or because the case does not yet qualify (e.g., still within the statute of limitations), the petitioner may permanently lose the right to expunge that specific case in the future, even if it subsequently becomes eligible. This rule imposes a high penalty for procedural errors, reinforcing the practical necessity of legal expertise and potentially creating an inequitable system where access to justice depends on a petitioner's ability to navigate complex legal minutiae flawlessly. This unforgiving aspect of the process highlights the critical importance of accuracy and legal expertise in the filing process.

Conclusion

The current expunction law in Texas, particularly with the significant legislative changes taking effect in 2025, represents a dynamic and evolving framework designed to offer individuals a pathway to a fresh start. Expunction provides the most comprehensive relief, aiming for the complete erasure of eligible criminal records, allowing individuals to legally deny past arrests. This stands in contrast to nondisclosure, which seals records from public view but retains access for law enforcement and specific governmental entities.

The transition from Chapter 55 to the new Chapter 55A of the Code of Criminal Procedure, driven by House Bill 4504, signifies a proactive legislative effort to modernize and streamline the expunction process. This includes expanded eligibility for more misdemeanor and certain non-violent felony offenses, the introduction of automatic expungement for specific dismissed cases and acquittals, and reduced waiting periods. Complementary legislation like C.S.S.B. 1667 further enhances efficiency by standardizing fees, promoting electronic service, and ensuring indefinite retention of expunction orders. These combined changes reflect a broader policy goal of reducing barriers to employment, housing, and social reintegration for a larger segment of the population, acknowledging the significant impact of criminal records on individuals' lives.

Despite these advancements, the expunction process remains inherently complex. The stringent eligibility criteria, the precise procedural requirements, and the "one shot" rule for petitions underscore the critical importance of legal counsel. While the state is moving towards a more accessible system, navigating the intricacies of the law effectively still necessitates specialized knowledge to ensure successful record clearance and avoid irreversible procedural missteps. The ongoing evolution of Texas expunction law demonstrates a continuous effort to balance individual rehabilitation with the state's need for public safety and administrative integrity.

For More Information See:

1. General Information - Expunctions & Nondisclosure Orders - Texas State Law Library, https://guides.sll.texas.gov/expunctions-and-non-disclosure
2. www.fortbendlibraries.gov, https://www.fortbendlibraries.gov/sites/default/files/2020-09/4.%20Expunctions%20and%20Nondisclosures%20in%20Texas%20%282015%29.pdf
3. CODE OF CRIMINAL PROCEDURE CHAPTER 55. EXPUNCTION OF CRIMINAL RECORDS - Texas Statutes, https://statutes.capitol.texas.gov/docs/CR/htm/cr.55.htm
4. CODE OF CRIMINAL PROCEDURE CHAPTER 55A. EXPUNCTION ..., https://statutes.capitol.texas.gov/GetStatute.aspx?Code=CR&Value=55A
5. CODE OF CRIMINAL PROCEDURE CHAPTER 55A. EXPUNCTION OF CRIMINAL RECORDS - Texas Statutes, https://statutes.capitol.texas.gov/Docs/CR/pdf/CR.55A.pdf
6. How Do I Expunge My Record? - Texas Senate, https://senate.texas.gov/members/d23/pdf/ExpunctionsAndTexasLaw.pdf
7. Expunction Petition - Arrest Records (Chapter 55) - Texas Justice Court Training Center, https://www.tjctc.org/.assets/texas-justice-court-training-center/texas-justice-court-training-center/updated-forms/criminal-procedure-forms/Petition%20-%20Expunction%20of%20Arrest%20Records%20Chapter%2055
8. Filing a PRO SE Expunction - City of Houston, https://www.houstontx.gov/police/expunction/
9. Expunction & Nondisclosure - Commonly Requested Legal Forms - Texas State Law Library,https://guides.sll.texas.gov/legal-forms/expunction-nondisclosure
10. capitol.texas.gov, https://capitol.texas.gov/tlodocs/89R/analysis/html/SB01667S.htm

How Long Does the State Have to Bring a Criminal Case Against Me?

Texas law sets out the statute of limitations, the period during which formal charges must be brought against a defendant for most offenses. These time periods range from two years to over twenty years, and for some offenses there is no limitation period at all. The applicable limitation period depends on the particular offense that is alleged.

The various statutes of limitation mean that the state must present an indictment or information within said time period or prosecution will be time barred. The presentation of an indictment occurs when the grand jury has made its decision and the indictment is received by the court. Tex. Code Crim. Proc. Ann. Art. 12.06. The presentation of an information occurs when it has been properly filed in court. Tex. Code Crim. Proc. Ann. Art. 12.07. The limitations period is tolled while the case is pending after an information is filed or indictment issued. Tolling means that the time will not be counted against the limitations period.

Generally, the time period is measured based on the date the offense was committed. When computing the time period, the day on which the offense was committed and the day on which the charge was presented are excluded. Tex. Code Crim. Proc. Ann. Art. 12.04. Thus, the clock starts running the day after the offense was committed and is paused when the indictment or information is presented. Additionally, any time the defendant was absent from the state is excluded when computing the time period. Tex. Code Crim. Proc. Ann. Art. 12.05(1).

What Are the Time Periods in the Texas Statutes of Limitations?

TEXAS PERIODS OF LIMITATIONS FOR MISDEMEANOR OFFENSES

Texas law provides that for most misdemeanor offenses there is a standard period of limitations of two (2) years. Tex. Code Crim. Proc. Ann. arts. 12.02. The only exception is for Assault Family Violence allegations, for which the limitation period is 3 years. Thus, for any given misdemeanor charge, the State must bring prosecution within two years from the commission of the crime (or 3 years if the allegation is one of family violence).

TEXAS PERIODS OF LIMITATIONS FOR FELONY OFFENSES

There are several periods of limitations provided for the various felony offenses, as well as a catch all time period of three years for all other felonies not specifically provided for. Tex. Code Crim. Proc. Ann. art. 12.01(7). See the chart below for the time period provided for certain major felony offenses.

PERIOD OF LIMITATIONS	FELONY OFFENSE
(A) Five Years   See Tex. Code Crim. Proc. Ann. art. 12.01(4).	Theft or Robbery, Kidnapping or Burglary (except as provided in (E)), Injury to Elderly or Disabled (unless 1st Degree), Abandoning or Endangering Child, and Insurance Fraud
(B) Seven Years   See Tex. Code Crim. Proc. Ann. art. 12.01(3).	Money Laundering Credit Card or Debit Card Abuse Medicaid Fraud False statement to obtain property or credit; and Fraudulent Use or Possession of Identifying Information
(C) Ten Years   See Tex. Code Crim. Proc. Ann. art. 12.01(2).	Theft of any estate by an executor, administrator, guardian, or trustee Theft by a public servant of government property Forgery or uttering, using, or passing of a forged instrument Sexual assault (except as provided in (F)), Injury to an elderly individual or disabled individual (if punishable as a first degree felony), and Arson
(D) Ten Years from the Victim's 18th Birthday   See Tex. Code Crim. Proc. Ann. art. 12.01(6).	Injury to a Child
(E) Twenty Years from the Victim's 18th Birthday   See Tex. Code Crim. Proc. Ann. art. 12.01(5).	Sexual Performance by a Child younger than 17 Aggravated Kidnapping with intent to sexually abuse a victim younger than 17, and Burglary of a Habitation with the intent to sexually abuse a victim younger than 17
(F) No Time Limitation   See Tex. Code Crim. Proc. Ann. art. 12.01(1).	Murder or Manslaughter Leaving the Scene of an Accident which Resulted in Death Indecency with a Child Sexual Assault or Aggravated Sexual Assault of a Child Continuous Sexual Abuse of a Child Sexual Assault if DNA testing indicated that the perpetrator’s identity could not be readily determined Sexual Assault if there is probable cause to believe that the defendant has committed the same or similar offense against 5 or more victims
(G) Three Years   See Tex. Code Crim. Proc. Ann. art. 12.01(7).	All other Felonies. Misdemeanor Assault Family Violence.

Periods of Limitations for Aggravated Offenses, Attempt, Conspiracy, and Solicitation

The limitation period for criminal attempt is the same as provided for the offense attempted. Tex. Code Crim. Proc. Ann. art. §12.03(a). Additionally, the limitation period for criminal conspiracy or organized crime is that of the most serious offense that is the subject of the conspiracy or organized crime. §12.03(b) Further, the limitation period provided for criminal solicitation is the same as the period of the felony solicited. §12.03(c). Finally, an aggravated offense has the same period of limitation as provided for the primary crime. §12.03(d)

In conclusion, these limitations are set out to protect defendants from having to face charges where evidence is stale and witnesses are unavailable due to the long period of time the State has waited to bring prosecution. The Texas Code of Criminal Procedure is very specific in how it has laid out the periods of limitations so that there will be no question as to the time period for a particular offense and how that time period should be computed.

*Note: The above provided chart is not all-inclusive but instead focuses on only some of the major felony offenses. An exhaustive list can be found in Section 12.01 of the Texas Code of Criminal Procedure.

When you think about the Christmas season, you probably think about family time, presents, good food, and celebration. We think about those things too, but as criminal defense attorneys, we also think about the reasons that some of our clients get arrested during the holiday season. For this article, we took a look at the last 8 years of holiday season arrests (for clients that we represented) and compiled an (anecdotal) list of the top 5 reasons that folks get arrested during the Christmas/New Year's season. Our goal is that this list will serve as a warning, so that your holiday season can be filled with the good stuff, rather than jail, bail, and calls to our office. Here goes:

5. Shoplifting

Many retailers slash their prices and offer steep discounts in the weeks leading up to Christmas and even bigger discounts after Christmas, but we have yet to see any retailer offer the "five finger discount" for their merchandise. Regardless, we see plenty of shoplifting cases during the Christmas season, making it our #5 reasons that people get arrested during Christmas. Depending on the regular price value of the item (not the discounted price), shoplifting theft charges can range from misdemeanors to felonies. Learn more about Theft law in Texas here.

4. Package Theft

In a similar vein to shoplifting, our #4 reason for holiday arrests is package theft. Many shoppers choose the convenience of online shopping and have their Christmas purchases delivered right to their front door. Some people see this as an easy target, following behind UPS or FedEx trucks to steal those would-be Christmas gifts from the front porch. However, with the increase in doorbell cameras, it is getting easier to catch the porch pirates in the act. Further, some law enforcement agencies have begun using dummy packages to bait thieves into getting caught. Package theft can range from a misdemeanor to a felony depending on what unknown treasure lay inside the brown box.

3. Air Travleing Trouble (Guns, Drugs, and Intoxication)

Going to visit grandma can require air travel for many families. This means that thousands more people than usual flood through DFW Airport between Thanksgiving and New Year's. It matters not from where these travelers hail. From Maryland to Oregon to France, if a person is arrested at DFW Airport, their case will be filed in Tarrant County, Texas and they will have to travel back to DFW to attend court. During the holidays, we see a surge in airport arrests when people bring items into the airport that are not allowed or when folks over indulge during a layover. Specifically, we see the following airport arrests:

• • Airport Gun Charges (as of 2022 and changes in the law, this has mostly subsided);
  • Possession of a Controlled Substance (CBD oil, THC oil, marijuana, etc.); and
  • Public Intoxication.

Even if the state from which a traveler is coming has legalized marijuana and the state to which they are traveling has legalized marijuana, if they are caught possessing marijuana in the airport, they will be arrested and charged. The combination of airport gun arrests, airport drug arrests, and airport public intox arrests make these types of cases our #3 reason for holiday arrests.

2. Assault Family Violence

In the movie Christmas Vacation, Clark Griswold showed an enormous amount of restraint when his extended family pushed him to the limit (especially Cousin Eddie), but not everyone is blessed with such a cool head. Christmas time brings added stressors into the family environment that can sometimes lead to verbal or physical altercations between family members, so much so, that these arrests rank at #2 in our book. Depending on the nature of the assault, a domestic violence arrest can be charged as a misdemeanor or a felony. Learn more about Family Violence under Texas law.

1. Driving While Intoxicated

With all of the Christmas and New Year's parties and the increase in No Refusal Weekends, it is not hard to guess that DWI arrests are #1 on our list. Driving While Intoxicated in Texas can range from a misdemeanor (if it is a first or second offense) to a felony (if there is a child in the car or if the person arrested has been convicted of DWI twice in the past). Our advice is to plan ahead and do not even take your car to a Christmas party when you plan to drink. Catch a ride from a friend or take an Uber or Lyft. That would be a lot cheaper than hiring an attorney and a lot less hassle too. Learn more about Texas DWI law here.

We Hope You Never Need Us, But We're Here if Your Do.

We wish you a very merry Christmas and a happy New Year. As always, we hope you never need us to represent you or one of your loved ones for a criminal offense. This is even more true during the Christmas season. Hopefully this list will help you avoid trouble that looms during the holiday season. If you do happen to need us, we are only a phone call away at (817) 993-9249.

Do Not Lose Your Liberty on Independence Day

Independence Day is right around the corner. You will probably start seeing the notices spread across social media from local police departments, warning that setting off fireworks (including sparklers) is illegal inside of city limits. We know that you're probably going to do it anyway (so are we), but we wanted to let you know what Texas law provides regarding fireworks on the 4th of July.

Texas Fireworks Law | Are Sparklers Illegal Inside of City Limits?

While state law in Texas permits possessing and using fireworks, it’s important to note that where and when a person can possess them is still highly regulated. There are State laws that limit the use and display of fireworks but use is predominantly regulated by way of city ordinances.

Specifically, under state law, a person may not:

1. Explode or ignite fireworks within 600 feet of any church, a hospital other than a veterinary hospital, an asylum, a licensed child care center, or a public or private primary or secondary school or institution of higher education unless the person receives authorization in writing from that organization;
2. Sell at retail, explode, or ignite fireworks within 100 feet of a place where flammable liquids or flammable compressed gasses are stored and dispensed;
3. Explode or ignite fireworks within 100 feet of a place where fireworks are stored or sold;
4. Ignite or discharge fireworks in or from a motor vehicle;
5. Place ignited fireworks in, or throw ignited fireworks at, a motor vehicle;
6. Conduct a public fireworks display that includes Fireworks 1.3G unless the person is a licensed pyrotechnic operator;
7. Conduct a proximate display of fireworks that includes Fireworks 1.3G or Fireworks 1.4G as defined in NFPA 1126 Standards for the Use of Pyrotechnics Before a Proximate Audience unless the person is a licensed pyrotechnic special effects operator and has the approval of the local fire prevention officer; or
8. Sell, store, manufacture, distribute, or display fireworks except as provided by this chapter or rules adopted by the commissioner under this chapter.

Texas Occupations Code, Subchapter F, Sec. 2154.251

These violations are Class C Misdemeanors, which can be punishable by a fine up to $500.

Fireworks licensing violations are Class B Misdemeanors which can result in a jail term up to 180 days and a fine not to exceed $2,000.

Fireworks City Ordinances | Local Fireworks Rules in Fort Worth, Keller, and Southlake

In addition to State law, most cities in Texas regulate the use and display of fireworks by way of specific city ordinances. For example, Fort Worth, Texas has enacted an ordinance making the sale, discharge or possession of fireworks within the incorporated city limits a Class C misdemeanor punishable by up to a $2,000.00 fine. Similar ordinances exist in Keller and Southlake, and most other Texas cities.

Before your celebrations, it’s always best to review the above regulations under the Texas Occupations Code and check your local city ordinances online to ensure that you're legally possessing, using and displaying fireworks.

Recording Conversations Without Consent in Texas | Wiretapping Laws

With roadway cameras at nearly every street corner, video surveillance in businesses, doorbell cameras on homes, web cams on computers, and recording capabilities on mobile phones – we must navigate carefully in a digital world. We’ve seen titillating news reports exposing a secret audio tape of a public figure having scandalous phone conversations, or video surveillance of questionable traffic stops that escalate in shocking fashion. You may have had a suspicious feeling that you were being recorded, or on the other hand, felt as if you needed to record a conversation with another for your own protection.

With privacy seemingly harder to come by as compared with days long past—what does Texas law say about recording conversations? Is it illegal to record a phone conversation with another person? What about in person?

The short answer is: YES, you can record a conversation with another person without that person's consent. But this answer requires more explanation.

Recording Phone Calls in Texas | Texas is a One-Party Consent State

Under Texas Law, it is a crime intercept or record any wire, oral or electronic communication without the consent of at least one party. The good news is that you count as one party and if you're recording then you have probably given yourself consent to record the conversation. Generally speaking, state wiretapping laws turn on whether the state is a one-party consent state. While some states require the consent of all of the parties to a conversation prior to recording, Texas permits the recording of telephone calls, so long as the consent of one of the parties is obtained. As stated, if you are one of the parties on the phone call, then you may consent to having your own conversation recorded—you need not alert the other party. Additionally, a parent may give vicarious consent to the recording of a child’s conversation if the parent has a good faith objectively reasonable belief that the recording is necessary for the welfare of the child.

However, if during a phone call there are multiple parties who are in different states, then be aware that other state laws may require pre-recording consent of all of the parties. In this scenario, if the recording party obtains consent from the other parties before the recording begins, then the recorder is not in violation of wiretapping laws.

See this link to learn more about the various state wiretapping laws.

Recording In-Person Conversations in Texas | Can I Record Someone Else's Public Conversation?

Texas law (Penal Code §16.02) does not permit you to record in-person communications when the parties have an expectation that such communication is not subject to interception (i.e. If there is a reasonable expectation of privacy). If you wish to record a conversation to which you are not a party, all of the parties must give consent before the recording device is turned on or there must be no reasonable expectation of privacy (e.g. If the recording is taken from your doorbell camera and the parties are standing on you doorstep). If you are a party to the conversation, record away.

Further, you are able to record in-person communication at a public place, like a mall food court or at a football game for example, where parties do not have the expectation of privacy. Remember—if you say it in a public place, within earshot of others who may overhear, you do not have an expectation of privacy in those statements. Generally, such statements may be recorded without violating that state’s wiretapping laws.

A Word of Caution of Recording Conversations in Texas

Please be aware that there are both federal and state wiretapping laws that may limit your ability to making recordings of telephone calls or in person conversations. This article addresses state wiretapping laws in Texas only. Additionally, if a person has violated a state or federal wiretapping statute, he may be both charged criminally and be sued civilly by the damaged party.

Further, while a person may have successfully recorded a conversation under state and federal wiretapping laws, the act of disclosing the recording to other third parties could be, in and of itself, punishable criminally or civilly under other legal theories (such as slander, for example).

If you are faced with a wiretapping charge, or have questions about wiretapping, please contact an attorney who will address both the state and federal regulations as they are related to the facts of your specific case. Wiretapping charges are potentially serious felonies that could land a person in jail or prison, with fines ranging from $200 to $10,000. If you are faced with charges related to wiretapping in Texas, please contact our offices at (817) 993-9249 for a consultation.

Summary on Texas Wiretapping

• A person can record a conversation to which you are a party in Texas without violating wiretapping laws, so long as the other party is in a “one party consent” state.
• A person can record a conversation (to which he is not a party) if one of the participants gives him permission.
• A person can record a conversation when, in a public setting, the participants do not have a reasonable expectation of privacy.
• It is almost always illegal to record a phone call or private conversation to which one is not a party, does not have consent from at least one of the parties, and could not naturally overhear the conversation.

This article is for educational purposes only and should never be substituted for legal advice.

Can I apply for an SBA Loan if I have a criminal history?

Countless small businesses have been impacted by the COVID-19 pandemic. The US Government has several different loan programs offered through the Small Business Administration aimed at helping small business get through the crisis and maintain jobs for their employees. Many of the SBA loan programs for the COVID-19 crisis can be found on the SBA website COVID-19 section.

One of the questions that we have received during the last couple of weeks is whether a person with a criminal history can apply for an SBA loan. The answer is...it depends. It depends on the nature of the criminal offense.

What will disqualify me from applying for an SBA loan?

When it comes to criminal history, the following will disqualify a company and make it ineligible for SBA assistance.

If an owner of the company (who owns 20% or more) answers YES to any of the following questions taken from the SBA application, then the company is NOT eligible to apply for SBA assistance:

• Are you currently incarcerated?
• Have you been adjudicated for a felony in the preceding 5 years? This includes
  • Felony conviction;
  • Plea of guilty to a felony offense;
  • Plea of nolo contendere (no contest) to a felony;
  • Participating in a pre-trial diversion program for a felony offense;
  • Probation or Deferred Adjudication for a felony offense.

• Are you currently on probation for a felony or a misdemeanor?
• Are you currently on parole?
• Are there pending criminal charges against you that have not yet been adjudicated (felony or misdemeanor)?

*NOTE: There is also a question on the Economic Injury Disaster Loan that asks whether an applicant has been arrested (even if the charge was dismissed) for any criminal offense (other than a minor motor vehicle violation). It is unclear whether an arrest by itself is a disqualifier or just a point of inquiry.

If a 20% (or more) owner answers YES to any of those questions, then the company will not even be able to complete its application for SBA assistance.

In the past, it seemed that the SBA was only concerned with felony criminal history (see 13 CFR 120.110), but the new applications for the COVID relief do not distinguish between felonies and misdemeanors when it comes to either active probationers or individuals with pending charges.  This is especially difficult for individuals that have a pending criminal charge to which they have pleaded not guilty and not yet received their day in court. To sink their business while at the same time presuming them innocent is not in keeping with the spirit of the presumption itself.

Please be reminded that it is a federal offense to falsify a loan application, so please don't do that.

Paycheck Protection Loan Application

Economic Injury Disaster Loan

Texas Legal Consequences During the Coronavirus Pandemic

With the declaration of a state of disaster in Texas by Governor Greg Abbott on March 13,2020 comes some new consequences that Texas citizens need to be aware of.

We previously posted a blog addressing enhancements that have gone into place for certain criminal offenses. But, there are also new laws activated as a result of state, local and interjurisdictional emergency management plans.

Broadly speaking, Texas Government Code (TGC) 418.173 establishes a penalty for citizens failing to comply with emergency management plans.

Specifically, TGC 418.173 states:

(a)  A state, local, or interjurisdictional emergency management plan may provide that failure to comply with the plan or with a rule, order, or ordinance adopted under the plan is an offense.
(b)  The plan may prescribe a punishment for the offense but may not prescribe a fine that exceeds $1,000 or confinement in jail for a term that exceeds 180 days.

Most local Texas governments have already established emergency management plans. County Judges in Dallas and Austin, for example, have published their Orders regarding these plans on their local websites and are regularly amending them.

The Emergency Order for Tarrant County can be found here.

It’s important that citizens know that with the disaster declaration in effect, violation of these Orders can result in a person being arrested. For practical purposes, that means that if local government is limiting community gatherings and business closures, a violation of those Orders could result in an arrest.

Information coming from our local government is changing on almost a daily basis now. Check with your local jurisdiction for their emergency management plans and be aware of the consequences of violating those plans.

There are a number of special powers and provisions established with the declaration of a statewide emergency effecting many different areas of law. The full text of the extent of those can be found in Chapter 418 of the Texas Government Code.

On March 13, 2020, Governor Greg Abbott declared a state of disaster in Texas in response to the COVID-19 pandemic. For the purposes of criminal law in Texas, that disaster declaration triggered the provisions of Texas Penal Code (TPC) 12.50.

What are the Criminal Law Implications During a State of Disaster?

In general, TPC 12.50 states that for the offenses listed below, if committed during the declaration of a state of disaster, the punishment level for these offenses is increased to the next higher category for that offense. For example, if a Theft charge would normally be punished as a Class B misdemeanor (0 - 180 days in jail and up to $2,000 fine) then it would be increased to a Class A misdemeanor (0 - 365 days in jail and up to $4,000 fine) if it is committed during the time of the declared disaster.

Specifically, 12.50 applies to the following offenses:

• Assault and Domestic Violence (TPC 22.01);
• Arson (TPC 28.02);
• Robbery (TPC 29.02);
• Burglary (TPC 30.02);
• Burglary of Coin-operated or Coin Collection Machines (TPC 30.03)
• Burglary of Vehicles (TPC 30.04);
• Criminal Trespass (TPC 30.05); and
• Theft (TPC 31.03)

TPC 12.50 is limited by the following provisions:

For the offenses of Assault, Burglary of Coin-operated/Coin Collection Machines, Burglary of Vehicles, Criminal Trespass or Theft, if the offense committed would normally punished as a Class A misdemeanor, then during the emergency declaration the minimum term of confinement is increased from 0 to 180 days in a county jail.

For the offenses of Arson, Burglary, and Criminal Trespass, if the offense committed would normally be punished as a First Degree Felony, then there is no enhancement.

Defining “Recklessness” Under the Texas Penal Code

There are some criminal offenses that require the state the prove that the defendant acted “recklessly” or with “criminal recklessness.” In a colloquial sense, we (including prosecutors) often think of recklessness as another word for carelessness, but it actually has a specific definition in the Texas Penal Code.

Defining “Recklessness,” Tex. Penal Code Section 6.03(c) states that “a person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist, or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint."

What Does the Texas Court of Criminal Appeals Say About Recklessness?

Unpacking the legal standard of recklessness, The Texas Court of Criminal Appeals reasons that...

“Criminal recklessness must not be confused with (or blended into) criminal negligence, a lesser culpable mental state.” Williams v. State, 235 S.W.3d 742, 751 (Tex. Crim. App. 2007). “Criminal negligence depends upon a morally blameworthy failure to appreciate a substantial and unjustifiable risk while recklessness depends upon a more serious moral blameworthiness – the actual disregard of a known substantial and unjustifiable risk.” Id.

Criminal negligence and recklessness differ from one another only in terms of mental state:

• Criminally negligent defendant “ought to be aware” of a substantial and unjustifiable risk;
• Reckless defendant is subjectively aware of an identical risk but disregards it

The two prongs of gross negligence or recklessness are:

• Subjectively, the defendant must have actual awareness of the extreme risk created by his or her conduct.
• Objectively, the defendant’s conduct must involve an extreme degree of risk (the “extreme risk” prong is not satisfied by a remote possibility of injury or high probability of minor harm, but the likelihood of serious injury to the plaintiff).

Reckless conduct...

• Is the conscious disregard of the risk created by the actor’s conduct;
• Mere lack of foresight, stupidity, irresponsibility, thoughtlessness, ordinary carelessness, however, serious the consequences may be, do not suffice to constitute criminal recklessness;
• Criminal recklessness is of a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects; or that entire want of care which would raise the presumption of a conscious indifference to consequences; or which shows such wantonness or recklessness or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others, which is equivalent to an intentional violation of them.

Recklessness: Texas Case Law Examples

Williams v. State, 235 S.W.3d 742 (Tex. Crim. App. 2007): The defendant was convicted after her children died in an accidental house fire while her boyfriend was babysitting. The defendant took the children to a house without working utilities and left them under her boyfriend’s care with a candle lit in their bedroom. The court held that there was legally insufficient evidence that defendant consciously disregarded a substantial and unjustifiable risk that the children would suffer serious bodily injury in a house fire. The court also said that the defendant’s stupidity did not constitute reckless disregard. The defendant was not criminally responsible for the result

Mills v. State, 742 S.W.2d 831, 1987 Tex. App. LEXIS 9214 (Tex. App. Dallas Dec. 18. 1987, no writ): The defendant’s conviction was upheld where circumstantial evidence supported the conclusion that defendant placed a child in a tub of hot water. The Court found that the jury could reasonably have found defendant acted recklessly with regard to that child’s care in violation of Tex. Penal Code § 6.03(c).

Ehrhardt v. State, No. 06-02-00208-CR, 2003 Tex. App. LEXIS 7248 (Tex. App. Texarkana Aug. 26, 2003): Where the evidence in an assault trial showed defendant struck the victim in the face, the court found that the defendant was reckless as to whether her conduct would result in bodily injury.

What is Criminal Negligence in Texas?

In Texas, there are some criminal offenses for which a person can be liable if they acted with “criminal negligence.” When most people think of “negligence,” they think of a civil standard used in lawsuits for money damages. But criminal negligence, the courts have reasoned, is different from ordinary civil negligence.

Section 6.03(d) of the Texas Penal Code states that “a person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”

How does Criminal Negligence Differ from Civil Negligence in Texas?

Civil or simple negligence means the failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would not have done under the same or similar circumstances. Montgomery v. State, 369 S.W.3d 188, 193 (Tex. Crim. App. 2012). Conversely, conduct that constitutes criminal negligence involves a greater risk of harm to others, without any compensating social utility, than does simple negligence. Id. The carelessness required for criminal negligence is significantly higher than that for civil negligence; the seriousness of the negligence would be known by any reasonable person sharing the community’s sense of right and wrong. Id. The risk must be substantial and unjustifiable, and the failure to perceive it must be a gross deviation from reasonable care as judged by general societal standards by ordinary people. Id.

For example: The Texas Court of Criminal Appeals has held that criminally negligent homicide requires not only a failure to perceive a risk of death, but also some serious blameworthiness in the conduct that caused it (i.e., risk must be “substantial and unjustifiable,” and the failure to perceive that risk must be a “gross deviation” from reasonable care).

In finding a defendant criminal negligent, a jury is determining that the defendant’s failure to perceive the associated risk is so great as to be worthy of a criminal punishment. The degree of deviation from reasonable care is measured solely by the degree of negligence, not any element of actual awareness. Whether a defendant’s conduct involves an extreme degree of risk must be determined by the conduct itself and not by the resultant harm. Nor can criminal liability be predicated on every careless act merely because its carelessness results in death or injury to another.

Case Law Examples of Criminal Negligence Standard in Texas

McKay v. State, 474 S.W.3d 266 (Tex. Crim. App. 2015): The Court of Criminal Appeals holding insufficient evidence of criminal negligence to support Defendant’s conviction for injury to a child after he spilled hot water on the two-year-old child while he was in the kitchen, because there was no evidence that Defendant failed to perceive a substantial and unjustifiable risk to the child. There was no showing that the child was often underfoot or that defendant knew the child could likely be under his feet while moving around in the kitchen.

Queeman v. State, 520 S.W.3d 616 (Tex. Crim. App. 2017): The Court of Criminal Appeals holding insufficient evidence to support defendant’s conviction of criminally negligent homicide because the evidence presented does not show that Defendant’s failure to maintain a safe driving speed and keep a proper distance from other vehicles was a gross deviation from the standard of care that an ordinary diver would exercise under all the circumstances as viewed from Defendant’s standpoint at the time of his conduct.

Tello v. State, 180 S.W.3d 150 (Tex. Crim. App. 2005): The Court of Criminal Appeals upheld Appellant’s criminal negligent homicide conviction reasoning that Appellant should have perceived a substantial and unjustifiable risk of death from using a faulty trailer hitch without safety chains on a public road. The homemade trailer unhitched from Appellant’s truck and killed a pedestrian.

Unlawful Carrying of a Weapon at an Airport in Texas

We love our guns in Texas. After all, those licensed to carry a handgun can now choose to conceal the handgun or wear it on their hip like in the old west. But carrying a handgun comes with its risks. Many places are designated as “off limits” for handguns. Chief among them is the airport. And everyday, well-meaning folks forget about their trusty handgun when they pack their bags and head to DFW International Airport or Love Field, only to be reminded by a less-than-friendly TSA agent as they attempt to pass through security. In fact, Texas is the #1 state for airport gun seizures in the country (and DFW International Airport leads the way in Texas).

 

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What Can Happen if I Accidentally Bring a Gun Through Security at DFW Airport or Love Field Airport?

Generally, if you carry a firearm through the security checkpoint at an airport, you can be detained and arrested. Carrying a firearm, either on your person or in your carry-on luggage, is a violation of Texas Penal Code Section 46.03. The detention and arrest could take several hours and will likely cause you to miss your flight as you move through the process. The DFW Airport or Love Field Police will also confiscate your handgun. If you are arrested for bringing a handgun to the airport, your case will be filed with the Tarrant County District Attorney (for DFW Airport case) or Dallas County District Attorney (for Love Field cases).

How Serious is an Arrest for Bringing a Firearm to the Airport in Texas?

Depending on how the authorities choose to proceed, you will likely be charged with 3rd Degree Felony. A 3rd Degree Felony carries a range of punishment from 2-10 years in prison and a fine up to $10,000. The Tarrant County DA typically files the case as a 3rd Degree Felony, while cases that originate in Dallas Love Field Airport usually wait for Grand Jury review before they are filed.

What Should I Do After I am Arrested for an Airport Gun Charge?

After you post bond and are released from custody, you need to hire a lawyer to help defend you on the charges. You should also consider signing up for a local gun safety course so that you can demonstrate that you understand the severity of your mistake and are taking steps to ensure that it does not happen again. Other than that, follow the advice of your attorney. Do not attempt to get your gun back. Your lawyer can help you do that with a court order, if appropriate, once the case is closed.

 

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I Have an LTC (CHL). Are There Any Exceptions for Me?

Yes. In 2015, the Texas legislature added some language to Section 46.03 to provide for LTC holders who accidentally forgot about their weapon. Section 46.03 now provides:

(e-1) It is a defense to prosecution under Subsection (a)(5) that the actor: (1) possessed, at the screening checkpoint for the secured area, a concealed handgun that the actor was licensed to carry under Subchapter H, Chapter 411, Government Code;  and (2) exited the screening checkpoint for the secured area immediately upon completion of the required screening processes and notification that the actor possessed the handgun. (e-2) A peace officer investigating conduct that may constitute an offense under Subsection (a)(5) and that consists only of an actor's possession of a concealed handgun that the actor is licensed to carry under Subchapter H, Chapter 411, Government Code, may not arrest the actor for the offense unless: (1) the officer advises the actor of the defense available under Subsection (e-1) and gives the actor an opportunity to exit the screening checkpoint for the secured area;  and (2) the actor does not immediately exit the checkpoint upon completion of the required screening processes.

So, basically, they are going to give you a chance to leave the secured area as soon as your mistake is realized. They cannot arrest a valid LTC holder unless the person refuses to leave the secured area immediately. There is no such exception for non-LTC holders. Licensed concealed firearm holder from other states should also be given the same opportunity to leave the secured area immediately in order to avoid arrest.

How Can I Lawfully Carry a Firearm on a Flight?

To carry a firearm on a flight, you must place the firearm in your checked baggage and declare it at the time you check your bags. Also, you should check the TSA guidelines before packing to ensure that you follow all of the rules and regulations.

TSA Sent Me a Demand for Money After I was Arrested. What Should I Do?

The law allows for TSA to send a civil demand letter for money damages. TSA officials consider the “severity” of your violation and then send a demand for money within the range that they consider appropriate. They will typically allow for your to pay less than the demanded amount if you pay quickly.

*See this sample TSA Civil Demand Letter.

You may pay the full demand, file a written response, or contact TSA to see if you can work out an arrangement. We have been able to help our clients pay less than what is demanded, but every case is different.

Will I Receive a Criminal Conviction on My Record For Accidentally Bringing My Gun to the Airport?

It depends. Many of our clients that were charged with Unlawfully Carrying a Weapon in the airport have had their cases dismissed. In fact, most have had their cases dismissed. But again, every case is different. The key is to contact an attorney right away so that your rights may be preserved throughout the criminal justice process.  Our team regularly handles airport gun cases arising out of DFW International Airport or Love Field Airport. We have offices in Keller and Fort Worth and offer free consultations.

 

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