News and Insights

Tarrant County No Refusal Period for the Christmas and New Year's Holidays

Tarrant County typically implements a No Refusal period during major holidays.  Being in the Christmas spirit, we thought that our No Refusal warning would be better if it rhymed.  Enjoy our Christmas No Refusal poem.

Twas the night before Christmas, the police are all out, Searching for drunk drivers that might be about. They'll be near the parties at restaurants and taverns. They'll pull your car over for bizarre driving patterns. They'll give the field test, "walk the line, heel to toe," And if you misstep, to the pokey you'll go. They'll ask you to blow in the breath test device, To see how much eggnog you've had on this night. And if you refuse, to a magistrate they'll dash, To get a search warrant as quick as a flash. So take an Uber this Christmas, a lesser price you'll pay. Don't drink and drive on this No Refusal Holiday.

Under Section 261.101 of the Texas Family Code, persons are required to report if they have cause to believe that a child’s physical or mental health or welfare is being or has been adversely affected by abuse or neglect. The report is to happen immediately (or within 48 hours if the reporting person is a professional). The law further grants “immunity” to the person who reports or assists in the investigation if that person had “good faith” when they made the report.

What is a “Good Faith” Report of Child Abuse or Neglect?

Put simply, a “good faith” report is an honest and sincere report. The law wants to encourage folks to report so that the State can investigate and ensure that children are not being abused or neglected. However, falsely (or without good faith) reporting child abuse to CPS or other agencies is not to be used as an act of retaliation or aggression toward others. A false report damages the child’s welfare in itself because the child will be subjected to an investigation where none should have been pursued. Unfortunately, we have seen this occur in the context of highly contested family law cases and in some criminal cases as well. More recently, there were allegations of a false report made to smear a political opponent.

What are the Legal Penalties for Falsely Reporting Child Abuse or Neglect in Texas?

Section 261.107 provides the civil and criminal penalties associated with falsely reporting child abuse in Texas. This section provides that “a person commits an offense if, with the intent to deceive, the person knowingly makes a report…that is false.”

Criminal Penalty for False Report

Knowingly making a false report of child abuse or neglect in Texas is a State Jail Felony offense. The punishment range for this offense is 180 days to 2 years in a State Jail Facility and a fine up to $10,000. Further, if a person has been previously convicted of this same offense, a second offense is a Third Degree Felony which subjects the person to a prison term of 2 years up to 10 years.

Attorney’s Fees Reimbursement for the False Report

As a monetary penalty in connection with the criminal case, the court shall order any person that is convicted of making a false report to pay the reasonable attorney’s fees incurred by the person against whom the report was originally made.

Civil Penalty for False Report

The Family Code further provides that any person who engages in false reporting is liable to the State of Texas to pay a civil penalty of $1,000. The Texas Attorney General is responsible for bringing the action to recover the civil penalty.

What Do I Do if Someone Has Made a False Report to CPS About Me?

First of all, contact an attorney. Depending on the posture of the investigation, you may need representation and advice to help get through the allegations, even if they are false. If, however, CPS has already ruled out the allegations and no criminal action has been pursue, you should first gather your evidence. We have been with people at the police station when they made reports that they had been targeted by false CPS allegations. It is our experience that the police agency will want you to bring proof that the report was false or made in bad faith. Simply because CPS closed out the investigation and determined that there was “No Reason to Believe” that the allegations were true does not necessarily mean that the reporting individual acted in bad faith. Collect your text messages, social media messages, witness statements, and other evidence before you go to the police station to claim that you were the victim of a knowing false report. Because the State wishes to encourage reporting, it is reluctant to punish a person who reports unless there is clear cut evidence that the report was made in bad faith.  Again, it is best to contact an attorney to help you through this.

When Governor Abbott signed the new DWI sealing law allowing for first-time DWI convictions to be non-disclosed, we began to pull records for our past DWI clients to see if any of them were eligible to have their conviction sealed. We filed the first DWI non-disclosure petition in Denton County as soon as the law took effect in September 2017. Our client was exactly the type of person for whom this new law was written:

• He was convicted of Class B DWI
• He successfully completed all terms of his probation
• More than 5 years have elapsed since he completed probation
• He had no other arrests on his record either before or after this DWI conviction

Sealing a DWI with a BAC Exceeding 0.15

One of the wrinkles in our client’s non-disclosure petition involved his blood alcohol content. The new DWI sealing law does not allow DWI convictions to be non-disclosed if the person was convicted of having a BAC over 0.15 (Texas Penal Code Section 49.04(d)). Our client’s case involved a BAC over 0.15, but he was not convicted under Section 49.04(d), but rather under 49.04 without any finding of a particular BAC. Our client’s DWI case happened before the legislature added paragraph (d) to the DWI law in 2011. So, as we saw it, our client still qualified for the new sealing law.

The DWI Non-Disclosure Hearing

Having alleged all of the qualifying conditions in our petition, there wasn’t much to the hearing when the time came. The Denton County District Attorney did not oppose our petition and we were able to take the proposed order to the judge without the need for an evidentiary hearing. We were prepared with the offense report, clerk’s records, and criminal history for our client, but none was needed. The judge gladly signed the order for non-disclosure and our client became the very first person in Denton County to have his DWI conviction non-disclosed.

Our client, who has only had this one encounter with the criminal justice system, was thrilled that this uncharacteristic mistake can finally be put behind him. We look forward to helping more people seal their DWI convictions in both Tarrant and Denton Counties. To see if you might be eligible to have your DWI case sealed, contact our team today at (817) 993-9249.

*If you are a Texas attorney and need assistance drafting a petition or order for a DWI non-disclosure, please reach out and we will be glad to help.

Lets face it, most of us have received a speeding ticket at some point in our lifetime. As a result, radar detectors have become commonplace for drivers that want to take preventative measures to avoid receiving a ticket. Such preventative measures bring up an important question: are radar detectors illegal? Can I get a ticket for using a radar detector?

In Texas, using a radar detector in a passenger vehicle is legal with certain restrictions.
Under federal law, however, using a radar detector in any commercial vehicle that has a weight of 10,000 pounds or more is strictly prohibited. Commercial drivers are treated as professional drivers, and thus, different laws apply to them. 49 C.F.R. § 392.71(a).

Is it Legal to Mount a Radar Detector on My Windshield?

Although radar detectors are legal in Texas, a person may still be ticketed if they have mounted their radar detector on their windshield, side, or rear window, and that placement obstructs or reduces the operator’s clear view. Whether or not the placement obstructs an operator’s view is up to the officer’s discretion. As such, to avoid the hassle all together, it is best not to mount your radar detector on your windshield.

Radar Detectors on Military Bases

According to the Department of Defense instructions, persons are strictly prohibited from using radar or laser detection devices on military bases. Department of Defense, DoD Instruction 6055.04, DOD TRAFFIC SAFETY PROGRAM pg. 12 (2013).

What is the Difference Between a Radar Detector and a Radar Jammer?

Over the years, many devices have been created to help prevent speeders from being ticketed. The most common device is the radar detector, which is designed to locate radar signals out of the air. However, radar detectors have become less effective due to advances in technology and policing. This has generated the need for LIDAR/RADAR jamming devices. Unlike the traditional radar detector, a jamming device transmits a radio frequency signal that blocks or otherwise interferes with the operation of police LIDAR/RADAR by overloading its receiver with false information. Jamming devices can cause significant damage to police equipment. Moreover, such devices not only prevent police from detecting the speed of the vehicle with the device, but also the vehicles in the surrounding area.

Accordingly, in 2011, Texas passed HB 1116 to prohibit a person from using, attempting to use, installing, operating, or attempting to operate a radar interference device in a motor vehicle operated by the person. A person who commits an offense under this section may be charged with a class C misdemeanor. Tex. Transp. Code § 547.616. A Class C misdemeanor is punishable by a fine not to exceed $500.

Takeaways....

While many people believe radar detectors promote unsafe driving, advocates refute this contention by explaining that radar detectors alert drivers to their speed and remind them to drive the speed limit, and thus, safer.

In conclusion, spending money on a radar detector may help you dodge a speeding ticket and possibly even drive safer, but there are other laws that may be implicated when using such devices.

Texas Court of Criminal Appeals Holds That An Out-of-State Conviction Cannot Be Used to Establish “Continuous Sexual Abuse” Under Texas Law

The Court of Criminal Appeals recently handed down an opinion regarding the use of an out-of-state act to support a conviction in Texas. The issue faced by the Court was whether the commission of an out-of-state aggravated sexual assault could support a conviction for continuous sexual abuse of a child under Texas law.

Lee v. State (Tex. Ct. Crim. App. 2017)

The Facts—The Trial Court Found Defendant Guilty of Continuous Sexual Abuse of a Child

In this case, Ronald Lee (Defendant) was convicted of continuous sexual assault of a child and the jury assessed a life sentence. During trial, evidence showed that Defendant committed aggravated sexual assault against his young stepdaughter twice, once in New Jersey and once in Texas. Both assaults were temporally separated by at least 30 days.

Texas Penal Code Section 21.02 prohibits the commission of two or more acts of sexual abuse over a specified time. Although committed in two separate states, the trial court permitted the evidence of both sexual assaults in New Jersey and Texas in order to convict Defendant.

The Court of Appeals Affirmed the Conviction, Holding that the Evidence was Legally Sufficient to Support the Conviction

On appeal, Defendant claimed that the evidence presented—the alleged act in New Jersey—was insufficient to support his conviction in Texas. The court of appeals held that because Defendant was charged and convicted under Texas Penal Code Section 21.01 for continuous sexual abuse, Texas has jurisdiction if part of the prohibited conduct element occurred in Texas. Further, the court determined that the location of the sexual abuse was not an element of the offense; thus, the State’s only obligation was to prove that the court of prosecution had venue—proper jurisdiction. As a result, because one of the alleged acts of sexual abuse occurred in Taylor County, the court of appeals said that the evidence was sufficient to prove venue.

The Court of Criminal Appeals Reforms the Judgment to a Lesser-Included Offense Conviction, Holding the Evidence was Legally Insufficient to Support the Original Conviction

Defendant appealed the appellate court’s decision to affirm his conviction. He argued that the alleged act of abuse in New Jersey was not sufficient proof required under the Texas Penal Code, which requires two or more violations of penal code sections. Each of these required offenses must be a violation of Texas law. Texas only has jurisdiction over an offense if either an action element or result element of the offense occurs inside the state. Because “act of sexual abuse” requires an act that is a violation of Texas law, Defendant’s act in New Jersey may not be considered one of the required offenses for a conviction under Section 21.02. The Court of Criminal Appeals determined that Texas had jurisdiction of continuous sexual abuse of a child, but the evidence in this case was insufficient to support the conviction because one of the acts was not a violation of Texas law.

When an appellate court finds that the evidence was insufficient to support a charged offense, but the jury found the defendant guilty of a lesser offense supported by sufficient evidence, then the appellate court must reform the judgment to reflect the lesser-included offense and remand for new punishment. In this case, the Court of Criminal Appeals concluded that the jury found Defendant guilty of aggravated sexual assault, which was the lesser-included offense, and remanded the case for a punishment hearing.

Judge Yeary's Concurring Opinion