Dallas Criminal Defense Lawyer Blog

Everyone is presumed innocent even cops accused of smuggling weed. But ask yourself this, where do drug dealers get the money to bribe law enforcement? Why would a cop risk his career and freedom to help them? The answer- pot prohibition profit$.

I'm amazed at how many Texans believe the negative externalities of prohibition (corruption, inter alia) are somehow caused by the drugs, or the people selling them.

When we choose to make pot illegal, we choose the corruption of our police officers. Think about it. Drug cartels have a billion dollar monopoly on the Texas cannabis market. What's easier than thinking up schemes to avoid getting caught and sending mules out who could get caught and lose their precious cargo?

Bribing law enforcement. Cops are a good investment for drug cartels.

DALLAS DALLAS (AP) -- The police chief of a small Texas town near the Mexican border faces federal charges of conspiracy to distribute marijuana and possession of marijuana.

The indictment unsealed Thursday charges Sullivan City Police Chief Hernan Guerra with one count of conspiracy to distribute more than 1,000 kilograms and four counts of possession with intent to distribute between 100 kilograms and 1,000 kilograms of marijuana. Guerra's attorney did not immediately return a message left by The Associated Press.

Guerra was arrested as part of a Justice Department probe called Project Deliverance, a 22-month investigation targeting Mexican drug trafficking organizations in the United States. More than 2,000 people were arrested, including 400 on Wednesday, when FBI agents raided Guerra's office.

He has been the police chief of the tiny community since 2004.

More and more Texans are starting to get it. Here's a group of concerned Texas parents calling for the regulation of the marijuana market to protect their children from drug dealers. They get it. Prohibition is the problem. We made a policy mistake and it's time to fix it. Or we can keep arresting cops corrupted by cartel cash. The choice is ours.

Every defendant who is stuck in county jail wants the same thing- out. Inevitably the defendant, or a friend or family member asks- "Isn't there some 90 day release law when a defendant is not indicted?"

Actually there is, and it's 17.151 of the Code of Criminal Procedure. I also call it the "speedy indictment law" because filing a 17.151 motion will often get your client indicted at the next grand jury.

In Kaufman county it's typical to see a defendant indicted right around the 90 day mark. ADAs are keenly aware of this deadline and loathe to have defendants use their get out of jail free card on serious charges.

Still, if the State is not "ready for trial" and you are stuck in the pokey for 15, 30 or 90 days, your lawyer can file a motion for your release under 17.151.

Art. 17.151. RELEASE BECAUSE OF DELAY.
Sec. 1. A defendant who is detained in jail pending trial of an accusation against him
must be released either on personal bond or by reducing the amount
of bail required, if the state is not ready for trial of the
criminal action for which he is being detained within:
(1) 90 days from the commencement of his detention if he is
accused of a felony;
(2) 30 days from the commencement of his detention if he is
accused of a misdemeanor punishable by a sentence of imprisonment
in jail for more than 180 days;
(3) 15 days from the commencement of his detention if he is
accused of a misdemeanor punishable by a sentence of imprisonment
for 180 days or less; or
(4) five days from the commencement of his detention if he
is accused of a misdemeanor punishable by a fine only.
Sec. 2. The provisions of this article do not apply to a
defendant who is:
(1) serving a sentence of imprisonment for another offense
while the defendant is serving that sentence;
(2) being detained pending trial of another accusation
against the defendant as to which the applicable period has not yet
elapsed;
(3) incompetent to stand trial, during the period of the
defendant's incompetence; or
(4) being detained for a violation of the conditions of a
previous release related to the safety of a victim of the alleged
offense or to the safety of the community under this article.
Sec. 3. Repealed by Acts 2005, 79th Leg., ch. 110, Sec. 2.

Drug possession cases tend to be factually simple scenarios. The State must prove that you had care, custody and control of X, and that X is illegal. We'll save possession for another day. Today let talk about proving X is marijuana.

In most cases drug DPS labs provide analyze the putative contraband and attempt to positively identify whatever it is the police sent them (you'd be shocked how often drugs aren't actually drugs). Not so much with marijuana.

By far, the most untested alleged controlled substance in Texas is weed. In an effort to convict the maximum number of otherwise law abiding citizens for the least cost many marijuana cases are brought without the benefit of drug testing.

Why? First, lab testing takes time and money. We are trying to run this drug war on the cheap. Second, most judges and juries will believe a cop when he says that he can instantly diagnose a green leafy substance as marijuana. "I recognized the distinct odor of burnt marijuana" is a common arrest report proclamation.

Most Americans who have attended college or any outdoor music event (ACL, any 311/Black Crowes concert) remember that pungent odor. When LEO tells a judge/jury that he smelled weed, they believe him. A question I've always had is-Is weed the only thing that smells like weed? I can't find a good answer to that question.

What I've learned is that LEO doesn't know, doesn't want to know, and most judges/jurors don't care anyway.

Beyond odor officers will also testify they can recognize weed on sight. I've always been a little more skeptical that LEO can visually diagnose a plant material pot. Why? Because of the way Texas defines "marihuana". For that, let's go to the Health and Safety Code.

(26) "Marihuana" means the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds. The term does not include:

(A) the resin extracted from a part of the plant or a compound, manufacture, salt, derivative, mixture, or preparation of the resin;
(B) the mature stalks of the plant or fiber produced from the stalks;
(C) oil or cake made from the seeds of the plant;
(D) a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake; or
(E) the sterilized seeds of the plant that are incapable of beginning germination

Some states define marijuana as THC. Texas has gone the botanist route and made this one subspecies verboten. When LEO says he saw, smelled, or used the Force to identify a substance as marijuana what he is really saying is that he can instantly diagnose plant material as Cannabis Sativa L. That's an amazing claim considering there are 170 plants in the Cannabaceae family, not to mention thousands of other "green leafy substances" to exclude.

Sativa, Indica, Ruderalis
Cannabis itself has 3 subspecies- indica, sativa, and ruderalis. I know what you're thinking. "Wouldn't that make C. Indica and C. Ruderalis legal? After all, the plain language of the statute only outlaws one subspecies."

Not so fast Willie. This is Texas and our State has a fetish for malum prohibitum prosecution. We don't let something like the wording of a law get in the way of a drug war. To that end our Court of Criminal Appeals rewrote the statute to seemingly include all subspecies- Williams vs. State, 524 S.W.2d 705. Go Go Gadget Judicial Activism!

Williams is a particularly disturbing case where the court cites the Equal Protection clause to expand police power. That is, it woudn't be fair to sativa defendants if we didn't arrest, prosecute, and incarcerate indica defendants. That's not equal protection, that's equal oppression. Moving on.

Seeds and Stems
You'll notice that the definition of marihuana excludes numerous items including oil, cake, salts and fibers etc from stalks, sterilzed seeds inter alia. Those items should not be included when the State weighs your weed. Defense lawyers refer to this as "removing seeds and stems". I've never seen a case involving oil, cakes, or salts; it just hasn't come up.

You can't count on the police or DPS lab to remove these items before weighing. They have no incentive to check because our reefer mad appellate courts shifted the burden of proof to the defendant. Nice.

It is the defendant's burden to establish the seeds were sterilized. Doggett v. State,530 S.W.2d 552, 554-56 (Tex. Crim. App. 1976); Nowling v. State, 801 S.W.2d 182, 184 (Tex. App.--Houston [14th Dist.] 1990, pet. ref'd); JohnJock v. State, 763 S.W.2d 918, 919-20 (Tex. App.--Texarkana 1989, pet. ref'd).

Weight issues comes up most often in cases that are close to a statutory limit. For example, over 4 ounces is a felony, but less than 4 is a misdemeanor. However, any usable amount up to two ounces is a class B so most joints are never reweighed.

DMN has the story of a Wylie video store owner who has his customers arrested for late videos. This piece is sure to generate some outrage in the comments section. "You shouldn't arrest someone for late DVDs!!!" etc. I'm not sure how arresting for late videos is any less repugnant that arresting college kids with joints, but I digress.

From DMN-

Bell went to a Collin County justice of the peace to file paperwork on dozens of his customers who were charged with theft of services.

The court issued arrest warrants for those who failed to pay up.

Some Video Hits customers paid fines of up to $870; others were arrested by the constable

The video rental vigilante is a high profile example of the merchant/law enforcement collections alliance. It's also a good introduction into the Hot Check Hustle taking place across our state.

Texas law allows merchants to have customers arrested for bad checks. The police are human repo men, county jail is our debtors prison, and the DA is the BigDebt collection firm.

How do insufficient funds become "theft" cases? Two ways.

The first is when you write a check on a closed account. No complaints from me there, that's fraud. Intent seems fairly obvious.

The second is where your checks bounces for insufficient funds. Intent seems to be lacking in this situation because it often is. How many of us have bounced a check? Were you intending to steal anything?

In our second scenario the merchant can mail you a letter with some magic language that demands payment. If you don't pay within 10 days the law creates a presumption that you intended to defraud the merchant.

Presumptions of intent are fraught with peril. They allow the DA to file a case and issue a warrant without doing any investigation. The result is that merchants drop off stacks of checks with affidavits and the DA files a case or sends a demand letter. It's law enforcement sans investigation. How do you think that turns out?

Like red light debt cameras this automated law enforcement system lacks the ability to distinguish the innocent (or indigent) from the criminal.

What's wrong with arresting for bad checks?
First, it's overkill. Checks over $20 are a class B misdemeanor. If you bounce a few $25 checks one month and can't pay them you are looking a arrest, bail, and prosecution with a possible 180 days in jail and $2,000 fine on each case.

Second we are in a recession, checks bounce, merchants (like me) who accept checks should accept the risk of non payment and adjust their policies. I've not been paid for work done (eg DWI dismissed and the check bounced). It hurt, it sucked, and I adjusted my policies accordingly. If I'm going to take non cash items, I accept that there is a degree of risk involved.

There are options available for those who still choose to accept checks. I investigated one of those instant check verification systems a while ago. If we are going to allow arrest for bad checks, we should require the merchant to exercise some due diligence in accepting checks.

Finally, there is no protection for identify theft victims. I've seen scores of cases where a check book was stolen, or someones ID was used fraudulently. The result is that victim of ID theft gets arrested (sometimes out of State) and prosecuted for a checks they didn't write. That's what happens when you presume intent and conduct no investigation.

Many DA's office will send a letter demanding payment prior to filing the case. This is all that stands between ID theft victims and wrongful arrest and prosecution. So check your mail.

Third, it's not equitable. If non payment is going to be a crime that why not make DTPA (consumer protection) violations a crime also? If you paid your hard earned money for a car, and it turns out to be a lemon your remedy is a lawsuit. Why not create a presumption of fraud and have the dealer arrested instead?

I think civil courts are best equipped to handle non payment. We should save the theft designation for actual intent to steal, not invent intent where it doesn't exist.

Did I mention DA across the State collect millions in hot check fees each year? The law creates a special hot check slush fund for DA's to spend on salaries for other "expenses" (Xmas parties).

DAs (who duty is supposed to be justice, not collections) have assumed the role of big debt law collections firms. Instead of merely harassing you over the phone, they throw you in jail until you pay. It's time to end the slush fund debtors prison injustice and only prosecute theft cases where there is actual evidence of theft.

I received a speeding citation last week on the notorious I-45 speed trap. Allegedly, I was going 73 in a 60. In my pre blogging days I would call the court and ask for deferred adjudication, pay the tax (fine) and move on.

However, the Google SEO gods demand constant sacrifices of content so I'm considering setting this case for trial and blogging the experience. I haven't completely committed to that endeavor just yet. The time obligation could be too great, and I may just give up and pay the fine. I also need to check and see if this is a court of record. That way if I have a trial and lose, I can appeal de novo and still get deffered or have another trial.

First, let's look at the laws regarding speeding in Texas. Most people think it is illegal to simply drive faster than the posted speed limit. While you can always be ticketed for driving over the speed limit, you may not be guilty of speeding. How's that? To chapter 545 of the Texas Transportation Code-

SUBCHAPTER H. SPEED RESTRICTIONS

Sec. 545.351. MAXIMUM SPEED REQUIREMENT. (a) An operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing.

So why do cops pull people over for speeding when there is no evidence of unreasonable or imprudent speed? That's where speed limits come in.

Sec. 545.352. PRIMA FACIE SPEED LIMITS. (a) A speed in excess of the limits established by Subsection (b) or under another provision of this subchapter is prima facie evidence that the speed is not reasonable and prudent and that the speed is unlawful.

Driving over the speed limit creates a rebuttable presumption that you were being unreasonable or imprudent. That is, the State has proven you were violating 545.351 by showing you drove over the speed limit. From that point it's up to you to show you were being reasonable and prudent. This allows cops to ticket you for going any amount over the speed limit, even though you may be able to beat the case at trial.

Trials have large opportunity costs so most people pay the fine and/or call and ask for deferred.

Probation can be tough for a lot of reasons. From failing drug tests, to failing to report, to missing a meeting there are dozens of ways to get your probation revoked. It has come to my attention that the revocation process is not well understood by probationers. Let me hit a few high points.

No Juries
A probation revocation hearing is always in front of a judge. You have no right to a jury trial.

Range of Punishment- How much time are you looking at?
Depends. If you plead for deferred adjudication then you are open for the entire range of punishment for your original offense. For example, if you are on deferred for a first degree felony you could anything from 5-99 years, or the judge could continue you on probation.

If you are on "straight" probation (non-deferred) then your maximum sentence has already been decided. Let's take a third degree felony with a 2 for 5 plea. You are sentenced to two years in jail, probated for five years. 5 years is your maximum sentence. The judge could give you less time, or you could work out a plea bargain for less time.

Beyond a reasonable doubt? Nope.
The State need not prove you violated probation beyond a reasonable doubt. Instead, it's a "preponderance of the evidence." What is POTE? 51%. That is, it's more likely than not, or the evidence is 51% in favor.

Failure to pay
The State wants its money and will revoke you for not paying fines, fees, and costs. Inability to pay is an affirmative defense that the defendant has to prove by a POTE.

New Charges
You are on probation and you get arrested again. First, you must report an arrest within 48 hours of release from jail. However, getting arrested is not enough to revoke your probation. The State must prove by a POTE that you committed a new offense.

If you get arrested call your attorney, and your PO, immediately.

Bond
Deferred probationers are entitled to bail. Word of this requirement has not spread to Kaufman county where felony probationers are almost always denied bail. The reason? Whoever typed the "recommended bond schedule" listed felony probation revocation cases as "no bond". Being entitled to bond isn't as great as it sounds. I've seen these bonds set at $200,000. Bond is not supposed to used for oppression, but we do it anyway.

If you are not on deferred no bond could be set, but you can still have a hearing to lower it. However, you are not entitled to bond.

Can I be reinstated?
Depends on the charge, and what county you are in. I have found that paying your fines and fees is a great place to start. The government loves money and they may sell you back some freedom for cash.

A better question may be "Should I be reinstated?" Some people suck at probation. You can't drink, use any drugs, or commit any new crimes. Also, you have to work, report, do community service, and take classes. It may be too much to handle for some. Many probationers choose to just sit out a sentence rather than complete another year or two of supervision.

I can't say I blame them. Our community supervision system almost guarantees failure. We put addicts on probation, and then act surprised when they test positive. We put the indigent on probation and then act when surprised the can't pay.

Thanks to the War on Drugs, a "tough on crime" lege, and pro conviction appellate courts Texas now has over 400,000 probationers, 25% more per capita than the average state. These probationers all have one thing in common- they don't want to be on probation. Luckily, probationers in Texas can petition the court for early termination of community supervision.

What cases are eligible for early termination?
All offenses are eligible except Penal Code Sections 49.04-49.08, Sex Offender offenses, and 3g offeneses.

49.04 -49.08 are intoxication offenses; driving while intoxicated, flying while intoxicated, assembling or operating an amusement ride while intoxicated (really, look it up).

Sex offender offenses are self explanatory. 3g offenses are really bad stuff, and some drug cases- Murder, capital murder, indecency with a child, agg kidnapping, agg sex assault, agg robbery, school zone drug offenses, or an offense in which you used a deadly weapon.

Find out if you are eligible for early release before taking a plea offer.

Does anyone else find it outrageous that we put DWI defendants in the same boat as sex offenders? MADD's DWI hysteria lobbying again proves to be more effective than the DWI defendant lobby. Moving on.

Ok, so who is eligible? Some drug cases, most misdemeanor cases besides DWI, most non violent theft cases.

When can I apply for early termination?
After you serve 1/3 of your community service time, or 2 years, whichever comes first.

Will the judge grant my motion?
It depends. In my experience the most important factors for early release are
1. How long you have been on probation. The longer the better.
2. Your probation performance. Pass your pee tests, report, and don't get arrested!
3. $$$$$. The government needs your fines, fees, and court costs. Paying those will help your case.
4. Your PO's (probation officer's) recommendation. This is the most important. If your PO will sign off on early termination often the DA will agree, and if the DA agrees, then the judge is more likely to grant the motion.
5. Your overall criminal record. If you have been to the pen a few times, that's not good.

Unfortunately, many DA plea recs also assume you will get off early. Therefore, you may get a 7 year probation plea offer because the DA assumes you will be off in 2 years anyway. The existence of the early release statute has an inflationary effect on plea offers.

Remember, you are not guaranteed early release. Don't sign up for 10 years probation expecting to get off in 2.

Work with your PO
Once you are on probation let your PO know that you want to get off early and make that your goal. Ask your PO what it would take to win his/her recommendation for early termination and follow through.

Scene: Texas Senate sometime in the past

Senator Genius: The people in my district are scared about gang members.
Senator Einstein: Interesting. My constituents are concerned with the threat of dildo sales.
Senator Genius: Are you thinking what I'm thinking?
Senator Einstein: A ban on gang members selling sex toys! Brilliant!
Senator Genius: My only regret, is that we can only pass this law once.

I should have realized that by making obscene devices illegal, the black market in sex toys would flourish and criminal street gangs would fill the demand. Fortunately, Texans have long been protected from this menace.

This brings us to our Texas Law of the Day- Penal Code Section 71.02(a). Politically, this is the perfect Texas law. 71.02(a) combines the public's fear of gangs, with our state's Victorian sexual mores. Fear and chastity are the peanut butter and jelly of Texas legislation. It's political gold!

(a) A person commits an offense if... as a member of a criminal street gang, the person commits or conspires to commit one or more of the following:.... (6) any unlawful wholesale promotion or possession of any obscene material or obscene device with the intent to wholesale promote the same;

I am ready to declare 71.02 (a)(6) the most effective law of all time. I have never seen a single arrest or prosecution for this offense. The only street dealers for adult products are housewifes at "passion partys"; not Crips.

Forget the high toned debates over "deterrence". The minute this law was passed every gang banger in the Lone Star state grabbed a copy of the Penal Code and realized; trafficking in lascivious devices is wrong. Our Texas gang members have taken the moral high road when it comes to street commerce; drug dealing. We won!

My wife and I saw Gran Torino last night. GT is a great film worthy of all the Oscar buzz. I don't usually do movie reviews but here goes.

GT is a formulaic Eastwood in a good way. Dramatic, funny, and ultimately tragic. The whole time I was just waiting for things to go horribly wrong Million Dollar Baby style. And wrong they went.

Spoiler alert- I'm going to give away the ending so we can discuss the castle doctrine. If you aren't willing to trade your surprise for this discussion click here.

Client Eastwood's character Walt is a bigoted veteran who loses his wife. Walt befriends a young boy (Toad) and his sister who live next door. Toad and his sister are harassed by local gang members.

During an altercation Walt points his M1 rifle at the gang. Later, Walt beats the crap out of one gang member. Finally, the gang members assault Toad and rape his sister. You know this isn't going to end well.

Dirty Harry shows up at the gang's house for a final confrontation. Walt points his finger at the gang members and says "bang", shooting them with an imaginary hand pistol. The gang members are nervous, and armed with an assortment of firearms.

Suddenly, Walt reaches into his jacket. The gang members quickly fire multiple rounds into the Space Cowboy, killing him. Walt wasn't carrying a gun, only his lighter. The gang members are arrested with the expectation of long prison sentences.

Such is the ending of Gran Torino. Walt sacrifices his life so his friends can live in peace. Typical depressing Eastwoodian conclusion.

The movie took place in Michigan. Would Walt's plan work in Texas? Would the gang members go to prison? Or would the castle doctrine have justified their use of deadly force?

Disclaimer- THIS IS NOT ADVISE (LEGAL OR OTHERWISE). DON'T SHOOT OR NOT SHOOT ANYONE BECAUSE OF THIS. IF YOU DO, YOU ARE A MORON.

If you must read my wildly speculative thoughtless ramblings the discussion is below the jump.

Continue reading "Gran Torino and the Castle Doctrine" »

Having a law blog guarantees a steady stream of email questions. It has come to my attention that many of you are pursuing a certain career, and worried about the effect of a criminal charge.

Readers will send me information on some old criminal case in which they took a "great" plea offer and were told (erroneously) that a deferred or reduced charge would not appear on their record or prevent them from entering a certain field.

Potential cops, law students, firemen, and teachers, have contacted me with similar concerns. Here are the three most common questions.

1. What is on my record?
2. Can I have this removed from my record?
3. Will this keep me from getting hired/licensed/accepted?

1. Most people would be surprised to know there is no one official "record" for you. The police and prosecutors of Texas utilitize the National Crime Information Center. Private employers typically use background search companies like KnowX.com, public data.com, or intellius.com. Finally, DPS keeps a database of criminal records, and the county you were convicted in should have your case as the clerk's office.

What is on your record depends on which one is being looked at. In my experience it may not matter. You will probably be required to disclose this information yourself when applying. My law school application required all conviction/criminal charges to be disclosed.

2. Can the charge be removed, expunged, non disclosed or otherwise kept from view?

Maybe, maybe not. Here are the rules for Expunction.

Here are the rules for non disclosure.

3. This is area I know the least about, whether or not that old criminal case will prevent you from getting a license, or job, or into grad school. The only professional license I am familiar with is my own. I knew law students who had a DWI in their past and still were allowed to practice law.

I advise asking someone in the field you are considering, calling the employer, and checking the licensing requirements (for Texas) here- http://www.state.tx.us/portal/tol/en/gov/9

Nothing excites Texans like football (especially Red Raider football). Nothing excites the Texas legislature like creating a new criminal law for every perceived societal problem. Combine the two and you get...

32.441. ILLEGAL RECRUITMENT OF AN ATHLETE.

(a) A person commits an offense if, without the consent of the governing body or a designee of the governing body of an institution of higher education, the person intentionally or knowingly solicits, accepts, or agrees to accept any benefit from another on an agreement or understanding that the benefit will influence the conduct of the person in enrolling in the institution and participating in intercollegiate athletics.

This "crime" ranges from a Class C misdemeanor (for a benefit less than $20) to a first degree 5-99 years felony (for over $200,000).

I find more than a small amount of hypocrisy in the law. Unlike baseball, we force college football players into an amateur minor league system. College football players have amazing skills that generate millions in revenue for their schools, yet the athletes see little of that. The last big 12 TV contract was for $500 million dollars. BCS bowl games pay each college $17.5 million. The "governing body", in this case the NCAA, is not sharing that money with the players. And if boosters, fans, or alumni voluntarily pay we make that a crime.

I'm sure proponents of this law will argue for sanctity of amateur athletics. But do really need another criminal law just to protect the NCAA minor league football monopoly?

Specialized courts are all the rage. We have DWI courts, Drug Courts, and more recently a new speicalized court for prostitutes. DMN reports

Dallas court helping put prostitution in the past

06:41 AM CDT on Tuesday, October 28, 2008

By TIARA M. ELLIS / The Dallas Morning News
tellis@dallasnews.com

These days, Cheryl Sneed dresses more like a church lady than a lady of the night. She's been both.

But for the last two months Mrs. Sneed and about 20 other former prostitutes have given up selling their bodies in exchange for freedom.

"These women have been where I've been," said Mrs. Sneed, 49. "We were all in the bottom of life, in the depths of hell out there in those streets. This program has been a miracle to me."

The program to which Mrs. Sneed refers is called STAR Court, which stands for Strengthening, Transition and Recovery. State District Judge Lana Myers started it in July to help get habitual prostitutes off the streets. The women usually meet in her Dallas courtroom on Monday afternoons to talk about their progress and their setbacks.

It is believed to be the only such "prostitution court" in the state.

What isn't discussed is if prostitution should be legalized. After all, even Dallas SWAT members enjoy the company of professional escorts.

Texas Prostitution Laws
In Texas, prostitution is a misdemeanor with the possibility of up to 6 months in the county jail.
From the Texas Penal Code

Sec. 43.02. PROSTITUTION.
(a) A person commits an offense if he knowingly:
(1) offers to engage, agrees to engage, or engages in sexual conduct for a fee; or
(2) solicits another in a public place to engage with him in sexual conduct for hire.
(b) An offense is established under Subsection (a)(1) whether the actor is to receive or pay a fee. An offense is established under Subsection (a)(2) whether the actor solicits a person to hire him or offers to hire the person solicited.
(c) An offense under this section is a Class B misdemeanor...

It is the commercial aspect that makes prostitution illegal. This activity is legal unless done for a fee, or "for hire". Kind of a strange line for morality.In the age of craigslist and internet escorts the streetwalker stereotypes are changing rapidly. Do we still want cops busting johns and hookers when Dallas has a lousy 6% crime clearance for burglaries?

Opportunity costs aside; should this conduct be constitutionally protected? In Lawrence vs. Texas SCOTUS struck down the Texas sodomy laws finding a right for adults to engage in consensual sexual activity. Shouldn't the same logic apply to commercial sex?

From SCOTUS

[The State of Texas] seeks to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons

Texas' Drug Free Zone (DFZ) law is a testament to the failure of Prohibition. If our drug war worked special laws to keep drugs out of certain areas wouldn't be necessary. But I digress.

So what is a Drug Free Zone?
Basically in, on, or within 1,000 feet of premises owned, rented, or leased by an institution of higher learning, the premises of a public or private youth center, or a playground; or in, on, or within 300 feet of the premises of a public swimming pool or video arcade facility or on a school bus.

The DFZ fantasy is that cops are busting drug dealers who prey on innocent school children. In my experience most DFZ charges are brought against adults with a joint in their car 900 feet away from a prohibited area. Local cops quickly learn which roads are in a DFZ, and adjust their traffic stop/fishing for drugs activity accordingly.

What happens to a DFZ case?
This is fairly complicated. Basically, the punishments are increased. More jail time, probation can be denied, sentences can be stacked. Read this great article from TDCAA for more info.

Wait a minute, this law would make every college a drug free zone. I've been to college and it's no drug free zone.
Good observation. Since most legislators went to college, and/or have kids in college, some DFZ provisions don't apply to college campuses. For example, simple marijuana possession on a college campus doesn't fall under the DFZ law.

Thanks to the TDCAA website for posting this memo from CPS. Recently, CPS was sued by two parents in Fort Bend County for numerous constitutional violations.

The 5th Circuit Court of Appeals held that CPS could be liable to future litigants (under a 1983 claim). Normally, the government grants itself immunity from lawsuits. However, the 5th Circuit held that CPS may not have immunity if they continue to violate the constitutional rights of parents. Rightfully, CPS is scared about the possibility of massive judgments against them. Hence this urgent memo to employees.

From the CPS memo-

On July 28, 2008, a federal appeals court with authority over Texas handed down a decision in a case that will be referred to as “the Gates case.” The decision is binding on Texas and because it involves federal constitutional rights, supersedes anything to the contrary in Texas law, or DFPS policy or practice.

I. INTRODUCTION

The Gates case is significant for two key reasons. First, it sets out a new standard that will require DFPS to obtain a court order prior to removal in a much larger proportion of our cases and affects whether we can transport or enter a home. Second, it is significant because it clarifies that if the standard is not followed, staff could be sued as individuals and lose qualified immunity, i.e., be responsible for monetary damages.

CPS may consider this a "new" standard. I disagree. The Constitution has been around longer than CPS. CPS shouldn't be surprised that it applies to them.

Consent Searches
Just like the police will ask for consent to search your car, CPS will ask for consent to search your home. This memo reminds CPS that they can not invade private residences without a court order, consent, or emergency.

Parents, read this section and learn these rules. If CPS wants to enter your home it is not to help you. Call an attorney to protect your rights.

I

V. ENTERING AND REMAINING IN A HOME

A. SUMMARY

As with removals, in order to gain entry into a home for the purpose of a CPS investigation, we must have one of the following: 1) exigent circumstances, 2) consent, or 3) a court order, but the Gates ruling provided additional explanation concerning exigent circumstances and consent that will affect our practices.

NOTE: even if we do have exigent circumstances to enter a home, it may be more appropriate for safety reasons to call law enforcement to gain entry.

Current Practice: CPS enters a family’s home only if we have exigent circumstances, consent, or a court order. CPS does not always ensure consent is specific to our investigators. A court order in aid of investigation is rarely utilized.

New Practice: As with removals, exigent circumstances are present only where there is immediate danger to a child in the home, i.e. life or limb is in immediate jeopardy. Consent must be clear, unequivocal, voluntary and given specifically to CPS, as opposed to law enforcement. We will likely increase the use of court orders in aid of investigation.

One sentence sticks out. CPS will increase the use of court orders. That is a great idea. Instead of taking children first, and then going to court; CPS should actually investigate, then go to court for a removal. Of course, if this turns into a rubber stamp situation like DWI blood search warrants, then again there will be no justice.

More on the consent guidelines below the fold....

Continue reading "Texas CPS Memo "Quit violating the Constituion, or we could be sued!"" »

I'm often asked by clients if a case is too old to go to court, or if there case is so old it must be dismissed. This is understandable. Many defendants are arrested and then wait months for their first court date. For example, the Kaufman DA (wisely) tests all drugs at the DPS drug lag before filing a case. There is a dope backlog at the DPS lab in Garland (onward Prohibition!). That means a wait of 3-6 months for drug cases to be filed after arrest.

What these clients are asking is if the Statute of Limitations has run in their case. (There are also speedy trial implications but that's beyond the scope of this post).

What is the Statute of Limitations?
The Statute of Limitations (SOL) is a recognition that some cases are too old to prosecute. SOL prevents the State from filing cases after a certain amount of time has passed. Remember that pot you smoked in college? As a society we have decided you should not have to answer for such conduct twenty years later. Here is how the Court of Criminal Appeals described SOL-

The statute of limitations is an act of grace for the benefit of potential defendants, a voluntary surrendering by the people of their right to prosecute. This act of grace serves several objectives: (1) it protects defendants from having to defend themselves against charges when the basic facts may—or may not—have become obscured by time; (2) it prevents prosecution of those who have been law-abiding for some years; and (3) it lessens the possibility of blackmail. Proctor v. State, 967 S.W.2d 840 (Tex.Cr.App. 1998).

If a case is filed outside the SOL then your defense lawyer must raise this issue in a pre trial Motion to Dismiss.

What is the Statute of Limitations for _____________?
It depends on what you charged with. You can find this information in the Code of Criminal Procedure Article 12.

No Statute of Limitations- Murder/manslaugther, sexual assault with DNA evidence, and leaving the scene of an accident that results in death

Ten Years- theft of any estate by an executor/administrator. Theft by a public servant of government property, Forgery. Injury to a child, elderly individual, or disabled individual punishable as a felony of the first degree under Section 22.04, Penal Code; Sexual assault, unless there is DNA evidence or if the victim is under 18. Arson;

Seven Years
misapplication of fiduciary property or property of a financial institution;securing execution of document by deception; or certain Tax Code violations

Five Years
Theft, burglary, robbery; kidnapping; injury to a child, elderly individual, or disabled individual that is not punishable as a felony of the first degree under Section 22.04, Penal Code; abandoning or endangering a child; or insurance fraud;

Ten Years From the 18th Birthday of the victim
Indecency with a child, Sexual assault under Section 22.011(a)(2), Penal Code, or aggravated sexual assault under Section 22.021(a)(1)(B), Penal Code;

Three Years
All other felonies not already listed. This includes felony drug offenses.

Two Years
All Misdemeanor offenses including DWI, marijuana possession, assault family violence etc.

When Does the Statute of Limitations start?
The day you (allegedly) commit the offense.