They can’t use my past against me!

The criminal justice system really sucks in Texas. It’s gotten incrementally less horrible in some aspects, but the Lone Star State still views prison as the best option to solve problems. From addiction to mental health, we haven’t found an issue that we won’t try to incarcerate our way out of.

The end result of our obsession with arresting people is that many Texans have some criminal history. And having a criminal record means you are going to be treated worse in every step of the process. It starts when you get pulled over, and the police run your name through the TCIC. If your background shows a drug arrest, regardless of the outcome, they are more likely to want to search you for drugs. When your bail is set, a magistrate might consider prior criminal cases in setting your bail, and if they don’t, then the DA’s office might go back and ask for a higher bail when you get out.


I was a prosecutor once. In fact, the original name of this blog was “I Was The State.” I liked that name, but Google didn’t, so now it’s more SEO friendly. When I was an ADA, I would get new cases in a process called intake.

The cases came in a nice folder with the police reports on one side, and any criminal history on the other. I usually read the criminal history first, and it influenced how I viewed all the other evidence in the file. So if there was a weak case with someone with no history, it might be rejected. But if you had a few pen trips then it was probably getting filed.

“They can’t use my past against me! Those cases are old, and I wasn’t convicted!”

That’s a common refrain I hear from people getting a shitty plea offer. Prosecutors can use your history against you in two ways. 1- They can give you a worse plea offer than a person with no history would get. Even if you were just arrested, or never convicted. 2- If you have convictions, especially felony convictions or pen trips, they can try to enhance the case to a higher degree felony. It is possible to “enhance” misdemeanors and increase the minimum sentence, but it’s rare.

If you’ve been on parole for 15 years and done a great job but pick up a new case, guess what? All that time out on parole doing the right thing doesn’t look so great.

If you have an extensive criminal history and are facing a new charge, you need to expect to face a tough battle. Not impossible, but very challenging. We help people with criminal records avoid prison, jail, and even conviction but it takes much more time and effort than if they have no record at all.

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