Frequently Asked Questions

Via email:

Hello I recently accepted probation. I wanted to ask is it unconstitutional in Texas for me to be given a contract where I give up my right to a trial by jury when I accept probation?

I’m assuming “contract” means the plea paperwork and the portion of it that says, in legalese and this is obviously not verbatim, “You know you have the right to a jury trial, you know you have the right to a jury trial, you know you have the right to a jury trial…”

So, to answer the question, “No. It’s not.”  Without the contract(admonishments)?  Maybe.  But with the contract?  I doubt it.

Someone googled:

“Whose decision is it to put someone in jail if you fail a drug test while on probation?”

Well, if you fail a U/A while on probation, your probation officer will file a motion to revoke which causes paperwork asking that a warrant issues to be sent to the court for the judge’s signature.

On some minor violations the court will actually issue a summons instead of a warrant (at least in Austin) but most judges around here will authorize the warrant for a positive specimen.

So initially the ‘decision’ is the PO’s and the judge’s, if you’re talking about the decision to issue a warrant. If and when you bond out of jail, however you still face revocation proceedings in court.

I think this is what the question is really asking about, and the answer is: the judge.

In Texas – and I’d bet in almost every place as well – you are not entitled to a jury trial to decide whether or not you are in violation of probation. And worse still, the state need not prove the violation beyond a reasonable doubt, but only “by a preponderance” which means more likely than not.

So, try not to fail any U/As on probation, and there’s really only one good way to make sure of that, if you catch my drift…


Some queries, as usual, highlight good questions. Some I just find amusing. Here goes my summary of the best searches that brought up Austin Criminal Defense Lawyer this month.

Probation Fees Travis County Tx

It’s $62 per month to be on probation in Travis County, and, I think, pretty much everywhere in the state. Hyper technically, it’s $60 per month, and then they add a $2 transaction fee every time you pay. So I suppose if you paid it all up front at your first visit, you could save (Number of months on probation – 1) * $2. This does not include fines and court costs.

What is better, probation or prison?

Which is better: misdemeanor probation or county jail, especially a short or backtime sentence… depending on the context, that’s certainly a reasonable question. Prison sentences, however, are going to be 2 years at a minimum – ignoring State Jail Felonies, which are still 6 months day for day no parole, at a minimum. Most of the defendants I’ve ever met don’t ask me this one.

How much marijuana in Texas is considered dealing?

This really deserves its own post sometime, but, if you are talking about State not Federal charges, then the statutory answer is: there is no such thing as possession “with intent to deliver” marijuana in Texas. Or, more precisely, there’s no enhancement for “intent to deliver” as there is with cocaine, heroin, and pretty much every other drug or controlled substance penalized in the Texas Health and Safety Code.

One quick caveat: a prosecutor, judge or jury may treat a case differently, at least in terms of trying to go for a higher punishment than if there were not ‘evidence of dealing’. But the actual range of punishment including the maximum can not be increased.

Effectiveness War On Drugs

Easiest one of the month. And the answer is… zero. Unless by ‘effectiveness’ you meant ‘lining the pockets of the private prison industry’.

Lawyers who smoke medical marijuana

Well, if you’re a lawyer, then you know it’s still illegal under federal law, even if you live in a state with medical marijuana exceptions (i.e., somewhere besides Texas). So you probably won’t be advertising this fact on the internet.

Texas MIP self defense

I’ve tried to construct some sort of hypothetical where you could reasonably ask for a self defense instruction in a Minor in Possession case, but I can’t seem to do it. Anyone else want to take a stab at it? (He was coming at me with a knife, so I picked up the nearby beer can and chucked it at him. Best I can think of.)

Oddest Search of the Month: speech for student take the drugs and other vice in pup

OK. That one really has me stumped.

Question (from an email): I have a situation that I need your help with if you don’t mind.

Here it is: I have three public intoxication charges in the past nine years. Got my first one at 21 and my last one at 29. I am 30 now.

The first one was in 1998, was arrested and put on deferred adjudication. Second one was in 2002, was arrested and put on deferred adjudication. Third one was November 2006, pretty recent. Was not arrested but put on deferred adjudication.

Of course I had fines to pay and my first one I had to attend AA meeting. I fulfilled all requirements without incident for all three. First on was in Austin, Texas….second in McKinney, Texas…third in Lake Dallas, Texas. I believe they are all class B misdemeanors correct?

I heard that when you get three then it changes to class A, is that so?

Anyway….In the last five years I have attended school and became a firefighter / Paramedic and am trying to get hired on to a Fire Department. Well, I was an idiot and got a freakin P.I. in November of 2006 and decided to stop drinking all together because it’s no good and I am ruining my chances of getting hired on anywhere.

The Fire Department is pretty strict about criminal history, even with misdemeanors and time is the only thing on my side to get hired on. Well, since I not only have three PI charges racked up but one being too recent I can’t get hired right now and it’s hurting me.

I heard of something called motion of disclosure…will this help me and is this what I need to sort of fix the problem. 

The least I could do is the most recent one…if not all of them…or even the last two. I don’t know.

What would you suggest be the best choice? I don’t lie on applications and I really don’t want to wait longer for time to pass separating me from the last charge. How much would it cost to do this? Please help me. Thanks.

Answer: One quick note, before I give a more substantive answer…

While I definitely don’t think that getting one Public Intoxication arrest makes someone an alcoholic (after all, it’s often more about your attitude than how much you’ve had to drink), I’m glad to hear that after 3 arrests and 1 ticket for PI, you’ve decided to stop drinking. 

Sounds like you either have incredibly bad luck, or quite possibly there’s an alcohol problem that needs addressing.

OK. So for the good news…Public Intoxication in Texas is a Class C misdemeanor, not a Class B, which makes quite a difference.

So, it’s ‘only’ the equivalent of a traffic ticket level offense, but, as you have found out, it can affect your employment possibilities…especially if you have a ‘history’ of PI arrests.

More good news? What you (and probably the Municipal Court prosecutors you dealt with) call ‘deferred adjudication’ for a Class C PI charge, was actually deferred disposition. That means the ‘probation’ you were on was non-reporting, the same way that you don’t check in monthly with a probation officer when you agree to take defensive driving to get your traffic ticket dismissed.

More good news? In Texas, a successfully completed deferred disposition entitles you to an expunction. Expunctions completely erase a record, whereas the Motion for Non-Disclosure that you talked about ‘mostly’ clears your record. So an expunction is better.

A quick digression based on your email before I get to the ‘bad news’…

A Public Intoxication arrest (or ticket) can be enhanced from a Class C, to a Class B misdemeanor, when you have 2 prior convictions. Again, if you successfully completed the deferred disposition, you have no prior convictions, so you aren’t in that category. But that’s what you ‘heard’ about enhancements for Texas Public Intoxication charges, and that part is true.

OK. You knew it was coming. The bad news…for you, anyway… (isn’t the cost of hiring the lawyer always the bad news?)

You can only expunge multiple arrests in Texas in one proceeding if they all happened in the same county. The petition to expunge must be filed in the county that you were arrested. 

Frankly, the majority of the costs involved in any expungement proceeding is preparing the paperwork. Personally, when I apply to erase my client’s criminal history in Austin, I charge an additional fraction of the initial cost to add multiple arrests to the petition. In other words, it doesn’t cost much more to expunge 2 arrests if they happen in the same county.

You were arrested in at least 3 different counties, so you will probably need to hire lawyers in all 3 jurisdictions to get the expunctions. Even if you hired the same lawyer for all three, it’s not just a matter of adding another few paragraphs to the expunction form to include the other cause numbers, etc. There will be separate filing fees for each County Clerk, and separate appearances for the attorney, etc.

I’ve got to end with some good news though. Sounds like your life is taking a turn in the right direction, and while it will cost some money to clear up your criminal history, you are eligible to do so, and in the long run…trust me, that’s what counts.

Question: My daughter was in a car that was pulled over and one of the passengers had been drinking.  When the car was pulled over, it was searched and there were several unopened beers present. 

My daughter was being driven to a restaurant from school and did not know alcohol was present in the vehicle when she entered.  All of the passengers were charged with MIP.  3 of them have already pleaded guilty.

Is she automatically guilty of MIP if she is in proximity of alcohol?

Answer: Absolutely Not. And I don’t just mean that in the ‘gut instinct’ criminal defense lawyer ‘no-one-is-automatically-guilty’ of anything way. There’s more to it than that.

To prove any charge involving possession, whether it’s for a minor and alcohol, or an adult and marijuana, cocaine, etc., the State needs to prove that the defendant knowingly or intentionally possessed the contraband.

If a jury, or a judge in a bench trial, believes that the accused did not knowing possess the substance they are charged with possessing, they will be duty bound to acquit.

On a charge that is ‘only a Class C misdemeanor,’ it is sometimes easier, and undoubtedly less expensive, to sign up for a deferred disposition, than it is to hire a lawyer to go to trial.

But on cases like Class B misdemeanor Possession of Marijuana (or higher felony possession charges), where you need a defense lawyer, unknowing possession is always a valid defense.

See also:  Jury Selection and the Unwitting Possession Defense and Definition of Possession in the Texas Penal Code

Criminal defense lawyers represent innocent clients, at least some of the time. I’m not talking about “Not Guilty” clients, or “You can’t prove my client did it” clients, or “Probably guilty, but he deserves a break because ________” clients… I’m talking about actually factually 100% innocent clients. They did not do it – period – end of sentence clients.

Well, why not take a polygraph? That should be the end of it, no? The innocent accused passes, the result is provided to the prosecutor, the charges are dropped.

Not necessarily. First, polygraph results are inadmissible, as they should be. [Public reminder to myself to write a post someday soon about the problems with polygraph results.]

Second, there’s the problem of which polygrapher the State believes. They very often trust their own polygrapher, but not always one that doesn’t get a government paycheck. (Let’s ignore for now that the ‘science’ of polygraphy can lead to two different – opposite – results. As I said, I’ll talk about the problems later.)

Mark Bennett and Stephen Gustitis have weighed in recently on this issue. From Mark:

Any accused who is going to take a polygraph exam should, if only for that reason, first take one from an independent examiner. The exam costs (in Houston) less than $1,000. If the accused fails, the result never goes any farther than the lawyer, who knows that (for whatever reason) the client can’t pass a polygraph exam and shouldn’t waste his time taking the government’s exam.

If the accused passes, however, he may have a result that the prosecutor will accept. If the prosecutor still insists on a police examiner performing the examination, the client knows going in what to expect and knows that he can pass a polygraph examination. He will not be susceptible to the police polygrapher’s interrogation tactics.

Absolutely correct. The defense lawyer needs to know beforehand whether his client will pass. An innocent client can fail, and there’s no need to get the Prosecutor to dig their heels in even more.

From Stephen:

Never, never, never take a polygraph examination without first consulting with a highly qualified criminal defense lawyer. If the lawyer suggests you take a polygraph administered by the police, fire that lawyer and hire another. The only polygraph you should take is one given by an expert hired by your lawyer, which protects the results under the attorney/client work product privilege…

I’ve had many unfortunate people contact me on the phone and explain they had submitted to a police polygraph and failed. My next question is always: "What did you tell them after that?" Rarely is the answer a good one for the accused.

I think the defense attorney needs to know the local culture regarding polygraph results. In some jurisdictions, no polygraph will ever convince a prosecutor to dismiss. Sounds like in Houston, some prosecutors will accept non governmental polygraphs, without requiring a follow up with the State’s ‘expert’.

In Austin, it’s usually going to be a two part process. The defense, as both Mark and Stephen suggest, needs to get their own polygrapher first. Then, after the defendant has been through it once, passed, he is prepped to take one from the State.

Let me add one final thought about ‘prepping’: the defense lawyer needs to warn his client that some State polygraphers, after administering a test where the defendant passed (i.e., answered the questions in a way that shows that he is not guilty), will tell the defendant that he failed.

Yes, the State’s polygrapher outright lies to the defendant, in an effort to convince him that all hope is lost, and that things will be easier now if he just goes ahead and confesses. What’s worse is this: if the guy admits anything, his polygraph result will still be inadmissible at trial…but his confession won’t be.

Bottom line? Innocent people who are even potentially being investigated for criminal activity need to consult lawyers before subjecting themselves to any government interrogation, police, polygrapher, or any other kind. (OK, OK… guilty folks should think twice too.)

Question:  I recently received a citation with a violation of "theft under $50′.

The police officer advised me to go to court and appear before the judge and pay the fine.  However I am not sure if I pay my fine, will my background check always reveal this offense?

How can I go about getting this erased from my records? Should I plead Not Guilty?

Answer: I feel obligated to mention that the police officer should not be giving advice of this sort to people he writes citations (or anyone else for that matter). Nothing will come of that though, so on to your real questions…

Should I plead ‘Not Guilty’? Absolutely. “Just” paying the fine, as the officer advised you, is a plea of guilty or no contest, and will result in a permanent criminal conviction for theft on your record forever.

A conviction for theft is a ‘crime involving moral turpitude’…meaning basically that you are being convicted of something that labels you as either (1) a bad person or (2) a person who did a bad thing, depending on who is doing the defining. (I, however, am a criminal defense attorney, and not one given to making moral judgments about other people, so you’re going to have to try a lot harder than Class C Theft to offend me.)

If you enter a plea of Not Guilty, however, you will probably be given the opportunity to enter into a deferred disposition, jump through some hoops, and get the case dismissed. Successful completion of a Class C deferred will then entitle you to expunge the offense from your record – although, recent caselaw indicates that you may have to wait 2 years to do so. Still, no conviction, and an expunction in two years is better than a theft conviction on your record for life.

Continue Reading “Just” Pleading Guilty to Class C Theft in Texas

Question: 14 years ago I received a deferred adjudication for a misdemeanor.

Upon completion of my one year deferred adjudication, the case was disposed/dismissed. Because I did deferred adjudication, this means I do not have a conviction on my record. And, I’m in the process of submitting a non-disclosure of criminal records, however it has not been filed yet.

I am also in the process of completing a criminal background check for a future employer and I want to answer the questions truthfully to the question. They will be doing a background check for convictions (State or county).

There are 2 questions I must answer:

1. Have you ever been convicted of a felony or misdemeanor? To which I feel I can truthfully say "No" since I was not convicted.

2. Have you ever served time, been on probation, or currently serving a deferred adjudication? To which I also believe I can answer "No" since I did not serve time, I was not on probation as that term is defined, and I am not currently on a deferred adjudication sentence.

Because I’m worried about my background check results, I’ve run 3 separate checks, all which came back with nothing for convictions or anything else. I’ve had a police officer friend run my information through the county system where I was arrested and held, and they have no history of me being processed in the system.

Please advise if my answers to the above 2 questions are accurate.  Obviously, if the question "Have you ever been arrested" was asked, I’d have to answer "Yes". 

I don’t know if I should voluntarily offer the information that I was on deferred adjudication 14 years ago, since that was not specifically asked.  They may very well find an arrest record, but that was not asked and so I’m confused.

Answer: Some of this doesn’t actually lend itself to an easy answer, but I’m gonna give it a shot anyway.

For Question #1, “Have you ever been convicted of a Felony or Misdemeanor?” the answer is easy: No. Successful completion of deferred adjudication in Texas means you have not been convicted.

It’s Question #2 that becomes problematic. The part of the question that reads “been on probation, or currently serving a deferred adjudication” may imply that the employer thinks deferred adjudication is not probation. You yourself have characterized it as not probation “as that term is defined”

I think this is inaccurate – defendants on deferred probation in Texas are indeed covered by Article 42.12 of the Code of Criminal Procedure – the community supervision statute. (We used to formally call it probation; now it’s “community supervision”.)

And you checked in with a probation officer once a month, the same way that folks convicted and put on probation do. You were subject to random UA’s, and assigned a minimum of 24 hours of community service. You were on probation, as that term is defined. You just weren’t convicted.

The worst case scenario here is that you answer the question in the way that you believe is honest; but the prospective employer finds out about the deferred, and thinks you were intentionally lying.

Perhaps you can call the Human Resources department, if it’s a big enough company to have one, and anonymously ask how someone in your situation should answer the question.

Finally, I’m glad to see that you are applying for the Motion for Non-Disclosure, because this is the long term solution for this problem. Eventually, when that is granted, non-governmental employers won’t have access to see that you were arrested, and you won’t have to deal with this tricky situation anymore.

I have been reading your blog and The Wretched of the Earth’s (by Poverty Lawyer 1) blog and I find both blogs very informative, easy to understand, and written by competent and organized minds!  You have both had articles that taught me things about my case that I need to be concerned about.  (Thank you for the complement.)

Summary of My Questions:

1) I got arrested for DWLS recently.  I want this arrest, fingerprints, mugshots, etc. removed from all government databases.  Does License Suspensions and Revocations Article 55.06–Texas Code of Criminal Procedure mean that there is no way for me to get this expunged, no matter what happens? 

No. If you are acquitted, or your case is dismissed you will be entitled to expunge the arrest. (Since jury trials in DWLS cases are extremely rare, it’s more likely that the case would be reduced to a Class C traffic ticket, e.g. for whatever you were stopped for in the first place, or that the case would be dismissed outright, say in return for getting your license back in order, than to be acquitted.)

The section you are reading applies to folks who have their license suspended for DWI through the ALR process, but then have their criminal DWI case dismissed. In that scenario, the law allows you to erase the DWI arrest, but not the license suspension from your record.

2) If it is possible to get an expunction, how do I do it?

Assuming you qualify, you will need to file a petition to expunge the arrest and include all the government agencies that have those records in your petition. There are, of course, more steps after that. Frankly, you really need a lawyer to do this correctly. I’ll ask you to believe me, despite my possible “hire a lawyer” bias.
3) If I get a dismissal, I don’t want any possibility that the case can be refiled.  Is there any way to ensure that?  Like by asking for a dismissal with prejudice?

Dismissals granted during the initial two year statute of limitations for misdemeanors are rarely granted “with prejudice”, meaning in theory the State is free to refile them. However, dismissals in most criminal cases are going to be by way of negotiated agreement. Therefore, the State rarely refiles cases that they have agreed to dismiss.

BACKGROUND: I was arrested in Travis County recently for Driving While License Suspended.  I would guess you are familiar with this growing problem where people get convicted of not having insurance, then don’t get the notice of the DPS surcharge, therefore don’t pay it, and are suddenly arrested for DWLS.  That’s exactly what happened to me.  There are more details that make this situation more of an injustice, but I will leave them out since I don’t think they are relevant to my questions.

I am very familiar with this situation. In fact, to quote myself from another post on the subject, “…my guess is that at least half of my clients who come to see me for a driving while license suspended arrest didn’t know that their license was suspended.”  This is, not coincidentally, what provides the basis for the defense in most DWLS cases, and therefore leads to a negotiated dismissal.

Continuing what may become a new regular blog feature, I am going to answer some questions I see “posed” by various internet searches that have found this blog (and still remained somewhat unanswered by the pages the searches brought up):

possession of marijuana in austin texas how long probation

Great question. Texas has the longest probation periods of any state. For Class B and Class A Misdemeanors, the maximum length of probation in Texas is two years. The minimum is 6 months. Some places frequently allow unsupervised misdemeanor probations, but, I hasten to add, not Austin. 

State Jail Felony probations range from 2 years minimum to 5 years maximum; all higher degree felonies (third, second and first) have possibly probation lengths of 2 to 10 years. Here’s some good info from folks arguing for shorter probation periods in Texas.

probation 6 months expunge record misdemeanor B

I’m going to rephrase this one: “Can I expunge a Texas Class B misdemeanor arrest that resulted in a six month probation?” The answer is an unequivocal no. Many times I see Google searches for questions that don’t have exact answers, because they are too case-by-case specific. 

This one is easy to answer, although, probably not what the questioner wants to hear. The section in Chapter 55 dealing with the right to an expunction is very clear that a defendant can not expunge any arrest that was resolved under Section 42.12 Community Supervision, also known as probation. This includes any type of deferred adjudication probation, even though when successfully completed, it wouldn’t lead to a conviction.

Most deferred adjudication probations can be sealed by way of Motion for Non-Disclosure, which means that while the government keeps the records (and will therefore know about the prior arrest if you wind up back in court again), for the most part they don’t disseminate the information, so most future employers (family, friends, noisy neighbors, etc.) can’t find out about the arrest.

how to plead minor in possession austin texas       and

if convicted of disorderly conduct in austin what will the punishment be?

Here are two examples in the “I can’t possibly answer that without talking to you” category. I see these questions (change the offenses to DWI, Shoplifting, Assault) all the time. 

I talked on the phone today for about ten minutes with the guy that googled the second question, and was able to tell him how he could handle the Class C disorderly conduct ticket without needing an attorney to represent him at all. But I wouldn’t have been able to give an exact answer, had I not spent a little time on the phone with him. I needed to know the facts, and what his goals and concerns were. 

Turned out in his case, he would probably work out a deferred disposition and a dismissal on his own. Also, he didn’t care about expunging the disorderly conduct, so that really meant he probably didn’t need a lawyer. 

By the way, the short answer to “Do I need a lawyer for a fill-in-the-blank Class C offense?” usually depends on whether you care about eventually seeking an expunction to wipe the arrest off your record completely. If so, my advice is get a lawyer. If it’s for a Class B or higher (jailable offense), then, with rare exceptions, you definitely need an attorney.


I added a “favorite search of the week” last time, which asked about horse theft in Texas, so here’s the “I can’t believe this question brought up my blog” search of the week…

how much can you buy a gram of cocaine for in austin texas?

I have no idea. Or maybe I should say since I handle a lot of drug possession cases, I probably have a general idea, but this blog isn’t meant to provide this kind of information. Just because I’m against the War on Drugs, doesn’t mean I’m pro-drug use. And I doubt there’s a whole lot of good information on the internet for this one, but maybe I’m wrong.  (Or maybe the enquirer was just doing research for a term paper, who knows?)