Kyle Therrian
Bo Kalabus
Jeremy Rosenthal
Derk Wadas

What Happens at a Juvenile Detention Hearing?

If your child has been arrested, you have probably been informed that he or she will be having a “juvenile detention hearing.”  If your child was arrested in Collin County this hearing will probably be held at the John R Roach Detention Center.  Under Chapter 54 of the Texas Family Code, your child is entitled to a detention hearing on the next working day following his or her arrest.  As long as you can be located, you are entitled to notice of this hearing, and anything your child says cannot be used against him or her at a later hearing or trial on the merits of the case (with the exception of if the child lies, in which case he could be prosecuted for perjury).  Unlike the adult system, at this point in the case, the judge is really just trying to get a feel for how the child is doing and what may be going on to trigger any sort of delinquent behavior, if any.

At this detention hearing, the judge will determine whether your child will go home (either to a parent or another relative who has agreed to take him) or be held at the detention center for another ten (10) working days until their next hearing date.  At the detention hearing, the judge will take into account five circumstances in determining whether or not to release your child:

  • Whether the child is likely to abscond or be removed from the jurisdiction of the court;
  • Whether suitable supervision, care of protection for the child is not being provided;
  • Whether there is a parent, guardian, or custodian who can return the child to court;
  • Whether the child may be dangerous to himself or others; and
  • Whether the child has been previously found to be delinquent.

If any one of these circumstances is present, the judge may continue detention for another ten (10) days.  If the judge decides to keep your child in custody, very often during the following ten (10) days, the probation officer, guardian ad litem, and others will conduct home studies for suggested placements for the child.  Sometimes, psychological and/or psychiatric evaluations are also ordered.  Typically a supervision plan will need to be in place before the child is released.

If the judge does order that your child is held for 10 more days, don’t panic.  It is not an indication of how good or bad the case is against your child or how severe the crime is necessarily, or even that your child would be in the juvenile detention facility long-term.  It is usually just a chance for probation to get a supervision plan in place that is acceptable to all parties involved.  This may mean that your child can come home to you with an adjustment in supervision, or it could mean that your child would stay with a trusted relative.  Often, if a placement is secured before the 10 business days is up, the hearing may be held sooner, so as to release the child as soon as possible.

A juvenile defense attorney can provide helpful advice throughout this process.

Tagged with: , , ,
Posted in Uncategorized

Sealing Juvenile Records

What is “sealing” a juvenile record?

Under Texas Family Code Chapter 58, sealing your juvenile record releases you from the requirement that you disclose your involvement in your juvenile proceedings to any employer, state licensing, or anyone else.

What happens if my record is not sealed?

If you do not have your record sealed anyone with a “legitimate interest” may request them.  This includes potential employers, educational institutions, and future landlords.  Because these people may see your record if it is not sealed, it is important that you make sure your records are sealed if you are eligible.

Is sealing of records self-executing?

No.  Juvenile records do not seal themselves.

What about automatic restriction of access to records?

In some situations, where a child has not been convicted of a new offense since he turned 17, his juvenile records will automatically be restricted once he turns 21 years old.  This is not as powerful as an actual sealing of the records, but it does restrict the access of the records such that only government agencies are able to look at them (i.e., for purposes of investigation).  It is important to note that automatic restriction of access to records does not happen in certain types of cases—for example, gang-related cases, cases which require a juvenile to register as a sex offender, or habitual felony conduct.

How does the sealing process work?

First your attorney must file an Application for Sealing of Files and Records, which includes information about your juvenile case(s).  At that point a judge will determine if your records may be sealed, and he will issue an Order for the Sealing of Files and Records in your case.  After this, agencies with information about your arrest will seal those records.

Tagged with: , ,
Posted in Uncategorized

Sanction Levels for Juvenile Offenders

When your child gets arrested, you may hear about different “sanction levels.”  That is because the State of Texas has made an effort to make sure juveniles face consequences that are uniform across the state.  Judges are given a lot of “wiggle room” in determining punishment for different offenses, but these sanction levels provide a good reference for how other children in similar circumstances are punished.  Most judges in Texas are focused not only on punishment, but also on making sure your child gets the services that he or she needs to ensure that delinquent behavior doesn’t happen again.  Each sanction level is listed under Texas Family Code Chapter 59.

Sanction level one is the lowest sanction, usually given to those juveniles with runaway and truancy issues.  Sanction level one may require counseling for these offenses.

Sanction level two usually corresponds to certain Class A and Class B Misdemeanors (theft up to $1500/shoplifting, criminal mischief, and possession of marijuana, for example).  This level puts the juvenile in Deferred Prosecution for 3-6 months.  The deferred prosecution program is essentially where a juvenile is placed on probation in exchange for a dismissal of the case, as long as they do everything they are supposed to while on probation.

Sanction level three is used for more serious misdemeanors (those involving weapons), state jail felonies (burglary of a building, injury to a child, elderly or disabled person), and third degree felonies involving large amounts of marijuana, criminal mischief, or theft over $1500.  The recommended sanction at this level is formal probation for 6 months or more.

The fourth sanction level includes second degree felonies like arson, burglary of a home, sexual assault, aggravated assault, and possession of dangerous drugs.  Sanction level four supervision calls for 3-12 months in an extra-intensive probation, followed by regular probation.

Sanction level five is for arson with injuries, serious injury to a child, aggravated robbery or aggravated sexual assault.  This level involves 6-12 months in a “highly structured secure correctional facility,” after which the juvenile may go on standard probation.

Sanction level six is reserved for first degree felonies involving a weapon.  In this situation, the juvenile could be sent to the Texas Youth Commission, a juvenile correctional facility, for 9-24 months.

The highest sanction level—Sanction Level 7—are for the worst offenses in the Texas Juvenile Justice System.  This sanction level may include 1-10 years in the Texas Youth Commission, including the possibility of being transferred to the adult criminal justice system.  Alternatively, a judge or a jury may impose probation for up to 10 years.

Additionally, sanction levels two through seven may all include restitution for damages occurring as a result of the child’s actions, if any.  As I mentioned above, each child’s case will be viewed with an eye toward what will work best for him or her, but these are the sanction guidelines as they appear in the Texas Family Code.

Tagged with: , ,
Posted in Uncategorized

Will My Child Be Tried as an Adult?

Oftentimes we hear about cases where a juvenile will be “tried as an adult.”  What does that mean?  It means that the juvenile court, which would otherwise have had jurisdiction in the child’s case, waives its jurisdiction and transfers the case to an adult district court, where the child is treated as an adult.  Juveniles are only transferred to adult district court in the most serious of cases.

The law governing transfer hearings is Chapter 54 of the Texas Family Code.  Three things must be present for a juvenile to be transferred to adult court.  First the crime alleged must be a felony, the child must be at least 14 (in some cases, 15), and after a full investigation, the juvenile court must have determined “that there is probable cause to believe that the child…committed the offense alleged and that because of the seriousness of the offense” or the child’s background, adult criminal proceedings are necessary.

Some of the factors the judge will look at in determining whether or not to transfer the case to adult district court are whether the crime was against a person or property (the case is more likely to be transferred if the crime is against a person), the level of maturity of the child, the seriousness of the crime, the child’s prior criminal record (if any), prior attempts to rehabilitate the child, and the court’s beliefs about whether future rehabilitation would work.  Only in the most serious cases are juveniles transferred to the adult district court.

Tagged with: , ,
Posted in Uncategorized

What Do I Tell My Boss After an Arrest?

This is a very common question. We aren’t employment lawyers, but I think we can help.

Unfortunately there isn’t a one-sized fit-all answer because every job is different.

What I can say is Texas is an “at-will” state meaning in most cases an employer can terminate you for a good reason, for a bad reason, or for no reason at all. I point this out to underscore how powerless most people are to begin with when it comes to their jobs in the first place. So it’s possible that you can do everything right and still be shown the door. But experience tells me that most employers aren’t in a big hurry to get rid of good help.

Some jobs may require disclosure and some jobs may not. A good place to start is always your employee handbook or employee manual if you have one. Be sure you understand your company’s policy.

So What Do I Tell Them?

I can’t think of any rule, law or regulation — even if you work for the government — which requires you to disclose anything other than the arrest itself.  Even if you work for law enforcement they have internal-affairs mechanisms to deal with getting information from an accused (but that’s pretty well outside the scope of today’s discussion.)

Anytime you tell others about the facts of the case you are creating another witness who could come to court and testify against you.  My guess is disclosure of the arrest in and of itself would normally be sufficient to put your employer on notice of your situation.

Professional Licensing Bodies

Also if you have a license such as a medical license, nursing license, or commercial driver’s license (as examples), you may also want to make sure you know the rules for reporting arrests that the state may require. Even though your employer may not care, a professional licensing agency certainly may!

Familiarize Yourself with the Proper Terminology

You should understand the precise terminology that your company may be asking for as well as understand the precise status of your situation — whether it be arrest, indictment, pre-trial, or whatever the case may be.

It is my experience that most employers are fairly respectful of the judicial process and don’t require you to confess to keep your job. Usually they just want to keep their finger on the pulse of your case and aren’t interested in the details until your case is over, and sometimes they may not have much of an interest at all.

Obviously if your arrest is related to your workplace then it’s a completely different ballgame. In any event, if you have any questions about these issues you should consult an attorney that can help you in complying with your workplace policies.

Posted in Criminal Defense, Uncategorized

The Top 3 Reasons to Refuse & To Take Field Sobriety Tests

This is a really hard question with no right answer.  Instead of throwing out what I would call a “tough-guy” blog saying you should always refuse any police request 100% of the time, I’ll give you my thoughts on taking field sobriety tests and let you decide whether you’d consent to them (or not) if you ever find yourself in that situation.

Top 3 Reasons to Refuse Field Sobriety Tests:

1.  The Officer has Already Made Up Their Mind Anyway.

One of the psychological underpinnings of submitting to field sobriety tests (“SFST’s”) is because you feel like you have a chance to persuade police to release you.  This assumption is often incorrect.  Though the term ‘manipulation’ is a bit harsh, that’s exactly what an officer does when he/she infers they have an open mind about your arrest when they actually do not.  It’s very common for police to use terms like “let’s make sure you’re okay to drive” to get someone who is reluctant to take tests — with the clear implication being the officer could decide to let you go.  But remember, deception is a legitimate tactic for law enforcement.

2.  You’re Going to Fail (On the Officer’s Scoresheet Anyway)

The grading criterion for the tests are, in theory, objective.  If you step off the line, it’s a clue of intoxication.  If you raise your arms more than 6 inches from your side, it’s a clue… etc., etc., etc.  But referees in football and basketball have “objective” standards too.  They let their emotions and biases interfere all the time.  A police officer is no different.  An officer grading SFST’s incorrectly isn’t trying to shaft the test subject but they see what they want to see.  When you read the officer’s arrest report after the arrest — I can promise you that very little of what you did right will make it into the report anyway.

3.  The Tests Are Quasi-Scientific but are Sold to the Jury as Fully Scientific

The National Highway Safety Transportation Administration (“NHTSA”) has developed a battery of 3 tests commonly given as a package.  You can read more about the specific tests here.  NHTSA will tell you by failing the 3 tests they can correlate those failures into a certain percentage which indicates a person has over a 0.08 blood alcohol concentration.  Sounds solid, right?

Here’s the problem.  There was no “control” group with the testing.  So they got all the test subjects drunk, gave them all the field sobriety tests and if 10% managed to pass while they were drunk, according to NHTSA, the SFST’s were therefore 90% accurate in predicting if someone blew over the legal limit.

But what they didn’t do was test people who hadn’t consumed any alcohol or who had consumed very little alcohol.  In other words, they never tested for a false-positive rate.  Wouldn’t you like to know if 25% of sober people would fail too?  Or if 50% of people with diagnosable anxiety disorders would also fail with little or no alcohol in their system?  Or if 75% of people with recent concussions would fail too?

Here’s the Top 3 Reasons You Should Consider Taking Field Sobriety Tests

1.  Don’t Be the Bad Guy

Jurors can’t understand why someone would refuse field sobriety tests.  When you refuse all the tests you are turning yourself into someone defiant and disrespectful to authority.  As a prosecutor, I don’t think I ever lost a case where the defendant refused all the field sobriety tests.

2.  You’re Getting Arrested if You Completely Refuse

Make no mistake about it — the officer just won’t snap his/her fingers and say “aw shucks” as you drive off into the sunset.  If you refuse all the tests you’re going to jail, end of story.  Believe it or not, some officers will let you go in borderline cases.

3.  Jurors Tend to Tune-Out the Officer’s Scoring Anyway

Even though, as I said above, the officer will fail you on his/her score sheet doesn’t mean the jury won’t pass you.  Jurors watching someone take the SFST’s are putting themselves in your shoes to see how they would react or do the test.  Many think “I couldn’t do that either.”  So even if you know you’re getting arrested, by being a good sport and doing your best on the test — a jury may ultimately side with you anyway.

Ultimately the decision to take field sobriety tests is yours and yours alone.  I hope this discussion helps.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about this topic or any other you should consult an attorney directly.

Posted in DWI

Differences Between the Juvenile Justice System and the Adult Criminal Justice System

You often hear about people being in the juvenile criminal justice system, and you may wonder “what exactly is the difference between the adult criminal justice system and the system that deals with juveniles?”  There are several things about the juvenile system that differ from the adult system because of the age(s) of the accused.  It is important to remember that although a child (up to age 17) will be placed in the juvenile system by default, occasionally they may be tried as an adult.  This will happen on occasions when the children are older (about 15-17 years old), and the crime is particularly bad (for example, a murder).

The first difference your child will notice after being arrested, is that he would be taken to a detention facility separate from the jail.  For example, in Collin County, adults are transported to the Collin County Detention Center, and juveniles are transported to the separate Collin County Juvenile Detention Center.  Unlike adult jail, where inmates can choose to sit all day or take part in the inmate worker program, those detained in the juvenile detention center are required to participate in academic education and other programs designed to give the detainees structure and continued growth throughout their time there.

Another difference between the two systems is that the adult system is focused somewhat on rehabilitation, but largely on punishment and retribution.  The juvenile system touts itself as being all about rehabilitation.  It may be that your child does not need rehabilitation—he or she could be a great kid who is getting pinned with something he or she didn’t do, or even if they did do it, maybe it was just a bad decision by an otherwise great child.  Either way, it is important for you to understand that the juvenile system is structured in such a way that you will hear the state, judges, guardians ad litem, and almost everyone else involved in the case speak about your child as though he or she needs it, although you and your child’s attorney may understand that that is not the case at all.

Because the focus in juvenile cases is less retributive and more rehabilitative, your lawyer has many different options to help you seal the records.  According to Texas Family Code 58.003(a), a juvenile may have his or her record sealed, the effect of which is to remove the incident from the juvenile’s criminal history, if it has been two years since the discharge of the case and the child has not gotten in any more significant trouble (i.e. no felonies, misdemeanors involving moral turpitude, or other actions requiring supervision).

Finally, in the adult system someone convicted is said to be “found guilty” whereas in the juvenile system a child is said to be “adjudicated to have engaged in delinquent conduct.”

Some of these differences are minute, but they should help you better understand the general approach in juvenile criminal justice as opposed to the adult system.

Posted in Uncategorized

What Happens on Juvenile Probation?

Juvenile cases often end in some type of probation, so if your child is going through the juvenile criminal justice system, it is worth taking the time to learn what can be required as a condition of juvenile probation.

If your child is considering resolving the case in a way that involves probation, the court and the state are given relatively wide latitude in determining what those conditions may be.  First of all, your child would be assigned to a Probation Officer.  This officer will be the one your child will report to on a regular basis.

When your child agrees to do probation, he or she is given a copy of the terms.  It is very important that your child get these terms in writing and adhere to them.  There are a few terms that are particularly common.  Community service is almost always required by law, so your child will likely be required to complete a certain number of community service hours. The probation officer can give you guidance on the specific places that community service is acceptable, but usually it needs to be in a place related to the alleged offense, if possible.  For example, if the offense is alcohol-related, your child may be asked to spend a certain number of hours serving at a center for victims of drunk driving.

Terms of probation may also include a curfew imposed by the court, particularly strict school attendance, counseling, or participation in certain clubs or activities outside of school.  If someone was physically hurt or property was damaged or stolen, probation may require your child to pay restitution to offset any costs or losses incurred by the alleged victim.

In some cases, particularly alcohol and drug-related offenses, your child may face suspension of his or her driver’s license.  If they do face such a suspension, it will not be for more than one year.

Finally, parents are expected to play a role in their child’s probation.  Though the parent obviously isn’t on probation – it might be hard for the parent not to feel this way.  Parents are charged with insuring that their children comply and, in some instances, even reporting violations.

This is just an overview of some common terms of probation, and the state and the court sometimes get very creative in determining those terms, but it should give you a good idea of what juvenile probation typically looks like.

Tagged with: , ,
Posted in Uncategorized

What Is Deferred Prosecution for Juveniles?

One very common outcome in juvenile cases is what is called “deferred prosecution” governed by Texas Family Code 53.03.  Deferred prosecution essentially dismisses the charges in exchange for serving probation.  When entering a deferred prosecution deal with the prosecutors, the juvenile doesn’t even have to admit guilt.  The case against the juvenile is paused while the juvenile attempts to complete probation.  If the juvenile successfully completes probation the case against them is dismissed.

The beauty of Deferred Prosecution is if the juvenile violates the terms – the case against them is merely unabated (or un-paused) and proceeds normally as if the deferred prosecution never happened.  This is different from deferred adjudication in the adult system where a violation would result only in increased punishment and the defendant wouldn’t have the ability to contest the original underlying case.

Another advantage the juvenile system has over the adult system is the juvenile has an absolute right under the family code to petition the Court for deferred prosecution over the objection of the prosecutor.  In the adult system the District Attorney’s office can and will arbitrarily bar otherwise good candidates from making a deal to clear their record.

Deferred prosecution for juvenile cases also shouldn’t be confused with the Collin County District Attorney’s deferred prosecution program.  That program is for adults typically charged with misdemeanor or low-grade felony cases and does require an admission of guilt in exchange for informal probation.

Tagged with: , ,
Posted in Uncategorized

What Should I Do Now That My Child Has Been Arrested or Detained?

Once your child is in the criminal justice system, it is only natural that you would have questions about what to do next.  First of all, it is important to know what information you are entitled to.  Well-intentioned law enforcement officers will invariably share facts of the case with you – and you shouldn’t be surprised when their version corroborates their decision to arrest.

Under Texas Family Code Section 61.102(a), there are things you are entitled to know as soon as possible after your child is referred to the juvenile system.  Those things are:

1)      date and time of the offense;

2)      date and time the child was taken into custody;

3)      the name of the offense and its penal category (Class A Misdemeanor, Class B Misdemeanor, State Jail Felony, Third-Degree Felony, etc.);

4)      the type of weapon, if any, that was used;

5)      the type of property that was taken or damaged and the extent of damage, if any;

6)      the physical injuries if any, to the victim of the offense;

7)      whether there is reason to believe that the offense was gang-related;

8)      whether there is reason to believe that the offense was related to consumption of alcohol or use of an illegal controlled substance;

9)       if the child was taken into custody with adults or other juveniles, the names of those persons;

10)   the aspects of the juvenile court process that apply to the child;

11)   if the child is in detention, the visitation policy of the detention facility that applies to the child;

12)   the child’s right to be represented by an attorney and the local standards and procedures for determining whether the parent qualifies for appointment of counsel to represent the child; and

13)   the methods by which the parent can assist the child with the legal process.

Always get an attorney for a juvenile arrest.  Well-intentioned people in the law enforcement community will give you their uninformed opinion about how to handle the case, but these are people who won’t have to live with the consequences of decisions made going forward.  An attorney will be able to not only answer your immediate questions, but also explain the process to you in a detailed way that may put some of your fears to rest.  An attorney will be able to scrutinize your child’s case to determine if the arrest was unlawful, if the police officer made an error in his report or investigation, or if your child’s rights were otherwise violated in some way.  Attorneys see these types of cases every day and are very good at sorting out weaknesses in the State’s case against your child.  Further, even if their case against your child is ironclad, you need an attorney to help negotiate any type of plea deal that your child may want to take.

Regardless of whether or not your child made a mistake – an attorney can properly advise of steps to take to mitigate consequences such as drug rehabilitation or community service.

Know your rights, get an attorney, and help your child be pro-active!

Tagged with: , , ,
Posted in Uncategorized

Contact Us Today!

  • This field is for validation purposes and should be left unchanged.