Recent Changes to the Non-Disclosure law and sealing records

FIRST TIME MISDEMEANOR CONVICTIONS CAN NOW BE SEALED

The Texas Legislature passed a new law, SB 1902, regarding nondisclosures, or “sealing”. This new law changes the Texas nondisclosure statute drastically. Now many more defendants will be eligible to seal their cases.

State legislatures, including the Texas Legislature, are beginning to see the necessity of making it easier for those guilty of minor offenses to obtain employment so they can contribute to society as law-abiding, job-holding, tax-paying citizens and not penalized for the rest of their lives for one mistake made years in the past. The “Statement of Intent” for SB 1902 reflects this new mindset:

“ …giving reformed offenders a second chance and increasing the workforce with individuals who are no longer limited by their minor criminal histories.”

Below for our clients we have summarized the highlights of this new law. But as sifting through the criminal code and statutory provisions can be complex, call our office at 210-643-3071 to find out if your case is eligible for sealing under the new law:

  • The new law affects ONLY MISDEMEANORS. Nothing has been changed with regard to felonies.
  • The new law affects only misdemeanor offenses COMMITTED ON OR AFTER SEPTEMBER 1, 2015
  • Not all misdemeanor convictions are eligible for sealing under the new law; call our office.
  • To qualify to seal a misdemeanor conviction it must be a “1st time guilty plea” – that is, you must have no PRIORS that you have pleaded guilty to including no prior case that has been sealed. (If you do have priors, you may still be able to seal your misdemeanor after a deferred.) [“Conviction” means you did jail time or straight probation.]
  • Felony convictions remain ineligible for sealing. Felony deferreds can still be sealed after a 5-year waiting period, assuming all other qualifications are met.
  • Under the new law there may be some automatic sealing available for:
    • eligible misdemeanors
    • dismissed after deferred adjudication
    • that have no waiting period to seal.
  • As with the old law, you are ineligible if you plead guilty to any new case (except for fine-only traffic offenses ) AFTER pleading guilty to the case you are wanting to seal.
  • Entities able to obtain information on a case subject to a Nondisclosure Order remain the same with the addition of:
    • Banking and financial institutions
    • Critical infrastructure companies where applicants would handle hazardous materials
    • For a longer list of entities that can view sealed records information contact our office at 210-643-3071.
  • The list of offenses ineligible for sealing remains the same: DWI’s, liquor violation charges, family violence, serious cases of violence, many sexual offenses and offenses involving children.

Recent Changes to the Non-Disclosure Laws in Texas (Sealing of Records)

New Changes to the Non-Disclosure Law

2016

The following article is an attempt to summarize the changes made to Government Code §411.081(d).  However this information can be very difficult to apply to a person’s specific case.  Therefore if you have any questions about your case, sealing your record and non-disclosures, contact the Law Offices of Miguel Najera for a FREE CONSULTATION.

When does (did) the law come into effect?
The most important thing to know about any new law is when it becomes effective. The nondisclosure changes have an effective date of September 1, 2015, but the new statute applies only to offenses occurring on or after September 1, 2015, not petitions filed after that date.
The new nondisclosure statute has been spun out of §411.081(d) and now has spread over several sections of the Government Code, §411.071–077. Note that §411.081(d) was not repealed and continues to exist for the purposes of offenses occurring before September 1, 2015.

Base ­requirements for all ­nondisclosures
Although there are a number of new categories of nondisclosures, there are two base requirements that apply to every nondisclosure under the new law. If the petitioner cannot meet these requirements, then they is not eligible for a nondisclosure.
1)  The petitioner cannot have been convicted or placed on deferred adjudication for any offense (other than a fine-only traffic violation) at any time after the sentence was pronounced through any applicable waiting period.  Thus, if a person gets deferred adjudication on a case, but two months later they is convicted on another offense, they will not be able to get an order of nondisclosure on the deferred. The relevant consideration is when the person was actually convicted or placed on deferred, not the offense date. So if a person is charged with one offense in January, gets deferred on a second offense in May, and is not sentenced for the first offense until August, that offense will block them from receiving a nondisclosure on the deferred. If they pleaded to the January offense in April, however, that would not block a nondisclosure on the deferred because the plea occurred before they were placed on deferred.
2)The second base requirement is that the petitioner has never been convicted or placed on deferred for any offense out of a certain list.  This list includes any offense requiring registration as a sex offender, any case involving family violence, and any offenses under Penal Code §§19.02 (murder), 19.03 (capital murder), 20.04 (aggravated kidnapping), 20A.02 (trafficking of persons), 20A.03 (continuous trafficking of persons), 22.04 (injury to a child, elderly, or disabled), 22.041 (abandoning or endangering a child), 25.07 (violations of bond in family violence cases), 25.072 (repeated violations of bond in family violence cases), and 42.072 (stalking). This applies both to the offense which the person is seeking to have nondisclosed and any other offense in his criminal history. So if Joe received deferred adjudication on a family violence case, he is not eligible to have that case nondisclosed. But he would also be ineligible to have any future case nondisclosed because of the family violence case in his criminal history. Note that the statute applies to any case “involving family violence,” not merely to cases where there was an affirmative finding of family violence. Thus, if Joe received deferred adjudication on an assault without an affirmative finding of family violence, a future court could still look at the case to determine if it involved family violence and thus renders him ineligible for nondisclosure.

Five categories of nondisclosure
Once the petitioner has met the two base requirements, he then must fit into one of the five new categories of nondisclosure. If the petitioner does not meet the requirements of any of the five categories, then he is not entitled to an order of nondisclosure.
1. Deferred for Certain ­Misdemeanors (“Automatic Nondisclosures”): §411.072
The biggest point of discussion from the nondisclosure changes is definitely the so-called automatic nondisclosures. These changes were intended as a way to streamline the process for first-time, low-level offenders. By “low level,” the statute excludes a number of misdemeanors from consideration, including all misdemeanors under Penal Code Chapters 20 (kidnapping and unlawful restraint), 21 (indecent exposure and unlawful photography), 22 (assault, deadly conduct, terroristic threat), 25 (bigamy, enticing a child, criminal nonsupport, violation of protective order), 42 (disorderly conduct, harassment, animal cruelty), 43 (prostitution, sexting), 46 (unlawful carrying of a weapon, prohibited weapons), and 71 (engaging in organized criminal activity). If the petitioner was put on deferred for any misdemeanor under those chapters, he is not eligible for an automatic nondisclosure.

The next significant factor in automatic nondisclosures is that they are only for first offenders. Ordinary nondisclosures restrict only people previously convicted of certain offenses from obtaining an order, but automatic nondisclosures require that the person has never been convicted of or placed on deferred for any offense other than a fine-only traffic violation.  So if the petitioner has any prior convictions or deferreds, he is not eligible for an automatic nondisclosure.

Once the petitioner meets those two requirements, then the process is simple. He must successfully complete deferred and obtain an order of discharge and dismissal.  It also must be at least 180 days since he was placed on deferred. That means that a person whose probation lasted longer than six months can get a nondisclosure immediately upon completing probation. But if the probation lasted less than six months, he has to wait until six months have expired until he can get a nondisclosure.
One requirement for regular nondisclosures that does not have to be met in automatic nondisclosures is that the petitioner shows it is in the best interests of justice to issue the order. There is a similar provision, but it requires action earlier. Under the new Article 42.12, §5(k), when a trial court places a person on deferred, it must make an affirmative finding if it concludes that it would not be in the best interests of justice for the person to receive an automatic nondisclosure.  Thus, the State can make an argument on best interests of justice only at the time the person is placed on deferred. If that affirmative finding is made, then the person is ineligible to receive an automatic nondisclosure.

Finally, a big question on “automatic” nondisclosure orders is how they will be issued. Unfortunately, the law is not clear. The statute simply says that the court “shall issue” the order after determining whether the person meets the requirements of the statute. It also provides that a defendant is not required to file a petition. But the defendant is required to pay a fee and “present” to the court any evidence necessary to establish that she is eligible.  Evidence of eligibility would include the order placing her on deferred and the order of discharge and dismissal, as well as a criminal history search to verify she does not have any disqualifying prior convictions or deferreds. Exactly how or when this information is meant to be presented is left unclear, but the best analogy would be acquittal expunctions under the Code of Criminal Procedure.  Different counties may come up with their own preferred approaches to these cases.

2. Standard Deferred ­Nondisclosures: §411.0725


If a person received deferred adjudication but does not qualify for an automatic nondisclosure, then he would be considered for nondisclosure under §411.0725.  This would include anyone who received deferred for a felony or a misdemeanor in the prohibited list of §411.072, a person who received a §5(k) affirmative finding, or someone with a prior conviction or deferred. These operate exactly like a traditional nondisclosure. The person must show that he was placed on deferred, that he received a discharge and dismissal, that a waiting period has passed, and that issuance of the order is in the best interests of justice.

Waiting periods for §411.0725 nondisclosures are unchanged from earlier versions.  All felonies must wait five years. Misdemeanors under Chapters 20, 21, 22, 25, 42, 43, and 46—in other words, the misdemeanors barred from receiving an automatic nondisclosure—have a two-year waiting period. All other misdemeanors can be granted immediately. The waiting period begins to run only when the order of discharge and dismissal is signed, not when the supervision expires, so prosecutors must pay attention to when that order was actually signed.
These nondisclosures—and all nondisclosures other than automatic ones—require the petitioner to show that issuance of the order is in the best interests of justice.  This is the time to introduce any issues that do not technically disqualify someone from receiving a nondisclosure but that are still issues a judge might believe should not be sealed from public record. Examples might include several prior similar offenses—like if Ted has gotten deferred on numerous prior theft cases and now wants the latest one sealed, the court might believe his potential employers deserve to know he has a history of stealing. Or if the facts of a case were particularly heinous—perhaps a child sexual assault where the case was pleaded down to assault solely to prevent the young victim from testifying—the judge may conclude it is not in the best interests of justice to seal that record. These are considerations that will vary widely from case to case and judge to judge, so it is something we have to consider on an individual basis.

3. Straight Probation for ­Certain Misdemeanors: §411.073
Another huge change made to nondisclosure laws is allowing people who were convicted to still have their cases sealed, as opposed to limiting this option solely to deferred adjudication. There are two separate sections that allow this—§411.073 for community supervision cases and §411.0735 for jail time cases.

Under §411.073, a person may be eligible for a nondisclosure if she receives community supervision for certain misdemeanors.  Mostly intoxication-related offenses are precluded, including any misdemeanors under Alcoholic Beverage Code §106.041 (possession and/or consumption of or selling alcohol to minors) or Penal Code §§49.04 (driving while intoxicated), 49.05 (flying while intoxicated), 49.06 (boating while intoxicated), or 49.065 (operating an amusement park ride while intoxicated). Additionally, any conviction under Penal Code Chapter 71 (engaging in organized criminal activity) may not be nondisclosed.

For any offenses not on the prohibited list, the petitioner must successfully complete community supervision and receive a discharge and dismissal.  This section applies to anyone who served community supervision, even if he also served jail time such as through shock probation or as a term and condition of probation.  The waiting period for these cases is, again, two years for offenses under Penal Code Chapters 20, 21, 22, 25, 42, 43, or 46, or immediately for all other misdemeanors. The petitioner must still prove that issuance of the order is in the best interests of justice. But the petitioner must also show—as in automatic nondisclosures—that she was never convicted of or received deferred adjudication for any offense other than a fine-only traffic offense.  These nondisclosures are intended for first-time offenders only.

4. Misdemeanor Jail Time: §411.0735
Misdemeanor convictions that resulted in jail time are covered in their own section, but they operate much the same as straight probation cases. The person must have been convicted of a misdemeanor, but not for any of the prohibited offenses—generally intoxication offenses and engaging in organized criminal activity.  The waiting period for these cases is two years after the person is released from confinement.  Like straight probation cases, the petitioner must be a first-time offender. Any prior convictions or deferred, other than for a fine-only traffic offense, will disqualify him from receiving a nondisclosure.  Finally, the petitioner must show that issuance of the order is in the best interests of justice.

5. Human Trafficking Victims: §411.0728


This section will not likely be used very often because the requirements are very stringent, but for the situations where it occurs, here is your guide. This section applies only to people convicted of prostitution and sentenced to straight probation.  They must then successfully complete probation and have the conviction set aside under the so-called “judicial clemency” act, Article 42.12, §20(a) of the Code of Criminal Procedure.  If so, they may file a petition of nondisclosure and must convince the judge that they committed the offense solely as victims of human trafficking and that issuance of the order is in the best interests of justice.

Other considerations
Most of the other nondisclosure rules have stayed essentially the same in the recodification. Other than in automatic nondisclosures, a person must file a civil petition to be considered for a nondisclosure.  The trial court must then provide notice to the State. But unlike the old statute, a hearing is not required. The petitioner must only receive the opportunity for a hearing.  The State must request a hearing before the 45th day after it received notice of the petition.  Otherwise, the court may grant the order without a hearing if it can determine from the petition alone that the person meets all the requirements.
The new statute still does not give a right of appeal in nondisclosure cases. Generally, such cases cannot be appealed because they do not reach the required amount of controversy to vest jurisdiction in civil cases. But if a judge grants a nondisclosure to a person who is statutorily not entitled to it, the State may be able to seek a writ of mandamus to overturn the order. This would not apply to the discretionary sections, such as whether issuance was in the best interests of justice, but if a petitioner has a disqualifying prior conviction or the waiting period has not run, mandamus may be an option to obtain relief.
As ever, information about an offense subject to an order of nondisclosure may not be disclosed to anyone except 1) for criminal justice purposes, 2) to certain regulatory agencies, or 3) to the petitioner himself. The petitioner (or his attorney) is the only person who can obtain the records under that exception. He cannot generally waive a previously granted order of nondisclosure so that the agencies can disclose records to a third party.  The list of regulatory agencies remains generally unchanged, but banks and similar financial institutions are now included, so long as it is regarding an application for employment.  Similarly, employers of “critical infrastructure” are exempted regarding information about an employee or applicant who would be responsible for handling, manufacturing, or transporting certain hazardous materials.  Finally, while disclosure for criminal justice purposes has always been allowed, the new statute makes clear that any information subject to a nondisclosure order may still be admitted into evidence in a subsequent criminal case.

Conclusion
The nondisclosure statute has drastically changed. Many more people will shortly become eligible for nondisclosure than have ever been in the past.  However, statute is also more complicated than before, requiring more review to determine whether the petitioner meets the new requirements for nondisclosure. This article is only a summary of the changes to the law.

IF YOU HAVE ANY QUESTIONS OR WOULD LIKE MORE INFORMATION ON NON DISCLOSURES OR SEALING YOUR RECORD, CONTACT THE LAW OFFICES OF MIGUEL NAJERA FOR A FREE CONSULTATION.

 

Petitions and Orders of Nondisclosure Overview

What is an Order of Nondisclosure?

An order of nondisclosure is a court order prohibiting public entities such as courts and police departments from disclosing certain criminal records. If you have a criminal record, you may benefit from obtaining such an order. An order of nondisclosure also legally frees you from disclosing information about your criminal history in response to questions on job applications. You do not need to mention information related to the offense that is the subject of an order of nondisclosure. Please note that an order of nondisclosure applies to a particular criminal offense. The order does not apply to all offenses that may be on your criminal record, but you may obtain multiple orders of nondisclosure for multiple offenses. As mentioned above, an order of nondisclosure directs entities holding information about a certain offense on your criminal record to not release that information. This is a general rule. There are exceptions. Certain state agencies are still entitled to obtain information concerning an offense that is the subject of an order of nondisclosure.

 

Who is eligible for an Order of Nondisclosure?

Not all persons with criminal records are entitled to file a petition for an order of nondisclosure. You are entitled to file a petition only if six specified conditions are met. These conditions are set out below:

1. First, you must have been placed on deferred adjudication community supervision (hereinafter, “deferred adjudication”) for the offense in question. The court that placed you on deferred adjudication will have issued an order of deferred adjudication in your case. Ideally, you should attach a copy of your order of deferred adjudication to your petition. (While attaching a copy of your order of deferred adjudication Rev. 9/13 is not required, doing so may expedite the process of obtaining an order of nondisclosure.) You can obtain a copy of your order of deferred adjudication from the clerk of the court that placed you on deferred adjudication. Please note that if you were placed on deferred adjudication for an offense, you were not considered to be convicted. If you were convicted on an offense, you are not entitled to file a petition for an order of nondisclosure. This is the case even if you were placed on community supervision (i.e., probation) after being convicted.

2. Second, you must have successfully completed deferred adjudication. If you successfully completed deferred adjudication, the court that placed you on deferred adjudication should have issued an order of dismissal and discharge. Ideally, you should attach a copy of your order of dismissal and discharge to your petition. (While attaching a copy of your order of dismissal and discharge is not required, doing so may expedite the process of obtaining an order of nondisclosure.) You can obtain a copy of your order of dismissal and discharge from the clerk of the court that placed you on deferred adjudication. Please note that if you did not successfully complete deferred adjudication, you are not entitled to file a petition for an order of nondisclosure.

3. Third, the offense in question must be an offense for which you may obtain an order of nondisclosure. A person may be placed on deferred adjudication for a wide variety of offenses. Not all of these offenses, however, may be the subject of an order of nondisclosure. There are three categories of offenses that are not eligible for an order of nondisclosure. · The first category consists of violations of any of the following sections of the Texas Penal Code: 19.02, 19.03, 20.04, 22.04, 22.041, 25.07, and 42.072. The Texas Penal Code is available online at http://www.statutes.legis.state.tx.us. · The second category consists of offenses that require registration as a sex offender. Rev. 9/13 · The third category consists of offenses involving family violence. Please check your order of deferred adjudication to determine whether the offense in question falls in any of these three ineligible categories. If the offense falls in one of the three ineligible categories, you are not entitled to file a petition.

4. Fourth, you must not have any disqualifying criminal history. Here, the offense for which you are seeking an order of nondisclosure is not the concern. Rather, the concern is other offenses that may be part of your criminal record. There are three categories of offenses that will cause you to not be entitled to file a petition for an order of nondisclosure. If you have ever been convicted of (or placed on deferred adjudication for) any of these offenses, you are not entitled to file a petition. · The first category consists of violations of any of the following sections of the Texas Penal Code: 19.02, 19.03, 20.04, 22.04, 22.041, 25.07, and 42.072. · The second category consists of offenses that require registration as a sex offender. · The third category consists of offenses involving family violence. If you are unsure if you have a disqualifying criminal history, you may wish to check your criminal history record. You can obtain a copy of your criminal history record from the Texas Department of Public Safety (DPS). Procedures for obtaining your criminal history record can be found online at http://www.txdps.state.tx.us. Your criminal history record will list the offenses for which you have been convicted or placed on deferred adjudication. Your criminal history record will not show whether any of these offenses required registration as a sex offender, nor will your criminal history record reveal whether any of the offenses involved family violence. The underlying judgments of conviction and orders of deferred adjudication will reveal this information. Again, if you know your criminal history, you do not need to obtain your criminal history record. You are not required to attach your criminal Rev. 9/13 history record to your petition. You may, however, attach your criminal history record to your petition if you so desire.

5. Fifth, you must have waited a certain period of time after the court’s order of dismissal and discharge to seek an order of nondisclosure. · If the offense in question is a felony, you may not file a petition for an order of nondisclosure until the fifth anniversary after your dismissal and discharge. · If the offense is a misdemeanor under Chapter 20, 21, 22, 25, 42, or 46 of the Texas Penal Code, your wait is shorter. Specifically, you may not file a petition for an order of nondisclosure until the second anniversary after your dismissal and discharge. · For any other misdemeanor, there is no waiting period; you may file a petition seeking an order of nondisclosure once the Court issues an order of dismissal and discharge.

6. Sixth, you must not have been convicted of (or placed on deferred adjudication for) any criminal offenses during a special time period. A fine-only offense under the Texas Transportation Code does not count as a criminal offense for purposes of this requirement. In other words, a traffic ticket does not count as a conviction. The special time period begins on the date you were placed on deferred adjudication. The special time period ends on the date of your order of dismissal and discharge plus any applicable waiting period as described above. If you meet all six of the foregoing requirements, you are entitled to file a petition for order of nondisclosure.

How do I obtain an Order of Nondisclosure?

In order to obtain an order of nondisclosure, you must first file a petition for an order of nondisclosure with the proper court. The petition is to be filed with the clerk of the court that handled the offense for which you were placed Rev. 9/13 on deferred adjudication. You will have to pay a filing fees and other court costs.   Depending on county, this case be a very complicated process.  Therefore it is always best to hire a lawyer. A lawyer will be in the best position to advise you as to what you should do. Without the advice and help of a lawyer, you may not properly seek an order of nondisclosure. This may cause your petition for an order of nondisclosure to be denied.

So if  you are interested in finding out more about nondisclosure and if you qualify for one, contact the LAW OFFICES OF MIGUEL NAJERA immediately for a FREE and CONFIDENTIAL consultation.   The Law offices of Miguel Najera have experienced attorneys who can answer your questions and help you protect your rights and clean your record.  We serve San Antonio, Bexar County and surrounding areas.  Call us now at (210) 643-3071

New San Antonio, Bexar County Pre Trial Diversion Program for Felony Offenses

Below are the guidelines and general information on the San Antonio, Bexar County Pre-Trial Diversion Program concerning Felony offenses.  However, I recommend you call my office for  a free consultation so that I can personally speak with you and give you all the options available to you.  Remember that these programs are all time sensitive, so Call my office at (210) 643-3071 immediately so that I can start fighting for you!

Guidelines for Felony Pre-Trial Diversion Program
(PTD Program)
Acceptance into the program is not guaranteed. So please read carefully!

The Bexar County Criminal District Attorney’s Office reserves the sole right and discretion to accept or reject a Defendant for any reason whatsoever. Again, there is no right to participate in the PTD Program. The Bexar County Criminal District Attorney’s Office reserves the right to make exceptions, within its discretion, to these guidelines and program eligibility based upon any relevant factors or circumstances presented in a defendant’s application. Exceptions will only be made in extraordinary situations. Please do not advocate to any representative or employee of the Bexar County Criminal District Attorney’s Office for acceptance into the Pre-trial Diversion Program outside the actual application process. If additional information is required by the State, the attorney of record will be contacted via email with a request.

Please remember, no reason need be given for exclusion. It is within the sole discretion of the Bexar County Criminal District Attorney’s Office whether or not to allow an individual to participate in the PTD Program. There is no appeal/review from exclusion into the PTD Program upon notification thereof.
Who is eligible?

• The Defendant is a first offender charged under Chapter 481 of the Texas Controlled Substances Act
with:
- Possession of a Controlled Substance less than one gram, Penalty Group 1; Sec. 481.115(b)

- Possession of a Controlled Substance one gram or more but less than four grams, Penalty Group 1; Sec. 481.115(c)

- Possession of a Controlled Substance fewer than 20 abuse units, Penalty Group 1-A; Sec.481.1151(b)(1)

- Possession of a Controlled Substance 20 or more but fewer than 80 abuse units, Penalty Group 1-A; Sec. 481.1151(b)(2)

- Possession of a Controlled Substance less than one gram, Penalty Group 2; Sec. 481.116(b)

- Possession of a Controlled Substance one gram or more but less than four grams, Penalty Group 2, Sec. 481.116(c)

- Possession of a Controlled Substance four ounces or more but less than eight(8) ounces aggregate weight including adulterants and dilutants, Penalty Group 2-A; See Sec. 481.1161(b)(3)

- Possession of a Controlled Substance 28 grams or more but less than 60 grams aggregate weight including adulterants and dilutants, Penalty Group 3; See Sec. 481.117(c)

- Possession of a Controlled Substance 28 grams or more but less than 60 grams aggregate weight including adulterants and dilutants, Penalty Group 4; See Sec. 481.118(c)

- Possession of Marijuana four ounces or more but less than eight(8) ounces of a usuable quantity; See Sec. 481.121(b)(3)

• The Defendant can be of any age as long as it is their first criminal offense of any kind (excluding Class C Traffic Violations). • The Defendant is a U.S. citizen or legal resident.

 

Who is not eligible?

• The defendant is excluded if:
o The Defendant, whether as an adult or a juvenile, has a criminal conviction, deferred
adjudication, alternate sentencing, pre-trial diversion or deferred prosecution for any offense
excluding a class C traffic violation;
o The Defendant used or exhibited a deadly weapon during the commission of the offense;
o There is evidence or information suggesting the Defendant is engaged in the manufacture,
distribution or sale of any controlled substance;
o In arrears with court ordered child support.

 

How Does the Defendant Apply?

• The attorney of record must be registered through eDiscovery so they can send and receive email notifications and documentation.
• The initial application form must be submitted online by the attorney of record. The application will not be accepted in any other manner or location.
• The application and its requirements must be completed by the Defendant, scanned by the attorney of record and submitted online and the application fee paid within 60 days of the initial arrest. An at-large filing will not trigger the deadline; only an actual arrest and/or booking of the defendant will.
• All supporting documents must be uploaded and scanned to the email address DAPTD@BEXAR.ORG at the same time the actual application is submitted.
• There is a Grace Period for already pending cases with eligible Defendants. The deadline for submission of the application and supporting documents is 5 P.M., Friday, September 30th, 2016.
• The application fee is $50.00 and is non-refundable. This fee must be paid at the DA Cashier, Paul Elizondo Tower, 101 W. Nueva, 1st Floor (Hot Check Section Cashier). Cash, cashier’s check or money orders only. No personal, business or law firm checks will be accepted.
• Any form of payment must be payable to the ‘Bexar County Criminal District Attorney’s Office Felony PTD Program’. The Defendant’s name, case number and SID# must accompany the payment.
• The application must be accurate and fully complete upon submission, including all required supporting documents, or the Defendant will be excluded from the Pre-Trial Diversion Program. The Defendant upon receipt of an incomplete or inaccurate application. Please review all documentation carefully before submission.
• The State will attempt to respond within 30 days of the receipt of the Defendant’s application with the decision to approve or disapprove participation in the Pre-Trial Diversion Program. If no response is received within 30 days of submission, please send a follow up email requesting a response.
• Notification of acceptance into the PTD Program will be via email to the attorney of record.
• If the Defendant is accepted into the program, the attorney must set the case on the Court’s docket within 10 business days of notification. The Court will then hear the Agreed Motion for Continuance for the Purpose of Defendant’s Participation in the Pre-Trial Diversion Program.

 

What is required in the Application Packet of the Defendant for Pre-Trial Supervision?

• None of the following is negotiable for the purpose of participation in the PTD Program and must be complied with in their entirety.
• The Defendant must turn in the application packet within 60 days of their initial arrest for the offense charged. The 60 day deadline is firm.
• The Defendant must submit two letters of recommendation, from non-family members, along with contact information, in support of their application to the program. The letter of recommendation must affirmatively indicate the individual giving their opinion of the Defendant is personally aware of why they are being asked to do so. The State reserves the right to contact the individuals recommending the Defendant for the program.
• The Defendant must submit the results of a urinalysis with their application for the purpose of establishing a baseline.
• The Defendant must provide proof of employment, or proof they are actively seeking employment, or proof of school enrollment or some combination thereof unless otherwise exempted upon demonstrating good cause.
• The Defendant must fill out the portion of the application explaining why they should be allowed to participate in the Pre-Trial Diversion Program.
• The Defendant must stipulate to their guilt in exchange for participation in the Pre-Trial Diversion Program. Stipulations of Nolo Contendere will not be accepted.
• The Defendant must waive their Constitutional rights to a jury trial, to confront the witnesses against them and to remain silent in exchange for their participation in the program.
• If the Defendant is terminated from the program for any reason they agree the stipulation can be used against them as evidence of guilt in any subsequent prosecution of his or her case.

 

What will supervision of the Defendant involve if accepted into the PTD Program?

• Upon acceptance into the program, the Defendant will be supervised by the Bexar County Pretrial Services Department (Pretrial Services).
• The Bexar County Criminal District Attorney’s Office and/or Pretrial Services will set the terms and conditions of the Defendant’s supervision. Compliance is mandatory and non-negotiable.
• Supervision will be for a minimum of 1 year and may be extended up to 2 years by the Bexar County Criminal District Attorney’s Office depending on the Defendant’s rehabilitation needs. There is no‘early termination’.
• Fees:
o The Defendant must pay a $450.00 Program Fee;
o The Defendant must pay the $10.00 UA fee;
o The Defendant must pay the court appointed attorney fee if the attorney is not hired;
o The Defendant may also incur additional costs for any counseling, classes, drug treatment,
etc.; necessary for the rehabilitation of the Defendant.
o Restitution for the testing of the controlled substance must be paid in full up front. The
money order or cashier’s check will be payable on the first reporting day of their
supervision.
• The Defendant will be required to do a minimum of 80 community service hours as a condition of supervision. Community Service Hours may not be purchased or ‘bought out’, but actually performed.
• The Pretrial Services Department will notify the State of any violation of the terms and conditions of supervision.
• The Bexar County Criminal District Attorney’s Office reserves the right to terminate the Defendant’s supervision based upon any violation of the terms and conditions, regardless of its perceived seriousness, at any time.
• If the State decides to terminate the Defendant’s participation in the PTD program, the defendant and the attorney of record will be notified.
• There is no right to a termination hearing before the Court.
• The decision to terminate the Defendant’s supervision in the PTD Program is not appealable or reviewable, but within the sole discretion of the Bexar County Criminal District Attorney’s Office.

 

What happens if the Defendant successfully fulfills all the terms and conditions of the PreTrial Diversion Program?
• The Bexar County Criminal District Attorney’s Office will tender a dismissal to the Court in the Defendant’s case.
• The State will not oppose the Defendant’s immediate Petition for Expunction.
These guidelines are subject to change at any time at the sole discretion of the Bexar County Criminal District Attorney’s Office.

The New Bexar County District Attorney’s Office Misdemeanor Pre-Trial Diversion Program

San Antonio, Texas Bexar County District Attorney’s Office Pre-Trial Diversion Program

Recently under the new Administration of Nico Lahood in the Bexar County District Attorney’s Office, changes have been made to the pre-trial diversion program.  One of the most positive changes are the elimination of any age restriction as to whom could apply.  Below I have detailed out the guidelines for the new program.  This program is very important reguardless of the type of case a person has been arrested for.  Simple marijuana cases can affect your drivers license.  Shoplifitng or other theft cases can have  negative affect professional licensing.  Therefore this program is very important to first time offenders who are trying to keep their record clean keep the charge from affecting them for the rest of their lives!

There are timelines for admission to this program, so do not hesitate.  Contact me immediately and we can start the process of keeping your record clean.  If you have any questions or comments or have been accused or arrested for any crime, whether it be Felony, Misdemeanor, Drug case, Driving While Intoxicated DWI / DUI or any other type of case, please call my office for a FREE CONSULTATION. You need an experienced lawyer to fight for you, and we are here to help.

 

Guidelines for Misdemeanor Pre-Trial Diversion Program

(PTD Program)

 

 

Acceptance into the program is not guaranteed. So please read carefully!

 

 TheDistrictAttorney’s Office reserves the right to make exceptions, within its discretion, to these   guidelines and program eligibility based upon any relevant factors or circumstances presented in a defendant’s application. Exceptions will only be made in extraordinary situations.

 

Do not advocate to any representative or employee of the Bexar County Criminal District Attorney’s Office for acceptance into the Pre-trial Diversion Program outside the actual application process.

 

If additional information is required by the State, the attorney of record will be contacted via email with a request.

 

No reason need be given for exclusion. It is within the sole discretion of the Bexar County Criminal District Attorney’s Office whether or not to allow an individual to participate in the PTD Program.

 

There is no appeal/review from exclusion into the PTD Program upon notification thereof.

 

Who is eligible?

 

  • The Defendant is a first offender charged with an eligible misdemeanor offense (see excluded offenses below).
  • The Defendant can be of any age as long as it is their first offense.
  • The Defendant is a U.S. citizen or legal resident.
  • The State will review and consider all factors noted in the application materials.
  • The State will seek input from the victim (if any) when reviewing the Defendant’s application packet.
  • All cases will be reviewed on an individual basis to determine whether any particular defendant is eligible.
    • The Bexar County Criminal District Attorney’s Office reserves the sole right and discretion to reject the Defendant for any reason whatsoever. Again, there is no right to participate in the PTD Program.

 

Who is not eligible!

 

  • A defendant is excluded if:
    • The Defendant has a pending felony case. A dismissal of the felony, regardless of the reason, does not automatically result in eligibility.
    • The Defendant has a prior criminal conviction, deferred adjudication, alternate sentencing, or pre-trial diversion, including a juvenile offense but excluding a class C traffic violation.
    • The Defendant is charged with one of the following:
      • Driving While Intoxicated,
      • An offense which is sexual in nature (not including first time only Prostitution cases),
      • Burglary of a Vehicle,
      • Deadly Conduct,
      • An offense that involves Family Violence as defined under the law.
      • The Defendant is charged with multiple non-contemporaneous misdemeanor offenses.
      • The Defendant has victimized a vulnerable member of the community, including but not limited to, the elderly, the disabled or a child.
      • Used or exhibited a deadly weapon during the commission of the offense.
      • Is a documented gang member;
      • In arrears with court ordered child support.

 

 

How Does the Defendant Apply?

 

  • The attorney of record must be registered through eDiscovery so they can send and receive email notifications and documentation.
  • The initial application form must be submitted online by the attorney of record. The application will not be accepted in any other manner or location.
  • The application and its requirements must be completed by the Defendant, scanned by the attorney submitted online and the fee paid within 90 days of the initial arrest.
    • The application fee is $50.00 and is non-refundable. This fee must be paid at the DA Cashier, Paul Elizondo Tower, 101 W. Nueva, 1st Floor (Hot Check Section Cashier). Cash, cashier’s check or money orders only. No personal, business or law firm checks will be accepted.
    • The check must be payable to: Bexar County Criminal District Attorney’s Office – PTD Program.
      • The application must be accurate and fully complete upon submission, including all required supporting documents, or the Defendant will be excluded from the Pre-Trial Diversion Program. The State will not contact the attorney representing the defendant upon receipt of an incomplete or inaccurate application, so please review all documentation carefully before submission. The Bexar County Criminal District Attorney’s Office does not have the personnel and resources to review, notify and help complete or correct any submissions.
      • The State will attempt to respond within 30 days of the receipt of the Defendant’s application with the decision to approve or disapprove participation in the Pre-Trial Diversion Program. If  no response is received within 30 days of submission, please send a follow up email requesting a response.
      • Notification of acceptance into the PTD Program will be via email to the attorney of record.
      • If the Defendant is accepted into the program, the attorney must set the case on the Court’s docket within 14 days of notification. The Court will then hear the Agreed Motion for Continuance for the Purpose of Defendant’s Participation in the Pre-Trial Diversion Program.
        • The Grandfather Clause does NOT apply to a defendant previously rejected from the program, or a defendant within the age range of 17 to 21 who failed to submit an application by the deadline. Do not apply if the defendant fits into either category.

·         All supporting documents must be uploaded and scanned to the email address DAPTD@BEXAR.ORG at the same time the actual application is submitted.

The case number must accompany the payment.

·         There is a Grandfather Clause for pending cases. If the Defendant would have previously been denied participation due to their age, an application may be submitted within 90 days of the official launch date of this program. The launch date for the program is May 26, 2015. The 90 day deadline is firm.

 

What is required in the Application Packet of the Defendant for Pre-Trial Supervision?

 

  • The Defendant must turn in the application packet within 90 days of their initial arrest for the offense charged. The 90 day deadline is firm.
  • The Defendant must submit two letters of recommendation, from non-family members, along with contact information, in support of their application to the program. The State reserves the right to contact the individuals recommending the Defendant for the program.
  • The Defendant must submit the results of a urinalysis with their application for the purpose of establishing a baseline if needed.
  • The Defendant must provide proof of employment, or they are actively seeking employment, or school enrollment or some combination thereof unless otherwise exempted upon demonstrating good cause.
  • The Defendant must fill out the portion of the application explaining why they should be allowed to participate in the Pre-Trial Diversion Program.
    • The Defendant must stipulate to their guilt in exchange for participation in the Pre-Trial Diversion Program. Stipulations of Nolo Contendere will not be accepted.
    • The Defendant must waive their Constitutional rights to a jury trial, to confront the witnesses against them and to remain silent in exchange for their participation in the program.
    • If the Defendant is terminated from the program for any reason they agree the stipulation can be used against them as evidence of guilt in subsequent prosecution of their case.

·         None of the foregoing is negotiable for the purpose of participation in the PTD Program and must be complied with in their entirety.

 

What will supervision of the Defendant involve if accepted into the PTD Program?

 

  • Upon acceptance into the program, the Defendant will be supervised by the Bexar County Community Supervision and Corrections Department (CSCD).
  • The Defendant must undergo a screening by CSCD called the Texas Risk Assessment System (TRAS). CSCD will supervise the defendant based on the risk level and specific needs identified by this assessment. Compliance with recommendations, based upon the TRAS assessment, is mandatory and non-negotiable.
  • The State reserves the right to make additional recommendations regarding the Defendant’s supervision to the Community Supervision Department which are appropriate given the facts and circumstances of a particular case.
  • Supervision will typically range from 6 months (Class B) to 1 year (Class A), but can be shortened or extended up to two years by CSCD, depending on the Defendant’s rehabilitation needs, the seriousness of the offense, or other conditions the CSCD or State of Texas deem appropriate.
    • The Defendant must pay a $300.00 Program Fee. However, the fee is only $200.00 if paid before or upon the execution of the actual Pretrial Diversion Agreement. If the fee is paid up front, payment will be made through the DA cashier. If not, payment will be made through CSCD.
    • The Defendant will be responsible for a $60.00 per month fee to go to the Bexar County Community Supervisions Department for the cost of supervising the defendant.
    • The Defendant must pay the $10.00 UA fee, if UA’s are a condition of his/her supervision.
    • The Defendant must pay the $140.00 court appointed attorney fee if the attorney is not hired. o  The Defendant may also incur additional costs for any counseling, classes, urinalysis testing, drug treatment, etc. that the Community Supervisions Department deems necessary for the

·         Fees:

rehabilitation of the Defendant.

 

  • If restitution is owed, the defendant mustpay restitution in full up front. The money order or cashier’s check will be made payable to the complainant in the case and submitted to CSCD on the first reporting day of their supervision.
  • The Defendant will be required to do community service hours as a condition of the supervision (the minimum amount for a Class B is 24 hours and 48 hours for a Class A).  Community Service Hours
  • The Community Supervision department will notify the State of any violation of the terms and conditions of supervision.
  • The State reserves the right to terminate the Defendant’s supervision based upon any violation of the terms and conditions, regardless of its perceived seriousness, at any time.
  • If the State decides to terminate the Defendant’s participation in the PTD program, the defendant and the attorney of record will be notified.
  • There is no right to a termination hearing before the Court.
  • The decision to terminate the Defendant’s supervision in the PTD Program is not appealable or reviewable, but within the sole discretion of the Bexar County Criminal District Attorney’s Office.

 may not be purchased or ‘bought out’, but actually performed.

 

 

What happens if the Defendant successfully fulfills all the terms and conditions of the Pre- Trial Diversion Program?

 

  • The Bexar County Criminal District Attorney’s Office will tender a dismissal to the Court in the Defendant’s case.
  • The State will not oppose the Defendant’s immediate Petition for Expunction.

 

If you have any questions or comments or have been accused or arrested for any crime, whether it be Felony, Misdemeanor, Drug case, Driving While Intoxicated DWI / DUI or any other type of case, please call my office immediately for a FREE CONSULTATION. Remember waiting can result in losing eligibility to enter the program, so call today!

Statute of Limitations on Texas Crimes, Felony and Misdemeanor

Below are the statutes of limitation for criminal cases in Texas which set forth the time periods within which a legal proceeding must be commenced. If the state fails to bring a case within the specified time period, it loses its right to prosecute for that crime forever. In general, violent crimes have a longer statute of limitations, and with some crimes there is no statute of limitations. In certain instances, the statute of limitations may be tolled, or suspended, which grants the state additional time to commence a legal action.

Felonies in Texas

Felony Statute
Murder and manslaughter No time limit

Sexual assault or aggravated sexual assault No time limit

Offenses against young children No time limit

Leaving the scene of an accident which resulted in death No time limit

Trafficking of persons No time limit

Offenses related to theft by a fiduciary 10 years

Theft by a public servant of government property 10 years

Forgery 10 years

Injury to the elderly or disabled 10 years

Sexual assault or aggravated sexual assault 10 years

Arson 10 years

Compelling prostitution 10 years

Misapplication of fiduciary property 7 years

Securing execution of a document by deception 7 years

Money laundering 7 years

Credit card or debit card abuse 7 years

Fraudulent use or possession of identifying information 7 years

Bigamy 7 years

Medicaid fraud 7 years

Theft or robbery 5 years

Kidnapping or burglary 5 years

Injury to an elderly or disabled individual 5 years

Abandoning or endangering a child 5 years

Insurance fraud 5 years

Sexual performance by a child, if victim younger than 17 20 years from 18th birthday of the victim

Other felonies 3 years

Misdemeanors in Texas

Misdemeanor Statute
Prostitution, pimping, and pandering Within 2 years

Possession of up to two ounces of marijuana Within 2 years

Theft of property worth less than $50 Within 2 years

Other misdemeanors Within 2 years

DNA Evidence
There is no time limit for prosecution of sexual assault if testing of DNA gathered shows that it does not match the victim or any other person whose identity is readily ascertained.

Tolling Provisions
The period of limitation is suspended for:
time during which the accused is absent from the state
time during which the indictment, information, or complaint is filed in a court of competent jurisdiction, and ending with the day such accusation is, by an order of a trial court having jurisdiction, determined to be invalid for any reason

HOW TO CLEAN OR SEAL YOUR CRIMINAL RECORD WITH EITHER AN EXPUNCTION OR PETITION FOR NON DISCLOSURE

HOW TO CLEAN UP OR SEAL YOUR CRIMINAL RECORD

HAVE YOUR CASE EXPUNGED OR SEALED

DO YOU QUALIFY?

Normally there are two ways to clean up your criminal records, either through and expunction or through a petition of non-disclosure.  First you must qualify for one of those methods.  For more information please read below.

Expunctions

If you have ever been arrested for an offense which was either dismissed, acquitted, or reduced to a Class C misdemeanor, you may be eligible to have that incident permanently erased or sealed. Due to the Texas Open Records Act, arrest records can be accessed by the public for things like employment background checks, apartment leasing checks, lenders, adoption background checks, etc. This means landlords, future employers, lending companies, and others can discover any prior criminal conduct by simply searching for your name at the court house or on-line with several web based criminal record database companies. Unfortunately, once many of these people find out about your past legal problems, they may be reluctant to do business with you.

Give yourself a fresh start and get your case expunged. Once expunged, your criminal record, including finger prints, booking-photo, arrest report, local county records and DPS records, are all completely erased, as if it never happened.

Note: If you are eligible for an Expunction, you should contact an attorney to make sure that it is done right. If you are unsure if you qualify, contact the Law Office Miguel Najera immediately.  Waiting could have an effect on your eligibility to have your case expunged.

Petitions for Non-Disclosure

For those who are not eligible for an expunction, the next best thing to protect your reputation is an Order of Non-Disclosure. A person who has successfully completed a deferred adjudication probation may be able to obtain an order of non-disclosure from the court. Although it is not a total erasure order like an expunction, a non-disclosure order prevents government agencies from publicly disclosing criminal history information resulting from the offense. The criminal offense will determine whether a person is entitled to an order of nondisclosure and, if so, when such an order can be obtained.

For most misdemeanors, a person may file a petition for an order of nondisclosure immediately after the discharge from probation and dismissal of the offense. However, some misdemeanors require a defendant to wait anywhere between two and five years from the date of the discharge and dismissal of the misdemeanor offense. Those offenses include: unlawful restraint, public lewdness, indecent exposure, assault, deadly conduct, terroristic threat, disorderly conduct, harassment, unlawful carrying of a firearm, obstructing highway or other passageway, interference with emergency telephone call, stalking, and bigamy. During this two to five year period, the applicant must not have received anything more than a citation for a fine-only type traffic offense.

For most felony offenses, the applicant must wait five years from the date of the discharge and dismissal of the felony offense.

Not all defendants who successfully complete a deferred adjudication probation are entitled to an order of non-disclosure. A person is not eligible if he/she has ever been convicted or placed on deferred adjudication for: an offense requiring registration as a sex offender, aggravated kidnapping, murder, capital murder, injury to a child/elderly/disabled individual, abandoning or endangering a child, violations of a protective order or magistrate’s order, or any offense involving family violence.

Obtaining an order of non-disclosure is very advantageous. A person who receives an order of nondisclosure may deny ever having been arrested or prosecuted for the offense, unless the information is being used against the person in a subsequent criminal proceeding. However, an order of non-disclosure does not require the government to destroy the information. The information may be released to criminal justice agencies, non-criminal justice agencies authorized by statute or executive order to receive criminal history record information, and the person who is the subject of the criminal history information.

Private entities that compile and disseminate for compensation criminal history record information may not release information regarding an offense protected by an order of non-disclosure. A district court may issue a warning to a private entity for a first violation, but faces a civil penalty not to exceed $500 for each subsequent violation. The Attorney General or District Attorneys office may sue to collect.

Note: If you are eligible for an Expunction or a Petition for Non-Disclosure, you should contact an attorney to make sure that it is done right.  Call the Law offices of Miguel Najera immediately.  Waiting could affect your eligibility and prohibit your ability to have your case sealed.

San Antonio Bexar County Pre Trial Diversion Program

Recently under the new Administration of Nico Lahood in the Bexar County District Attorney’s Office, changes have been made to the pre-trial diversion program.  One of the most positive changes are the elimination of any age restriction as to whom could apply.  Below I have detailed out the guidelines for the new program.  This program is very important reguardless of the type of case a person has been arrested for.  Simple marijuana cases can affect your drivers license.  Shoplifitng or other theft cases can have  negative affect professional licensing.  Therefore this program is very important to first time offenders who are trying to keep their record clean keep the charge from affecting them for the rest of their lives!

There are timelines for admission to this program, so do not hesitate.  Contact me immediately and we can start the process of keeping your record clean.  If you have any questions or comments or have been accused or arrested for any crime, whether it be Felony, Misdemeanor, Drug case, Driving While Intoxicated DWI / DUI or any other type of case, please call my office for a FREE CONSULTATION. You need an experienced lawyer to fight for you, and we are here to help.

 

Guidelines for Misdemeanor Pre-Trial Diversion Program

(PTD Program)

 

 

Acceptance into the program is not guaranteed. So please read carefully!

 

 TheDistrictAttorney’s Office reserves the right to make exceptions, within its discretion, to these   guidelines and program eligibility based upon any relevant factors or circumstances presented in a defendant’s application. Exceptions will only be made in extraordinary situations.

 

Do not advocate to any representative or employee of the Bexar County Criminal District Attorney’s Office for acceptance into the Pre-trial Diversion Program outside the actual application process.

 

If additional information is required by the State, the attorney of record will be contacted via email with a request.

 

No reason need be given for exclusion. It is within the sole discretion of the Bexar County Criminal District Attorney’s Office whether or not to allow an individual to participate in the PTD Program.

 

There is no appeal/review from exclusion into the PTD Program upon notification thereof.

 

Who is eligible?

 

  • The Defendant is a first offender charged with an eligible misdemeanor offense (see excluded offenses below).
  • The Defendant can be of any age as long as it is their first offense.
  • The Defendant is a U.S. citizen or legal resident.
  • The State will review and consider all factors noted in the application materials.
  • The State will seek input from the victim (if any) when reviewing the Defendant’s application packet.
  • All cases will be reviewed on an individual basis to determine whether any particular defendant is eligible.
    • The Bexar County Criminal District Attorney’s Office reserves the sole right and discretion to reject the Defendant for any reason whatsoever. Again, there is no right to participate in the PTD Program.

 

Who is not eligible!

 

  • A defendant is excluded if:
    • The Defendant has a pending felony case. A dismissal of the felony, regardless of the reason, does not automatically result in eligibility.
    • The Defendant has a prior criminal conviction, deferred adjudication, alternate sentencing, or pre-trial diversion, including a juvenile offense but excluding a class C traffic violation.
    • The Defendant is charged with one of the following:
      • Driving While Intoxicated,
      • An offense which is sexual in nature (not including first time only Prostitution cases),
      • Burglary of a Vehicle,
      • Deadly Conduct,
      • An offense that involves Family Violence as defined under the law.
      • The Defendant is charged with multiple non-contemporaneous misdemeanor offenses.
      • The Defendant has victimized a vulnerable member of the community, including but not limited to, the elderly, the disabled or a child.
      • Used or exhibited a deadly weapon during the commission of the offense.
      • Is a documented gang member;
      • In arrears with court ordered child support.

 

 

How Does the Defendant Apply?

 

  • The attorney of record must be registered through eDiscovery so they can send and receive email notifications and documentation.
  • The initial application form must be submitted online by the attorney of record. The application will not be accepted in any other manner or location.
  • The application and its requirements must be completed by the Defendant, scanned by the attorney submitted online and the fee paid within 90 days of the initial arrest.
    • The application fee is $50.00 and is non-refundable. This fee must be paid at the DA Cashier, Paul Elizondo Tower, 101 W. Nueva, 1st Floor (Hot Check Section Cashier). Cash, cashier’s check or money orders only. No personal, business or law firm checks will be accepted.
    • The check must be payable to: Bexar County Criminal District Attorney’s Office – PTD Program.
      • The application must be accurate and fully complete upon submission, including all required supporting documents, or the Defendant will be excluded from the Pre-Trial Diversion Program. The State will not contact the attorney representing the defendant upon receipt of an incomplete or inaccurate application, so please review all documentation carefully before submission. The Bexar County Criminal District Attorney’s Office does not have the personnel and resources to review, notify and help complete or correct any submissions.
      • The State will attempt to respond within 30 days of the receipt of the Defendant’s application with the decision to approve or disapprove participation in the Pre-Trial Diversion Program. If  no response is received within 30 days of submission, please send a follow up email requesting a response.
      • Notification of acceptance into the PTD Program will be via email to the attorney of record.
      • If the Defendant is accepted into the program, the attorney must set the case on the Court’s docket within 14 days of notification. The Court will then hear the Agreed Motion for Continuance for the Purpose of Defendant’s Participation in the Pre-Trial Diversion Program.
        • The Grandfather Clause does NOT apply to a defendant previously rejected from the program, or a defendant within the age range of 17 to 21 who failed to submit an application by the deadline. Do not apply if the defendant fits into either category.

·         All supporting documents must be uploaded and scanned to the email address DAPTD@BEXAR.ORG at the same time the actual application is submitted.

The case number must accompany the payment.

·         There is a Grandfather Clause for pending cases. If the Defendant would have previously been denied participation due to their age, an application may be submitted within 90 days of the official launch date of this program. The launch date for the program is May 26, 2015. The 90 day deadline is firm.

 

What is required in the Application Packet of the Defendant for Pre-Trial Supervision?

 

  • The Defendant must turn in the application packet within 90 days of their initial arrest for the offense charged. The 90 day deadline is firm.
  • The Defendant must submit two letters of recommendation, from non-family members, along with contact information, in support of their application to the program. The State reserves the right to contact the individuals recommending the Defendant for the program.
  • The Defendant must submit the results of a urinalysis with their application for the purpose of establishing a baseline if needed.
  • The Defendant must provide proof of employment, or they are actively seeking employment, or school enrollment or some combination thereof unless otherwise exempted upon demonstrating good cause.
  • The Defendant must fill out the portion of the application explaining why they should be allowed to participate in the Pre-Trial Diversion Program.
    • The Defendant must stipulate to their guilt in exchange for participation in the Pre-Trial Diversion Program. Stipulations of Nolo Contendere will not be accepted.
    • The Defendant must waive their Constitutional rights to a jury trial, to confront the witnesses against them and to remain silent in exchange for their participation in the program.
    • If the Defendant is terminated from the program for any reason they agree the stipulation can be used against them as evidence of guilt in subsequent prosecution of their case.

·         None of the foregoing is negotiable for the purpose of participation in the PTD Program and must be complied with in their entirety.

 

What will supervision of the Defendant involve if accepted into the PTD Program?

 

  • Upon acceptance into the program, the Defendant will be supervised by the Bexar County Community Supervision and Corrections Department (CSCD).
  • The Defendant must undergo a screening by CSCD called the Texas Risk Assessment System (TRAS). CSCD will supervise the defendant based on the risk level and specific needs identified by this assessment. Compliance with recommendations, based upon the TRAS assessment, is mandatory and non-negotiable.
  • The State reserves the right to make additional recommendations regarding the Defendant’s supervision to the Community Supervision Department which are appropriate given the facts and circumstances of a particular case.
  • Supervision will typically range from 6 months (Class B) to 1 year (Class A), but can be shortened or extended up to two years by CSCD, depending on the Defendant’s rehabilitation needs, the seriousness of the offense, or other conditions the CSCD or State of Texas deem appropriate.
    • The Defendant must pay a $300.00 Program Fee. However, the fee is only $200.00 if paid before or upon the execution of the actual Pretrial Diversion Agreement. If the fee is paid up front, payment will be made through the DA cashier. If not, payment will be made through CSCD.
    • The Defendant will be responsible for a $60.00 per month fee to go to the Bexar County Community Supervisions Department for the cost of supervising the defendant.
    • The Defendant must pay the $10.00 UA fee, if UA’s are a condition of his/her supervision.
    • The Defendant must pay the $140.00 court appointed attorney fee if the attorney is not hired. o  The Defendant may also incur additional costs for any counseling, classes, urinalysis testing, drug treatment, etc. that the Community Supervisions Department deems necessary for the

·         Fees:

rehabilitation of the Defendant.

 

  • If restitution is owed, the defendant mustpay restitution in full up front. The money order or cashier’s check will be made payable to the complainant in the case and submitted to CSCD on the first reporting day of their supervision.
  • The Defendant will be required to do community service hours as a condition of the supervision (the minimum amount for a Class B is 24 hours and 48 hours for a Class A).  Community Service Hours
  • The Community Supervision department will notify the State of any violation of the terms and conditions of supervision.
  • The State reserves the right to terminate the Defendant’s supervision based upon any violation of the terms and conditions, regardless of its perceived seriousness, at any time.
  • If the State decides to terminate the Defendant’s participation in the PTD program, the defendant and the attorney of record will be notified.
  • There is no right to a termination hearing before the Court.
  • The decision to terminate the Defendant’s supervision in the PTD Program is not appealable or reviewable, but within the sole discretion of the Bexar County Criminal District Attorney’s Office.

 may not be purchased or ‘bought out’, but actually performed.

 

 

What happens if the Defendant successfully fulfills all the terms and conditions of the Pre- Trial Diversion Program?

 

  • The Bexar County Criminal District Attorney’s Office will tender a dismissal to the Court in the Defendant’s case.
  • The State will not oppose the Defendant’s immediate Petition for Expunction.

 

If you have any questions or comments or have been accused or arrested for any crime, whether it be Felony, Misdemeanor, Drug case, Driving While Intoxicated DWI / DUI or any other type of case, please call my office immediately for a FREE CONSULTATION. Remember waiting can result in losing eligibility to enter the program, so call today!

Driving While Intoxicated DWI Programs Offered in San Antonio (Bexar County)

Residents of Bexar County (San Antonio), Texas, now have an opportunity to agree to punishment in DWI cases that will avoid a conviction. Under the Bexar County “Taking Responsibility” plea bargain, certain accused persons may qualify to plead to Obstruction of a Highway and receive deferred adjudication community supervision. Under this type of probation, defendants may have their DWI Driving While Intoxicated arrest dismissed and request an Petition of Non-disclosure (seal their criminal history record). Obstruction of a Highway is an offense in which Texas law allows for Deferred Adjudication. Successful completion of Deferred Adjudication can be later sealed through a petition of non-disclosure.

Program Qualifications

To qualify, a person arrested for DWI must meet the following criteria:

Be a first time offender
Have a BAC (“Breath Alcohol Concentration”) of less than 0.15
Have caused no accidents or injuries
Behaved politely towards law enforcement
Agree within 90 days of arrest.
So, the “Taking Responsibility” plea is not available to many defendants. Those with a DWI-2nd, or DWI-3rd or More, or any Felony Intoxication offense are not eligible. Additionally, even a person accused of a first DWI involving an accident or extreme intoxication cannot receive this plea offer.

Conditions of Probation

The benefit of this plea agreement is that clients can avoid a conviction and seal their records. However, they must first fulfill certain terms and conditions of probation. Those terms and conditions include:

Completing a full year of probation (or more in some circumstances)
Installing an ignition interlock device (a machine that checks your BAC via breath test while operating your vehicle) for at least 6 months. The ignition interlock must be installed by an approved provider such as Smart Start, Intoxerlock or Dragger.
May not consume alcohol while on probation
Attend a DWI Victim Impact Panel (“DIP”)
Successfully complete a DWI education course
Take a Treatment Alternative to Incarceration Program (“TAIP”) Evaluation and follow any recommendations
Pay $850 in fines
Pay court costs (generally, around $350)
Perform 48 hours of community service restitution.
In some circumstances, a qualified DWI lawyers may be able to secure exceptions to the qualifications or terms and conditions. To place this in perspective, under the prior District Attorney, Susan Reed, “Taking Responsibility” plea bargainers were expected accept a conviction for Obstruction of a Highway on their permanent criminal record and complete up to 2 years of probation. This was not subject to an Order of Non-Disclosure. So, for defendants who are willing to complete the terms and conditions of probation, this deal is a good way to limit their risk of conviction for a DWI charge.

Is This A Good Deal for You?

Some individuals who are eligible may still want to reject this plea deal and fight their case. For example, in Texas, deferred adjudication for a Class B Misdemeanor or above will be disqualified from holding a Concealed Handgun License (“CDL”) for concealed carry purposes for 5 years. Commercial Driver’s License (“CDL”) holders may still have their CDLs suspended. Individuals with Texas State licenses or certificates may face additional hurdles in applying or renewing their licenses. For example, professionals regulated by the Texas Board of Nurses will need to include a copy of an Order of Non-Disclosure after completing their probation or face delays in having their application or renewal approved, even if their record is sealed.

Those clients requiring Federal Government review should know that the Federal Government generally considers Deferred Adjudication to be a conviction. So, for example, military personnel may face separate disciplinary action such as an Article 15 sanction and those with a security clearance may be downgraded or disqualified. Those individuals who are not United States citizens may face immigration consequences such as deportation, denial of citizenship or Permanent residency status, or denial of reentry privileges. Many applicants for military service will find themselves rejected despite the best efforts of their military recruiter.

However, an experienced DWI lawyer can help mitigate these collateral consequences of a DWI charge. Plus the sooner you are represented the better off you will be. Therefore contact the law offices of Miguel Najera and make your appointment for a free consultation.

Finally, a plea bargain will not resolve a license suspension so you may still want a lawyer for your ALR Hearing. Furthermore, those clients who need to expunge their records completely cannot take a plea deal and will need to fight their case to a jury trial. Only an experienced DWI lawyer should be used for these types of cases.

We know that some people suffer extraordinary collateral consequences from a DWI case, even where a conviction is avoided. These clients should know that we will bring a higher level of awareness and dedication to their cases.

Contact our San Antonio, Texas, law office after an arrest to learn how we can put our experience and resources to work protecting your rights and interests. Call 210-643-3071 for your free consultation.

 

Changes to the Misdemeanor Pre-Trial Diversion Program PTD-Program

Recently under the new Administration of Nico Lahood in the Bexar County District Attorney’s Office, changes have been made to the pre-trial diversion program.  One of the most positive changes are the elimination of any age restriction as to whom could apply.  Below I have detailed out the guidelines for the new program.  This program is very important reguardless of the type of case a person has been arrested for.  Simple marijuana cases can affect your drivers license.  Shoplifitng or other theft cases can have  negative affect professional licensing.  Therefore this program is very important to first time offenders who are trying to keep their record clean keep the charge from affecting them for the rest of their lives!

There are timelines for admission to this program, so do not hesitate.  Contact me immediately and we can start the process of keeping your record clean.  If you have any questions or comments or have been accused or arrested for any crime, whether it be Felony, Misdemeanor, Drug case, Driving While Intoxicated DWI / DUI or any other type of case, please call my office for a FREE CONSULTATION. You need an experienced lawyer to fight for you, and we are here to help.

 

Guidelines for Misdemeanor Pre-Trial Diversion Program

(PTD Program)

 

 

Acceptance into the program is not guaranteed. So please read carefully!

 

 TheDistrictAttorney’s Office reserves the right to make exceptions, within its discretion, to these   guidelines and program eligibility based upon any relevant factors or circumstances presented in a defendant’s application. Exceptions will only be made in extraordinary situations.

 

Do not advocate to any representative or employee of the Bexar County Criminal District Attorney’s Office for acceptance into the Pre-trial Diversion Program outside the actual application process.

 

If additional information is required by the State, the attorney of record will be contacted via email with a request.

 

No reason need be given for exclusion. It is within the sole discretion of the Bexar County Criminal District Attorney’s Office whether or not to allow an individual to participate in the PTD Program.

 

There is no appeal/review from exclusion into the PTD Program upon notification thereof.

 

Who is eligible?

 

  • The Defendant is a first offender charged with an eligible misdemeanor offense (see excluded offenses below).
  • The Defendant can be of any age as long as it is their first offense.
  • The Defendant is a U.S. citizen or legal resident.
  • The State will review and consider all factors noted in the application materials.
  • The State will seek input from the victim (if any) when reviewing the Defendant’s application packet.
  • All cases will be reviewed on an individual basis to determine whether any particular defendant is eligible.
    • The Bexar County Criminal District Attorney’s Office reserves the sole right and discretion to reject the Defendant for any reason whatsoever. Again, there is no right to participate in the PTD Program.

 

Who is not eligible!

 

  • A defendant is excluded if:
    • The Defendant has a pending felony case. A dismissal of the felony, regardless of the reason, does not automatically result in eligibility.
    • The Defendant has a prior criminal conviction, deferred adjudication, alternate sentencing, or pre-trial diversion, including a juvenile offense but excluding a class C traffic violation.
    • The Defendant is charged with one of the following:
      • Driving While Intoxicated,
      • An offense which is sexual in nature (not including first time only Prostitution cases),
      • Burglary of a Vehicle,
      • Deadly Conduct,
      • An offense that involves Family Violence as defined under the law.
      • The Defendant is charged with multiple non-contemporaneous misdemeanor offenses.
      • The Defendant has victimized a vulnerable member of the community, including but not limited to, the elderly, the disabled or a child.
      • Used or exhibited a deadly weapon during the commission of the offense.
      • Is a documented gang member;
      • In arrears with court ordered child support.

 

 

How Does the Defendant Apply?

 

  • The attorney of record must be registered through eDiscovery so they can send and receive email notifications and documentation.
  • The initial application form must be submitted online by the attorney of record. The application will not be accepted in any other manner or location.
  • The application and its requirements must be completed by the Defendant, scanned by the attorney submitted online and the fee paid within 90 days of the initial arrest.
    • The application fee is $50.00 and is non-refundable. This fee must be paid at the DA Cashier, Paul Elizondo Tower, 101 W. Nueva, 1st Floor (Hot Check Section Cashier). Cash, cashier’s check or money orders only. No personal, business or law firm checks will be accepted.
    • The check must be payable to: Bexar County Criminal District Attorney’s Office – PTD Program.
      • The application must be accurate and fully complete upon submission, including all required supporting documents, or the Defendant will be excluded from the Pre-Trial Diversion Program. The State will not contact the attorney representing the defendant upon receipt of an incomplete or inaccurate application, so please review all documentation carefully before submission. The Bexar County Criminal District Attorney’s Office does not have the personnel and resources to review, notify and help complete or correct any submissions.
      • The State will attempt to respond within 30 days of the receipt of the Defendant’s application with the decision to approve or disapprove participation in the Pre-Trial Diversion Program. If  no response is received within 30 days of submission, please send a follow up email requesting a response.
      • Notification of acceptance into the PTD Program will be via email to the attorney of record.
      • If the Defendant is accepted into the program, the attorney must set the case on the Court’s docket within 14 days of notification. The Court will then hear the Agreed Motion for Continuance for the Purpose of Defendant’s Participation in the Pre-Trial Diversion Program.
        • The Grandfather Clause does NOT apply to a defendant previously rejected from the program, or a defendant within the age range of 17 to 21 who failed to submit an application by the deadline. Do not apply if the defendant fits into either category.

·         All supporting documents must be uploaded and scanned to the email address DAPTD@BEXAR.ORG at the same time the actual application is submitted.

The case number must accompany the payment.

·         There is a Grandfather Clause for pending cases. If the Defendant would have previously been denied participation due to their age, an application may be submitted within 90 days of the official launch date of this program. The launch date for the program is May 26, 2015. The 90 day deadline is firm.

 

What is required in the Application Packet of the Defendant for Pre-Trial Supervision?

 

  • The Defendant must turn in the application packet within 90 days of their initial arrest for the offense charged. The 90 day deadline is firm.
  • The Defendant must submit two letters of recommendation, from non-family members, along with contact information, in support of their application to the program. The State reserves the right to contact the individuals recommending the Defendant for the program.
  • The Defendant must submit the results of a urinalysis with their application for the purpose of establishing a baseline if needed.
  • The Defendant must provide proof of employment, or they are actively seeking employment, or school enrollment or some combination thereof unless otherwise exempted upon demonstrating good cause.
  • The Defendant must fill out the portion of the application explaining why they should be allowed to participate in the Pre-Trial Diversion Program.
    • The Defendant must stipulate to their guilt in exchange for participation in the Pre-Trial Diversion Program. Stipulations of Nolo Contendere will not be accepted.
    • The Defendant must waive their Constitutional rights to a jury trial, to confront the witnesses against them and to remain silent in exchange for their participation in the program.
    • If the Defendant is terminated from the program for any reason they agree the stipulation can be used against them as evidence of guilt in subsequent prosecution of their case.

·         None of the foregoing is negotiable for the purpose of participation in the PTD Program and must be complied with in their entirety.

 

What will supervision of the Defendant involve if accepted into the PTD Program?

 

  • Upon acceptance into the program, the Defendant will be supervised by the Bexar County Community Supervision and Corrections Department (CSCD).
  • The Defendant must undergo a screening by CSCD called the Texas Risk Assessment System (TRAS). CSCD will supervise the defendant based on the risk level and specific needs identified by this assessment. Compliance with recommendations, based upon the TRAS assessment, is mandatory and non-negotiable.
  • The State reserves the right to make additional recommendations regarding the Defendant’s supervision to the Community Supervision Department which are appropriate given the facts and circumstances of a particular case.
  • Supervision will typically range from 6 months (Class B) to 1 year (Class A), but can be shortened or extended up to two years by CSCD, depending on the Defendant’s rehabilitation needs, the seriousness of the offense, or other conditions the CSCD or State of Texas deem appropriate.
    • The Defendant must pay a $300.00 Program Fee. However, the fee is only $200.00 if paid before or upon the execution of the actual Pretrial Diversion Agreement. If the fee is paid up front, payment will be made through the DA cashier. If not, payment will be made through CSCD.
    • The Defendant will be responsible for a $60.00 per month fee to go to the Bexar County Community Supervisions Department for the cost of supervising the defendant.
    • The Defendant must pay the $10.00 UA fee, if UA’s are a condition of his/her supervision.
    • The Defendant must pay the $140.00 court appointed attorney fee if the attorney is not hired. o  The Defendant may also incur additional costs for any counseling, classes, urinalysis testing, drug treatment, etc. that the Community Supervisions Department deems necessary for the

·         Fees:

rehabilitation of the Defendant.

 

  • If restitution is owed, the defendant mustpay restitution in full up front. The money order or cashier’s check will be made payable to the complainant in the case and submitted to CSCD on the first reporting day of their supervision.
  • The Defendant will be required to do community service hours as a condition of the supervision (the minimum amount for a Class B is 24 hours and 48 hours for a Class A).  Community Service Hours
  • The Community Supervision department will notify the State of any violation of the terms and conditions of supervision.
  • The State reserves the right to terminate the Defendant’s supervision based upon any violation of the terms and conditions, regardless of its perceived seriousness, at any time.
  • If the State decides to terminate the Defendant’s participation in the PTD program, the defendant and the attorney of record will be notified.
  • There is no right to a termination hearing before the Court.
  • The decision to terminate the Defendant’s supervision in the PTD Program is not appealable or reviewable, but within the sole discretion of the Bexar County Criminal District Attorney’s Office.

 may not be purchased or ‘bought out’, but actually performed.

 

 

What happens if the Defendant successfully fulfills all the terms and conditions of the Pre- Trial Diversion Program?

 

  • The Bexar County Criminal District Attorney’s Office will tender a dismissal to the Court in the Defendant’s case.
  • The State will not oppose the Defendant’s immediate Petition for Expunction.

 

If you have any questions or comments or have been accused or arrested for any crime, whether it be Felony, Misdemeanor, Drug case, Driving While Intoxicated DWI / DUI or any other type of case, please call my office immediately for a FREE CONSULTATION.