ATTORNEYS AT LAW AND MEDIATION CENTER
Expunctions and Non-Disclosures: Legislative Changes for Dealing with an Ugly Past
Expunction and non-disclosure orders are ways for individuals accused or charged with certain crimes to move forward without being saddled with their past criminal history. They do so by sealing certain records from the public’s view. Though our firm offers free expunction evaluations, if a person is not eligible for an expunction or non-disclosure order, we always suggest that they seek a re-review of their history every couple of years. The reason we make this suggestion is because the law is subject to change with every legislative cycle. This 2017 Legislative Session was no exception. Historically, the expunction and non-disclosure statutes have been very limited. Only certain offenses were eligible for expunctions or non-disclosure. After September 1, 2017, more individuals will be eligible for non-disclosures or expunctions than ever allowed in Texas' legislative history. Here is a summary of some of those changes:
1. Certain non-violent misdemeanor convictions can now be subject to a non-disclosure order.
2. Individuals with lower level DWI convictions can now seek a non-disclosure order.
3. Veterans participating in pretrial diversion programs can also seek non-disclosure orders.
4. Many fine-only offenses are now eligible for expunctions.
If you spoke to an attorney prior to 2017 and they advised you that your case or facts of your history were not eligible for an expunction or non-disclosure order, then consider a second, updated opinion as most of these changes were made retroactive. This means the new changes in these laws will apply to events that occurred prior to September 1, 2017.
If you need this type of relief, don't delay in seeking the expunction or non-disclosure. As the legislature can "giveth", it can also "taketh." Meaning, that these expanded opportunities are only authorized until such time as the Legislature changes it's mind. This is a window of opportunity for individuals who have been saddled with a false history or certain embarrassing incidents from their youth.
The Cops Took My Stuff!!
You were at home and minding your own business… when the police come with a search warrant for you home. During the search, the police start hauling out anything of value including televisions, cash, and the first motorcycle you purchased in high school. A couple of days later, you are served with paperwork telling you that your property was seized by the State as alleged proceeds of drug dealing. The paperwork also tells you that you have 20 days to answer… so you call the officer and ask him/her if you have to do anything. They tell you that you don’t have to do anything…. But conveniently forget to tell you that if you do nothing, then you will lose all of your property by default.
What you have actually been served with is a notice of seizure. The State is required to give you this notice if they intend to keep your stuff. The rules of civil procedure apply to these types of seizure. This means that if you do not file an answer by the end of 20 days, then a default judgment can be entered against you without any other hearings or notice. A default judgment is what the name implies—a judgment that happens because you failed to file an answer.
Even though seizures are civil matters, you should visit with a criminal attorney before filing an answer to decide if you should file one or not. Once you file an answer, then the State could file additional motions against you. A criminal attorney can help you decide whether or not filing an answer will save your stuff or expose you to further criminal liability.
*This is not a substitute for legal advice. Any person accused of a crime should consult with an attorney for more information specific to their case.
CPS: With Friends like this……Who needs enemies?
There is a children’s movie called “Bugs Life” that features a dysfunctional ant named “Flick” who is constantly causing problems for the colony, despite his best intentions. Early in the movie, one ant tells Flick, “Help…. Don’t help.” When I think of CPS, that statement constantly comes to mind: more families would probably be helped if CPS didn’t help. The organization that most people know as “CPS” is now actually the Department of Family and Protective Services. A few years ago, they changed the name which I suspect was to make it a bit more “family friendly” sounding. Despite the name change, they have still struggled with public perception issues as an organization that consistently fails in its general objectives to protect children and reunify families.
Historically, concerns raised by attorneys and litigants about the conduct of CPS workers or their policies were overshadowed or dismissed by the general belief held by judges that CPS workers were honest, competent, or sufficiently staffed/equipped to respond to the needs of children affected by CPS investigations. Below this blog is a copy an opinion by Janis Graham Jack, Senior United States District Judge, published on December 17, 2015. Throughout her 255 page opinion, she documents the historical and current state of the Texas CPS system. Through this opinion, the judiciary formally recognized that the CPS system in Texas is broken. Her findings included:
“Texas’s foster care system is broken and it has been that way for decades.”
“….foster children often age out of care more damaged than when they entered.”
That “the DFPS’s disregard of investigations, child-on-child abuse, enforcement, and appropriate staffing levels show that DFPS substantially departs from professional judgment toward RCCL operations.”
“It also appears that a corollary of inappropriate placement is overmedication.”
These are frightening findings for a system that the legislator initially intended to protect children. Despite concerns about the system, many parents in custody disputes attempt to use CPS as a tool to get a “leg up” in their custody dispute. Before calling CPS, any parent that cares about the safety and well-being of their children should consider whether or not their child is truly at risk of harm. We have met more than one parent that called CPS to report abuse by the other parent, only to find themselves being investigated by CPS and their children subject to removal into a tragically damaged foster care system. If you suspect that your child has been injured by the other parent, the first phone call should be to a doctor to determine if the injuries are serious. If the doctor determines that the injuries are concerning, the doctor has a mandatory duty to report the event to CPS and/or law enforcement. From there, you will have at least one professional, i.e. the doctor, that is willing and able to look at your situation professionally and objectively… even if CPS neglects to enter the picture.
Maybe one day, CPS will be like Flick in the little “Bugs Life” movie and get it together. Justice Janis Jack has appointed a Special Master to make recommendations to improve the CPS system in Texas. But until then, help yourself by cautiously calling CPS for help - unless it is really required or needed. Calling CPS to simply inflame a custody fight is never a clever move considering the substantial risk to your children. This opinion by Justice Janis Jack punctuates the risk to your children. If you are concerned about your children, but it doesn’t rise to the level of a CPS investigation, you still have options to safely protect your children. These options could include protective orders, restraining orders, random drug testing through the divorce court, and court ordered family counseling. More and more jurisdictions are offering programs for families that are struggling through the process of finalizing custody disputes outside of the CPS system. Visit with an attorney in your jurisdiction to learn what options are available in your jurisdiction and within the Family Code to help your children without subjecting them to foster care abuse.
Where there is a "Will" there's a way: Deciding when to write a Will.
Individuals will frequently hire our firm to assist with a medical power of attorney or medical directive right before they are to have a surgery or medical procedure. As we discuss the best and worst case scenarios of what could happen in the procedure, the discussion of a drafting a Will inevitably arises. Many people tell me, “I don’t like thinking about death….so I’ll just let my family fight out what to do.” However, as we start to visit regarding their eventual goals for their family, they learn that a Will can provide protection and a peaceful passing for them and their family. Wills are not just about “who gets what”. Wills are tools to express how and where you would like to be buried. Wills can set aside resources to pay for the burial so that your last wishes are actually realized. Wills can also be used to express your wishes regarding young children. If something happens to you, who do you want to act as the guardian of any gifts to your minor children. A properly executed Will can save your family from the additional grief of “guessing” what you wanted to happen. The process of writing a will isn’t just about the process of dying, it’s about planning for a peaceful planning so that your loved ones can move forward.
Disclaimer: The information in this website is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this site should be construed as legal advice from this law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this site without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.
Target Off Your Back
The first of this month premiered the release of Target on My Back, Erleigh Wiley’s perspective and thoughts surrounding the Eric Williams' murders in 2013. My apologies to Erleigh as I haven’t read the book yet…but the book’s release did inspire me to look at the community of Kaufman since those events took place in Kaufman. In 2013, the Kaufman community was literally plagued by a mad man. It became the focus of a media frenzy. Our lives became a source of someone else’s entertainment. Yet, this community survived. The same week that Erliegh’s book was being released, a group of agencies, community leaders, and volunteers met for the fifth annual Mental Health Expo. It was held in the cafeteria of the local junior high in the City of Kaufman. City Councilman, Charles Gillenwater, lead the group in a prayer as the event kicked off. Judge Dennis Jones went from table to table collecting info to be used in one of his local court programs. Family members visited with volunteers about options for loved ones who were struggling with mental illness. Dozens of volunteers manned tables to help distribute information and educate the public about the resources available in Kaufman area. Booths and tables addressed the needs of anyone struggling to overcome a mental health issue, whether the result of drug use, domestic abuse, aging, or other medical diagnosis. It was nothing short of beautiful. These were some of the same people that knew Eric Williams and had been affected in their own way by the murders. Most of these people lived in the Kaufman Community in 2013. However, instead of cowering in fear over someone who may or may not have a mental health issue, they have chosen to be part of the solution. Their solution: to raise awareness, provide more resources, and to increase the coordination of efforts for anyone in need.
This blog is not about the book, but it is about how people feel. Life is often overwhelming. If you’re in a domestic violence situation, everyday feels like you are living with a target on your back. If you have a mental illness related to aging, drug use, or some other condition, it can feel like you are the target of other people’s ignorance or lack of compassion for your situation. When you feel targeted, it’s easy to get stuck in the past. My message to you is: Instead of feeling like the target, begin targeting the resources in your community. Even the smallest of communities have something to offer…it’s just a matter of finding those resources. In the Kaufman and Henderson area alone, at least 20 groups and agencies participated in this 2017 Mental Health Expo. We have many of them are featured on our resource page which we invite you to use. Even though legal issues and mental health issues overlap, the root cause between the two often ends up being the mental health concerns. Kaufman is more than a sleepy little community. It is a community rich with agencies and people with the heart to help you turn the page. Their sole goal is to arm you with the resources and tools to write that new chapter in your own book that you can eventually title: “Target Off My Back”.
**For those interested in learning more about community resources, we also encourage you to attend the Sharing Community Resources Coalition meeting, held the fourth Thursday of every month from 10:00 to 11:30 at the Kaufman County Library.
Knowledge is Power!
My Niece is accusing me of rape!!
You notice that everyone in the family is suddenly avoiding you… and then you receive a call from a detective wanted to go over some allegations. During the call you learn that your niece is claiming that you sexually assaulted her two years ago. After the call, the think to yourself, “this can’t be right… the only evidence is her statement.” You hope that once the detective realizes that his only evidence is your niece’s statement…. that the charges will just go away. When your name appears in the next month’s list of indictments in the newspaper, you suddenly realize that the charges not going away...and instead, are proceeding forward in the worst way possible.
This is a common situation for many people accused of any type of sexual offense. Even though many juries prefer some type of DNA or forensic evidence, the law does not require the State to produce this type of evidence in order to convict you. If the child testifies and the jury believes the child “beyond a reasonable doubt” then a defendant can be convicted of sexual offense. If the jury does not believe the child and the only evidence is the child’s testimony, then a jury cannot convict the defendant. A variety of minor details can sway a jury. Before talking to an officer or detective, a person accused of any sexual offense should visit with a criminal defense attorney to understand and factors that could influence their case.
*This is not a substitute for legal advice. Any person accused of a crime should consult with an attorney for more information specific to their case.
Trudging without a Will: 2017 Legislative Changes to Probate Requirements
We encourage our clients to write a Will so that their wishes are honored and their passing will be less stressful on family members. However, despite their best intentions, many people just never get around to the task. Probate can impose a financial burden on many small estates. To relieve this pressure, the Legislature invented Small Estate Affidavits to help resolve certain small estates without the necessity of the full probate process. Historically, these estates were capped at $50,000.00. After the 2017 Legislative session, this capped was raised to $75,000.00. This means that more families may be able to avoid the expense of probate with Small Estate Affidavits. To insure that the affidavits are properly executed, we recommend at least having your affidavits reviewed by an attorney to insure their compliance with these new changes in the law.
Grand-parent custody: Supreme Court of Texas ruling affects grand-parent rights
Most people are familiar with the concept of "Grand-parent rights" and the limited options that grand-parents have to file a motion requesting access to their grand-children. Several years ago, the Supreme Court of the United States limited those rights even further with the Troxel case, which (in a nut shell) said that parents should be the guiding force behind what happens to their children. But what happens when a parent has delegated all or part of their parental duties to a grand-parent?
The Supreme Court of Texas, factoring in the guidance of Troxel, answered this question for us in a recent opinion In the Interest of H.W. (Tex. 2018). In this case, the parents had delegated many of the duties of being a parent to the grand-parents. The children lived with the grandparents over six months and during that time acted like a parent by setting basic rules, helping with medical treatment, and assisting with educational decisions. Both parents argued that the grand-parents did not have the right to sue for custody because both parents had continued to be involved with the children. Neither parent had "just left or abandoned" the children. Each parent saw the children on a regular basis and had each provided support for their children. The Supreme Court of Texas ruled against the parents and found that the grand-parents did have the right to sue for custody of the children. In reaching their decision, the justices noted that if the grand-parent is acting like a parent, then they should have the right to step into the shoes of the parent. The overall moral of the story is that a parent still has an absolute right to raise their child, but if they delegate the duty of parenting, then they may also end up delegating some of their rights as a parent as well.