CRIMINAL LAW FAQ’S
- A family member was arrested. How do I get them out of jail?
It will depend on why they are in jail. In most cases, the easiest way is to simply post bond. The two most common ways to post bond are to hire a professional bondsman or pay a cash bond. In almost every county, there are multiple bondsmen with offices near the county jail. They charge ten to twenty percent of the bail amount to bond someone out. If the bail is low enough, you may also be able to post a cash bond. In Harris County, you do that at the bonding window at 49 San Jacinto, Houston, Texas. If you need to know the bond amount, call the Harris County Sheriff’s Office at 713-755-5300. In Fort Bend County, you can call 281-341-4617. Ask for the person’s jail identification number, the amount of their bond, and their initial court date. Similarly, for Montgomery County, call the Sheriff’s Department at 936-760-5871 or 281-353-9791.
- How do I find out if there is a warrant out for my arrest?
Many bail bondsmen will provide this service for free of charge, especially in the larger counties. If you are concerned about a warrant in a rural county and are unable to locate a bail bondsman to assist you, call the Sheriff’s Department for that county.
If you learn that there is a warrant out for your arrest and bond has been set in your case, you may be able to post bond.
- I was told that my family member’s case was a “no bond” case. What does this mean?
There are several reasons why a case might be a no bond case. For example, if someone is on probation, has been sent to jail multiple times, or is charged with a violent crime, they may not be able to bond out until after a judge sets bail. You should retain a criminal defense attorney to ask the judge to set bail.
- If I can afford to post bond, how long will it take for my family member to be released?
As a general rule, it takes 12 to 18 hours. Texas law requires a probable cause hearing within 24 hour for misdemeanors and within 48 hours for felonies, so you should know the bond amount within these time limits.
- What if I cannot afford the bail set in my case?
You should consult with an attorney to ask the court to have your bail reduced. If the court denies the request, your attorney may have to file a Writ of Habeas Corpus arguing that your continued detention violates the U.S. and Texas constitutions.
- When will I get an appointed attorney?
You are only entitled to an appointed attorney after criminal proceedings are initiated. This is true even if you are in police custody. While you have the right to ask to speak to an attorney, the police do not have to appoint you one. Practically speaking, you will not receive an appointed attorney until formal charges are filed. Your right to an appointed attorney is also limited to charges where there is the potential for jail time. For example, if you were arrested for possession of marijuana and also received a citation for a Class C misdemeanor drug paraphernalia charge, you will only be appointed an attorney for the Possession of Marijuana case. In many courts, the judges are reluctant to appoint you an attorney if you could afford to bond out. You can still ask for one but you will need to be able to prove you really cannot afford one.
- Do I really need an attorney? If so, how much will a criminal defense attorney charge me?
Being charged with a crime is a very serious matter for which you do need legal representation. Different attorneys charge different amounts. The cost will depend on a variety of factors including whether it is a misdemeanor or a felony. Be aware, however, that different attorneys have different ways of determining their fees. You should make sure that the figure you are quoted covers all pretrial work. Some criminal defense attorneys will quote you a single figure that covers all work up to trial and then a separate amount if your case actually goes to trial. Others will quote a single figure for the entire case through trial.
- The police want to interview me about a crime they think I committed. Should I speak with them?
Police officers may tell you that it is in your best interests to give a statement and that the District Attorney or judge will look favorably on you for voluntarily giving a statement, or that giving a statement will help exonerate you. This may or may not be true. You should not give such a statement, however, without first visiting with a criminal defense attorney to determine if it is really in your best interests or not.
- The police never read me my rights when I was arrested. Will the case against me be dismissed?
If you were in custody when you were interrogated and were not read your rights, it is possible that any statements you made will be excluded from evidence at trial pursuant to the U.S. and Texas Constitutions as well as Article 38.22 of the Texas Code of Criminal Procedure. Unless your own statements are the only evidence against you; however, the case against you will not be dismissed.
- I was given deferred adjudication but prospective employers still ask me about the criminal case. If I received deferred adjudication, why is this still showing up on a background search?
Deferred adjudication simply means that the court determined that there was sufficient evidence to find you guilty but the court deferred a finding of guilt and placed you on community supervision. If you successfully completed community supervision, you were never found guilty of the offense. Most employers do not understand the differences between probation and deferred adjudication and will still ask you about your arrest and charge. You may be entitled to seek a Petition for Nondisclosure that, if granted, prevents this arrest from appearing on a background search.
- What is the difference between probation and deferred adjudication?
In deferred adjudication cases, the court defers a finding of guilt and places you on community service. If you successfully complete the community service, you are not found guilty of the crime with which you were charged.
In contrast, with probation, you enter a plea of guilty but your sentence is suspended and you are placed on probation.
Deferred adjudication is not an option for all crimes. For example, deferred adjudication is not permitted for driving while intoxicated cases.
- What will happen at my first court appearance?
Your first court appearance will be the arraignment. Technically this is when a court informs you about the charges against you and the possible punishment you face. In most courts, this process is modified. If you have an attorney, he or she will look at your file and usually reset your case for a later date. If you do not have an attorney and are eligible to have one appointed, this is usually when this will occur. If you can afford an attorney but have not hired one yet, you may be able to ask the attorney of the day in that court for a reset.
- What will happen if I am found guilty?
Assuming you have not entered into a plea agreement with the prosecutor assigned to your case, the Penal Code sets out the range of punishments for various offenses. This list is from the least severe punishment to the most severe punishment (but does not include possible enhancements).
Class C misdemeanors: Fines (amounts differ based on offense)
Class B misdemeanors: Up to 180 days in jail and/or $2,000 fine
Class A misdemeanors: Up to 1 Year in jail and/or $4,000 fine
State Jail Felony: Six months to one year in state jail; no credit for “good time” and up to $5,000 fine
3rd Degree Felony: Two years to ten years in prison and up to $10,000 fine
2nd Degree Felony: Two years to twenty years in prison and up to $10,000 fine
1st Degree Felony: Five years to 99 years or life in prison and up to $10,000 fine
Reminder: This list is the basic punishment found in the statutes but does not take into account any enhancements (prior criminal history, violence, or other aggravating factors) nor does it include the possibility of probation or deferred adjudication.
- I have both misdemeanor and felony charges filed against me. Where will my cases be heard and can the same lawyer handle both?
Felony cases are heard in the district courts while misdemeanor cases are heard in the county courts. If you have retained an attorney, he/she can handle the cases in both courts. On the other hand, if you have requested a court-appointed attorney, you may end up with different lawyers in district court and county court. If that happens, you need to make sure that both attorneys are aware of the other charges and who is representing you in that case.
- How does Texas define intoxication?
Under Texas law, intoxication is defined as having lost the normal use of their mental and/or physical faculties or having a blood alcohol concentration (BAC) of .08 or more.
- Should I agree to give a breath or blood specimen?
Not in most cases. Submitting to such a test rarely works to your advantage. There are several reasons why you should consider not giving a specimen, especially with a breath test. Texas uses the Intoxilyzer 5000, to test your breath. That machine will produce false results if it was not calibrated recently or if you have some common medical conditions (for example, acid reflux disease). Also, your blood alcohol concentration will differ depending on how recently you drank and whether your body is still absorbing or eliminating the alcohol.
- What will happen to my driver’s license?
If you were arrested for driving while intoxicated, the officer should have given you the DIC-25 form. This is your temporary license to drive (without restrictions) for the period before DPS suspends your license. DPS will suspend your license for 6 months if you refuse to provide the breath test. Your license will be suspended for 90 days if you fail the breath test. You have 15 days from the date of your arrest to request an ALR hearing on your license suspension. If you do not request an ALR hearing, your driver’s license will be suspended 41 days from the date of your arrest. An ALR hearing also provides your attorney with another opportunity to cross-examine the arresting officer before your criminal trial.
Also, you will have to pay an annual surcharge for three years. The minimum amount of the surcharge is $1,000.00 per year and may be higher depending on whether or not you have any prior offenses.
- What are no-refusal weekends?
Many Texas counties are beginning no-refusal weekends. This does not mean that you still cannot refuse to blow but instead means that a prosecutor and judge will be standing by to sign a warrant authorizing the police to take a blood sample to test your blood alcohol level and/or whether other drugs are in your system.
- Is it true your driver’s license can be suspended if you are arrested for possession of marijuana or some other drug charges?
Your driver’s license can be suspended for six months if you are convicted of any violation of the Texas Controlled Substances Act, including possession of marijuana or any other controlled substance. If you are under the age of 21, your license will be suspended for up to one year.
You should also be aware that drug convictions may also affect your ability to right to obtain student loans, public welfare benefits, public housing, and other benefits.
- What is an occupational driver’s license?
An occupational driver’s license allows you to drive up to four hours a day, or with a judge’s permission, up to twelve hours per day. If you were convicted of driving while intoxicated, the court may order you to have an ignition interlock device installed before it approves an occupational license.