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Brandon Barnett

Christmastime Arrests Texas

Top 5 Reasons for Arrests During the Christmas Holiday Season

By | Criminal Defense

Christmastime Arrests TexasWhen you think about the Christmas season, you probably think about family time, presents, good food, and celebration. We think about those things too, but as criminal defense attorneys, we also think about the reasons that some of our clients get arrested during the holiday season. For this article, we took a look at the last 8 years of holiday season arrests (for clients that we represented) and compiled an (anecdotal) list of the top 5 reasons that folks get arrested during the Christmas/New Year’s season. Our goal is that this list will serve as a warning, so that your holiday season can be filled with the good stuff, rather than jail, bail, and calls to our office. Here goes:

5. Shoplifting

Many retailers slash their prices and offer steep discounts in the weeks leading up to Christmas and even bigger discounts after Christmas, but we have yet to see any retailer offer the “five finger discount” for their merchandise. Regardless, we see plenty of shoplifting cases during the Christmas season, making it our #5 reasons that people get arrested during Christmas. Depending on the regular price value of the item (not the discounted price), shoplifting theft charges can range from misdemeanors to felonies. Learn more about Theft law in Texas here.

4. Package Theft

In a similar vein to shoplifting, our #4 reason for holiday arrests is package theft. Many shoppers choose the convenience of online shopping and have their Christmas purchases delivered right to their front door. Some people see this as an easy target, following behind UPS or FedEx trucks to steal those would-be Christmas gifts from the front porch. However, with the increase in doorbell cameras, it is getting easier to catch the porch pirates in the act. Further, some law enforcement agencies have begun using dummy packages to bait thieves into getting caught. Package theft can range from a misdemeanor to a felony depending on what unknown treasure lay inside the brown box.

3. Air Travleing Trouble (Guns, Drugs, and Intoxication)

Going to visit grandma can require air travel for many families. This means that thousands more people than usual flood through DFW Airport between Thanksgiving and New Year’s. It matters not from where these travelers hail. From Maryland to Oregon to France, if a person is arrested at DFW Airport, their case will be filed in Tarrant County, Texas and they will have to travel back to DFW to attend court. During the holidays, we see a surge in airport arrests when people bring items into the airport that are not allowed or when folks over indulge during a layover. Specifically, we see the following airport arrests:

Even if the state from which a traveler is coming has legalized marijuana and the state to which they are traveling has legalized marijuana, if they are caught possessing marijuana in the airport, they will be arrested and charged. The combination of airport gun arrests, airport drug arrests, and airport public intox arrests make these types of cases our #3 reason for holiday arrests.

2. Assault Family Violence

In the movie Christmas Vacation, Clark Griswold showed an enormous amount of restraint when his extended family pushed him to the limit (especially Cousin Eddie), but not everyone is blessed with such a cool head. Christmas time brings added stressors into the family environment that can sometimes lead to verbal or physical altercations between family members, so much so, that these arrests rank at #2 in our book. Depending on the nature of the assault, a domestic violence arrest can be charged as a misdemeanor or a felony. Learn more about Family Violence under Texas law.

1. Driving While Intoxicated

With all of the Christmas and New Year’s parties and the increase in No Refusal Weekends, it is not hard to guess that DWI arrests are #1 on our list. Driving While Intoxicated in Texas can range from a misdemeanor (if it is a first or second offense) to a felony (if there is a child in the car or if the person arrested has been convicted of DWI twice in the past). Our advice is to plan ahead and do not even take your car to a Christmas party when you plan to drink. Catch a ride from a friend or take an Uber or Lyft. That would be a lot cheaper than hiring an attorney and a lot less hassle too. Learn more about Texas DWI law here.

We Hope You Never Need Us, But We’re Here if Your Do.

We wish you a very merry Christmas and a happy New Year. As always, we hope you never need us to represent you or one of your loved ones for a criminal offense. This is even more true during the Christmas season. Hopefully this list will help you avoid trouble that looms during the holiday season. If you do happen to need us, we are only a phone call away at (817) 993-9249.

Assault as Lesser Included

Assault By Contact NOT an LIO of Assault Bodily Injury

By | Assault

Is the Class C charge of Assault (Offensive Contact) a lesser-included offense of the Class A charge of Assault (Bodily Injury)?

In short, the answer is most likely No.

Assault as Lesser IncludedAn offensive-contact assault not a lesser-included offense of a bodily-injury assault because the offenses have different elements.

The Court of Criminal Appeals, whose opinions are controlling in Texas, held that an offensive-contact assault is not a lesser-included offense (“LIO”) of a bodily-injury assault because what the state was required to prove for one offense differed from what the state had to prove for the other (McKithan v. State, 324 S.W.3d 582, 583, 591 (Tex. Crim. App. 2010)). For a Class A misdemeanor bodily-injury assault, the state must prove that bodily injury (or pain) occurred; the statute does not require the state to prove that the contact was offensive or provocative (Tex. Penal Code § 22.01(a)(1), (a)(3)). An offense is not an LIO if the state must prove different elements for each offense (McKithan, 324 S.W.3d at 583, 591). It is not enough that “proof of the charged [] offense may also” show the other offense; the State must be “required to prove these offenses in establishing the charged offenses” (Id. at 593).

Granted, seven years before McKithan, the Court of Criminal Appeals stated that an offensive-contact assault is an LIO “of (a)(1), because [it is] proved by less than all the facts required to prove (a)(1), specifically, physical injury” (Reed v. State, 117 S.W.3d 260, 267 (Tex. Crim. App. 2003)). However, the Court of Criminal Appeals seemed to move away from this categorical view in McKithan.

Additionally, the appeals court presiding over cases in Tarrant County, the Second Court of Appeals, held that an offensive-contact assault “is not, under the circumstances of this case, a lesser-included offense of assault causing bodily injury” (Welsh v. State, 2009 Tex. App. LEXIS 3592, *4-5 (Tex. App—Fort Worth May 21, 2009)). Other courts echo this sentiment. For example, in Norman v. State, the appeals court held that the trial court did not make a mistake when it refused to instruct the jury on offensive-contact assaults as a LIO of bodily-injury assaults because offensive-contact assaults have a unique element (2019 Tex. App. LEXIS 6690, *16-17 (Tex. App—Amarillo August 1, 2019). And one Houston court stated that “[b]ecause offensive-contact assault is not within the proof necessary to establish bodily-injury assault, it is not a lesser-included offense” (Washington v. State, 2019 Tex. App. LEXIS 5409, *12 (Tex. App—Houston June 27, 2019)).

Thus, offensive-contact assaults are not considered LIOs of assaults causing bodily. An assault under § 22.01(a)(3) has elements unique to it, so one cannot prove an assault under § 22.01(a)(1) by establishing the elements of assault under § 22.01(a)(3).

2023 Scholarship Winners BHW

2023 Scholarship Winners

By | Scholarship

Barnett Howard & Williams PLLC Announces the Recipients of the 2023 Scholarship Awards

2023 Scholarship Winners BHWBHW is thrilled to continue our two scholarships for 2023. In honor of the sacrifices of our military veterans, our scholarships are connected to military service. The first scholarship is a $500 award for a Military Veteran Law Student and the second scholarship is a $500 award for a Military Dependent undergraduate student. Throughout the year, we received several applications from very deserving students. We appreciate all of the students that took the time to apply for the scholarships and wish them all the best in their studies. For those students that were not selected, we invite you to apply again next year as we plan to continue the scholarship offers as an annual award.

2023 Winner – Military Veteran Law Student Scholarship

The winner of the 2023 Military Veteran Law Student Scholarship is:

ANDREW BACON

Andrew Bacon is a Marine Corps veteran who currently attends the University of Denver Sturm College of Law. Congratulations Andrew Bacon. Best wishes as you continue toward your law degree.

2023 Winner – Military Dependent Scholarship

The winner of the 2023 Military Dependent Undergraduate Scholarship is:

FRANCESCA QUINATA

Francesca Quinata is a US Army dependent whose father enlisted from Guam and served for over 20 years. Francesca currently attends the University of Texas and will be the first member of her family to attend college. Congratulations Francesca! Best wishes as you continue in your studies.

More Information About Our Scholarship Opportunities:

For more information about how to apply for these scholarships in future years, please visit the scholarship pages:

Military Veteran Law Student Scholarship

Military Dependent Scholarship

Solicitation Prostitution Sting Texas

Solicitation of Prostitution in Texas

By | Prostitution

Prostitution is Illegal in Texas

Solicitation Prostitution Sting TexasIn Texas, under Chapter 43 of the Penal Code, all forms of prostitution are outlawed. Whether a person is involved in promoting prostitution, engaging in prostitution, or soliciting another to engage in an act of prostitution, it is all illegal and can result in arrest, conviction, and prison time in Texas.

What is Solicitation of Prostitution Under Texas Law?

As defined in Section 43.021(a) of the Texas Penal Code, “A person commits an offense if the person knowingly offers or agrees to pay a fee to another person for the purpose of engaging in sexual conduct with that person or another.” This law does not require a person to actually show up to the agreed location in person, since the offense is committed at the time the offer of money for sex is proffered. However, in most circumstances, the police will not make an arrest unless the “John” actually shows up to the scene.

Prostitution Stings in Texas

Many solicitation of prostitution arrests occur as part of undercover police sting operations. Due to the prevalence and increase of human trafficking in Texas, police agencies have ramped up prostitution sting operations in hopes of decreasing the demand for sex services. Most sting operations are widely publicized afterwards, causing embarrassment, job loss, and relationship stress for those caught in the sting, not to mention the follow-on criminal implications. Our firm has represented people across North Texas that have been arrested in prostitution stings with favorable results.

Solicitation of Prostitution is a State Jail Felony in Texas

On September 1, 2021, the offense of soliciting a prostitute in Texas was enhanced from being a Class B Misdemeanor to a State Jail Felony. This means that, even if it is your first offense, if you “knowingly offer or agree to pay a fee to another person for the purpose of engaging in sexual conduct with that person” you can be convicted of a felony offense and sentenced to a minimum of 6 months and a maximum of 2 years in a State Jail facility. If you have a previous solicitation conviction, then the next offense is a 3rd Degree Felony with a punishment range of 2-10 years in prison.

What to do if you are Arrested for Solicitation of a Prostitute?

If you are arrested for solicitation, once you have bonded out of jail, you should contact an experienced and trusted criminal defense attorney in the jurisdiction where the arrest occurred. Our team of criminal defense lawyers at Barnett Howard & Williams handle around a dozen solicitation cases every year, many of which are the product of Tarrant County Sheriff sting operations. Contact us today for a free consultation at (817) 993-9249. We have offices in Fort Worth and Keller.

EPO Drop Protective Order Texas

Lifting an Emergency Protective Order Issued After a Domestic Violence Arrest

By | Domestic Violence

How To Lift an Emergency Protective Order (EPO) Associated with a Texas Domestic Violence Case?

EPO Drop Protective Order Texas

If you were arrested for Assault (Family Violence), chances are that you also received an Emergency Protective Order prohibiting you from going within 500 yards (or similar distance) from the “victim’s” home or workplace, along with other conditions for a period of 31, 61, or 91 days depending on the nature of the alleged assault. Protective Orders can cause big problems, especially when the two parties live together in the same house and share childcare and other family responsibilities.

Can I Lift The Emergency Protective Order So That I Can Go Home?

Yes, you can (in most cases). We are asked this question on a daily basis. A spouse that was arrested for Domestic Violence has been forced to leave the family home because of the EPO. EPOs, however, do not relieve people of their daily responsibilities to take care of children, go to work, or provide for their families. An EPO can certainly throw a wrench into a family dynamic.

We help families modify protective orders to allow a defendant to return home. We do not typically request that the entire EPO be lifted completely, only amended.

Amending an EPO is Not the Same Thing as Lifting an EPO.

So what’s the big difference in lifting an EPO versus amending an EPO. Most judges will not agree to completely lift an EPO, because, as they see it, there was likely a good reason for the imposition of the EPO in the first place. Additionally, in almost every scenario, the District Attorney’s office will oppose lifting the EPO. However, many judges will agree to amend or modify an EPO and change some of the conditions. Usually, if the victim requests it, a judge will amend the protective order to allow the defendant to return home or resume contact with the complainant and the family. However, the remaining conditions, usually involving not committing family violence or threatening the victim, remain in place for the duration of the protective order.

What are the Steps to Amending a Protective Order in Fort Worth?

First, it is important to know that all jurisdictions handle protective orders differently. For instance, the Fort Worth Municipal Court handles protective orders differently from Tarrant County Criminal Court #5. Some courts prefer to hold a formal hearing and others do not. However, in all cases, we request the following:

  • An Affidavit from the Victim Requesting a Change of the Protective Order: This can be drafted and signed in our office, but the victim must be present and indicate that this is what he/she wants. In our experience, if the complaining witness does not want the EPO changed, then the judge is not going to change it.
  • A Motion to Modify the Protective Order: We draft and file the motion with the court having jurisdiction over the EPO. Texas law requires that we allege 3 things in our motion and that the judge find those 3 things to be true before he/she can modify the EPO:
    • (1) The current EPO is unworkable;
    • (2) Modification of the EPO will not place the victim in a greater risk of harm; and
    • (3) Modification of the EPO will not result in harm to any person protected under the order.
  • An Affidavit of Non-Prosecution: This is not a required document, but we allow victims to sign an ANP in our office if they request it. They may end up having to sign another ANP with the prosecutor, but we like to give them the opportunity.
  • Formal or Informal Hearing with the Presiding Judge: Some courts will require an actual hearing with witnesses before deciding whether to modify an EPO. Other courts simply prefer the verified documentation and an informal meeting with the state and the defense.
  • Filing the Amended Order with the Arresting Agency and Sheriff’s Office: If the judge agrees to amend the protective order, we send a copy of the signed order to the defendant, the complainant, the arresting police agency, and the local sheriff’s office. We also advise our clients to keep a copy of the order near the front door in case a nosy neighbor decides to call the police believing that the EPO is being violated.

I Have an Emergency Protective Order. How Do I Get Started in Amending the Order?

If you have an EPO that was issued against you in response to an allegation of Assault (Family Violence), give us a call today to see if we can assist you in getting the order amended so that you can return home to your family. Every case is different, so we want to speak with you and learn more about your situation. This article will not apply to every case, so call us today at (817) 993-9249. We offer Free Consultations in every case with no obligation.

Scholarship Winners BHW

2022 BHW Scholarship Winners

By | Scholarship

Barnett Howard & Williams PLLC Announces the Recipients of the 2022 Scholarship Awards

BHW Scholarship Winners

This was the 7th year for our law firm to offer scholarships. In honor of the sacrifices of our military veterans, BHW awards 2 scholarships that are connected to military service. The first scholarship is a $500 award for a Military Veteran Law Student and the second scholarship is a $500 award for a Military Dependent undergraduate student. Throughout the year, we received several applications from very deserving students. We appreciate all of the students that took the time to apply for the scholarships and wish them all the best in their studies. For those students that were not selected, we invite you to apply again next year as we plan to continue the scholarship offers as an annual award.

2022 Winner – Military Veteran Law Student Scholarship

The winner of the 2022 Military Veteran Law Student Scholarship is:

CHRISTOPHER KOLKOWSKI

Christopher Kolkowski is an Air Force veteran and C130J pilot. Mr. Kolkowski currently attends University of Arkansas – Little Rock Bowen School of Law. Congratulations CPT Kolkowski. Best wishes as you continue toward your law degree.

2022 Winner – Military Dependent Scholarship

The winner of the 2022 Military Dependent Undergraduate Scholarship is:

MAGGIE EVANS

Maggie Evans is a US Navy dependent whose father served in the US Navy. Ms. Evans currently attends the University of Texas – San Antonio and is pursuing a Masters degree in Clinical Mental Health Counseling, a field that is dear to her heart (and those of the military community). Congratulations Maggie Evans. Best wishes as you continue in your studies.

More Information About Our Scholarship Opportunities:

For more information about how to apply for these scholarships in future years, please visit the scholarship pages:

Military Veteran Law Student Scholarship

Military Dependent Scholarship

Swatting False Report of Crime in Texas

New Texas Offense: Swatting (Making a False Emergency Report)

By | False Report, Legislative Update

Swatting False Report of Crime in TexasTexas legislators enacted several new criminal laws in the 2021 legislative session. Below, we highlight one of them – Swatting. Being from Texas, I initially thought this might have something to do with mosquitoes, but, as it turns out, Swatting is the act of falsely reporting a crime or emergency to law enforcement or emergency personnel. This new offense is a Class A misdemeanor unless the prosecutor can show that you’ve been convicted of this same offense in the past.

 

NEW OFFENSE: Article 42.0601, Texas Penal Code – Swatting (False Report to Induce Emergency Response)
Senate Bill 1056: Summary of the legislation

Text of the new law:
     Sec. 42.0601. FALSE REPORT TO INDUCE EMERGENCY RESPONSE.

(a) A person commits an offense if:

(1) the person makes a report of a criminal offense or an emergency or causes a report of a criminal offense or an
emergency to be made to a peace officer, law enforcement agency, 9-1-1 service as defined by Section 771.001, Health and Safety Code, official or volunteer agency organized to deal with emergencies, or any other governmental employee or contractor who is authorized to receive reports of a criminal offense or emergency;
(2) the person knows that the report is false;
(3) the report causes an emergency response from a law enforcement agency or other emergency responder; and
(4) in making the report or causing the report to be made, the person is reckless with regard to whether the emergency response by a law enforcement agency or other emergency responder may directly result in bodily injury to another person.

PENALTY: A violation of the Swatting statute is a Class A misdemeanor, which carries a range of punishment of 0-365 days in jail and a fine up to $4,000. The offense is enhanced to a State Jail Felony if the actor has been convicted of the same offense twice before. The offense is enhanced to the 3rd Degree Felony if a person is killed or seriously injured as a result of the false emergency call and response.

EFFECTIVE DATE: The Swatting law went into effect on 9/1/21.

SPONSORS: Senate Bill 1056 was a bipartisan bill sponsored by Senator Joan Huffman (R) and Representative Eugene Wu (D). It was approved by both the Senate and the House in unanimous votes.

New Criminal Laws 2021

Texas Legislature Update: New Criminal Laws 2021

By | Legislative Update

New Criminal Laws 2021The 2021 Texas legislative session has now closed and there were several updates to our criminal statutes. Below are some of the more notable changes or additions to Texas criminal laws that took effect on September 1, 2021:

Constitutional Carry – HB 1927

All Texans over the age of 21 are now able to carry a handgun in public without a license or training as long as they are not prohibited from possessing a gun by state or federal law. In addition, the carrying a firearm while intoxicated is now a Class A misdemeanor, punishable by up to a year in jail and a maximum $4,000 fine, and the carrying a firearm in a vehicle by a gang member is now a third-degree felony punishable by two to 10 years in prison and a maximum $10,000 fine. HB 1927 also allows a peace officer to disarm a citizen at any time if they believe it is necessary to protect the individual, the officer, or another person. The officer, however, must return the handgun before leaving the scene if the officer determines the person was not a threat and didn’t commit a violation. Finally, HB 1927 allows for the expungement of records for those previously convicted of Unlawful Carrying a Weapon before September 1, 2021.

Obstructing Emergency Vehicles – HB 9

HB 9 makes it a state jail felony to knowingly block an emergency vehicle with its lights and sirens on or to obstruct access to a hospital or health care facility. This offense is punishable by six months to two years behind bars and a maximum $10,000 fine. Individuals convicted of this offense are required to spend at least 10 days in jail, even if they are sentenced to probation.

False Reporting to Induce Emergency Response – SB 1056

SB 1056 makes it a Class A misdemeanor, punishable by up to a year in jail and a maximum $4,000 fine, to falsely report a crime or an emergency to elicit an emergency response from law enforcement or other emergency responders. The charge becomes a state jail felony, punishable by six months to two years in state jail, if the defendant has been previously convicted twice of the offense and a third-degree felony, punishable by two or ten years in prison, if a person is seriously injured or killed as a result of the emergency response.

Enhancement for Reckless Driving Exhibition – SB 1495

SB 1495 heightens the penalty for obstructing a highway or passageway from a Class B misdemeanor to a Class A misdemeanor, punishable by up to a year in jail and a maximum $4,000 fine, for an individual who engages in a reckless driving exhibition. SB 1495 enhances the penalty to a state jail felony for a person who has been previously convicted of this offense, a person who operates a vehicle while intoxicated, or who causes someone to suffer bodily injury.

Harassment Extension to Social Media Posts – SB 530

SB 530 makes it a Class B misdemeanor, punishable by up to 180 days in jail and a maximum $2,000 fine, to harass another person by publishing repeated electronic communications on a website with the intent to harass, annoy, alarm, torment, or embarrass that person. The penalty, however, can be increased to a Class A misdemeanor, punishable by up to a year in jail and a maximum $4,000 fine, if the actor has been previously convicted of the offense or it if involved a child under age 18 with the intent to cause the child serious bodily injury or to commit suicide.

Silencer Legalization – HB 957

HB 957 removes firearm silencers from the list of weapons that are prohibited in Texas. In addition, firearms suppressors that are manufactured and remain in Texas are not subject to federal law or regulation.
Enhanced Punishment for Offenses against Public Servants – HB 624
HB 624 increases the penalty by one level for people who commit an offense against someone whom they know is a public servant or against a member of the public servant’s household or family. The increased punishments apply to arson, criminal mischief, criminal trespass, breach of computer security, harassment, stalking, or fraudulent use of possession of identifying information.

Enhanced Punishment for Offenses against Public Servants – HB 624

HB 624 increases the penalty by one level for people who commit an offense against someone whom they know is a public servant or against a member of the public servant’s household or family. The increased punishments apply to arson, criminal mischief, criminal trespass, breach of computer security, harassment, stalking, or fraudulent use of possession of identifying information.

Scholarship Winners BHW

2021 BHW Scholarship Winners | Veteran Law Student & Military Dependent

By | Scholarship

Barnett Howard & Williams PLLC Announces the Recipients of the 2021 Scholarship Awards

BHW Scholarship WinnersThis was the 6th year for our law firm to offer scholarships. In honor of the sacrifices of our military veterans, we decided to that the scholarships should be connected to military service. The first scholarship is a $500 award for a Military Veteran Law Student and the second scholarship is a $500 award for a Military Dependent undergraduate student. Throughout the year, we received several applications from very deserving students. We appreciate all of the students that took the time to apply for the scholarships and wish them all the best in their studies. For those students that were not selected, we invite you to apply again next year as we plan to continue the scholarship offers as an annual award.

2021 Winner – Military Veteran Law Student Scholarship

The winner of the 2021 Military Veteran Law Student Scholarship is:

SAMANTHA DOWNEY

Samantha Downey is an Army veteran that served for 6 years as a Combat Medic. Ms. Downey currently attends Notre Dame Law School. Congratulations Samantha Downey. Best wishes as you continue toward your law degree.

2021 Winner – Military Dependent Scholarship

The winner of the 2021 Military Dependent Undergraduate Scholarship is:

JEREMIAH BROOKS

Jeremiah Brooks is a US Marine Corps dependent whose father served in both the Marine Corps and Florida Army National Guard. Mr. Brooks graduated from Canyon Lake High School in 2021 and will be pursuing a career in Cyber Security. Congratulations Jeremiah Brooks. Best wishes as you continue in your studies.

More Information About Our Scholarship Opportunities:

For more information about how to apply for these scholarships in future years, please visit the scholarship pages:

Military Veteran Law Student Scholarship

Military Dependent Scholarship

Texas Expunction Update

Misdemeanor Offenses in Texas Now Eligible for Expunction on an Individual Basis

By | Expunction

Texas Expunction UpdateIn January of this year, the Supreme Court of Texas heard arguments for Ex parte R.P.G.P. in which it declared that an arrest involving multiple offenses is divisible for expungement purposes under Article 55.01 of the Texas Code of Criminal Procedure. Specifically, it answered a question left open by a previous case, finding that misdemeanor offenses are eligible for expunction on an individual basis.

What is an Expunction of Criminal Records ?

When a criminal record is expunged, that means that the record of is destroyed or sealed (for juvenile records). In an expunction order the court orders the various agencies that maintain records to treat a criminal arrest as though it never happened. People generally have their records expunged so that it does not show up on a routine background check, as an expungement removes any record of the arrest or case from public record.

How Do You Go About Getting an Expungement in Texas?

Under Texas law, there are a number of things that make a record eligible for expunction. If you qualify for expunction, there is a process you must go through, beginning with filing what is called a Petition for Expunction with the district court requesting that it grant an Order for Expunction. While it is possible to prepare this on your own, the somewhat complicated process is best handled by an attorney. The prudent course is to consult a lawyer in order to have the best chance at successfully expunging a record. You only get one shot and if your petition is not granted you don’t get to try again, so it is best to get it right from the start.

After completing the petition, it must be filed with the proper court. You must file the petition for expunction in the district court of the county where the arrest occurred. Following the filing, the court schedules a hearing and notifies the record-keeping agencies that you included in your petition. Once everyone has been notified, the court will hold a hearing and allow those notified the chance to object to the expunction.

If you meet all the requirements, the court will grant the expunction and you will need to give an Order for Expunction to the court for the judge’s signature. Important to know is that the court will probably expect you to have this order ready at the hearing for the judge to sign then and there. Once the order is signed, it has to be submitted to the respondent agencies that you listed in the petition. Those records will then be either deleted or returned to the court clerk for destruction.

A Change in Texas Expunction Law: Arrests for Multiple Offense Can Now be Divided for Expungement?

Prior to a recent court decision, Texans could not expunge an arrest unless ALL alleged offenses qualified for expunction under the law. If any of the alleged offenses in the arrest report were not eligible for expunction, then NONE of the offenses were eligible. A partial expunction was not allowed.

However, State v. T.S.N., was a case which a single arrest involved several unrelated offenses and the court held that partial expunction of the arrest record was required and could be achieved through redaction, leaving the portions of the arrest record regarding an unrelated offense not eligible for expunction. While this case left open the question regarding misdemeanor offenses and their eligibility for expunction on an individual basis, it set the stage for R.P.G.P.’s case.

Thanks to Ex Parte R.P.G.P., if you are arrested for multiple offenses, those offenses are considered divisible—you can expunge one even if the other would not qualify. Ex Parte R.P.G.P. is a great illustration of what exactly this means. In that case, R.P.G.P. was arrested for a DWI and a search of the car revealed marijuana, so he was also charged with possession. The DWI charge was dismissed and R.P.G.P. pled no contest to the possession charge, which was ultimately dismissed after serving nine months of deferred adjudication probation. After both charges were dismissed, R.P.G.P. filed for expunction of the DWI arrest, but the State argued that no part of the arrest record could be expunged because the possession charge was ineligible for expunction. However, the court ultimately held that the DWI portion of the record could be expunged, even though the possession portion would remain on the record.

What Does This Change in the Expunction Law Mean for Texans?

What this means going forward for Texans is that if your arrest record reflects multiple misdemeanor offenses, some of which would be eligible for expunction on their own and some that are not, the ones that are eligible can be expunged, leaving the other portions on the record. This is a shift from the all-or-nothing approach previously adopted by the state. Rather than treating each arrest for various offenses as a collective, we can look at each individual charge and proceed from there. Hopefully, this line of thinking will be expanded to cases involving felony arrests as well, but time will tell.