Accident on Icy Road

Accidents on Icy Texas Roads: Who is Liable?

By | Car Wreck

Accident on Icy RoadWhen we think of extreme weather in Texas, we generally think of severe thunderstorms, hail, wind, and tornados, but, as we have learned, ice and snow storms can be just as dangerous and deadly. There’s also a human factor when snow and ice hit Texas that increases the likelihood of severe injuries and even death for the untrained, inexperienced, and careless driver.

A Federal Highway Administration report states that on average, icy roads cause 151,944 vehicle accidents, 38,770 crash injuries, and 559 crash fatalities a year. These ice-related accidents produce roughly 11% of all weather-related accidents in the country. This is alarming because it shows how dangerous icy roads can be, but it should also alert you to the possibility of personal injury or property damage if you decide to drive in icy conditions.

Icy Roads in the Texas News

The Basics of Negligent Driving in Texas

In the simplest form, negligence involves:

  • A duty to a person (the duty to be a careful, safe driver);
  • A breach of that duty (driving too fast, etc); and
  • That breach causing damages to another person (property damage, injuries, or death caused by a car accident).

Every driver has a basic duty to other drivers to drive safely and not collide with anyone. This requires them to drive as a reasonably prudent person would drive in the given situation. When they breach that duty, or collide with another person or vehicle, they may be liable for the physical or financial damages they caused. But what if the roads were icy and the driver lost control?

Ice is NO Defense to an Accident! | Liability for Accident and Injuries in Winter Conditions

Drivers are expected to take note of weather and road conditions and adjust their driving accordingly. When the temperatures are near or below freezing and precipitation is present, there is a strong possibility of ice on the roads. Because a driver should know of the chance of icy conditions, they should drive as a reasonably prudent person would drive on icy roads.  Blaming the ice will not work if the driver crashes into another car on the road.

Precautionary Measures for Driving in Icy Weather | Driving in Texas in the Winter

When there may be ice on the roads, you should take precautionary measures when driving:

  • Don’t drive unless you have to;
  • Follow your local news or go to drivetexas.org* to get updates on road conditions;
  • Drive below the speed limit;
  • Do not get distracted from the road; and
  • Avoid hills, bridges, and low spots if you can.

If you are hit by a driver who was driving in icy conditions, even if they lost control, they may be liable for negligently driving. You should contact your attorney with the accident report and any other information from the accident to help work through your options.

For more winter weather driving tips, click here.

*drivetexas.org is run by the Texas Department of Transportation who also posts on social media outlets.

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

Final Four DWI Texas

DWI Madness | “The Final Four” Reasons Texans are Stopped for DWI

By | DWI

Final Four DWI TexasMarch Madness is here again. With the Final Four approaching, we built a bracket of our own. In this article, DWI attorney Jason Howard discusses the top four reasons people are stopped or detained for a DWI investigation in Texas. We’ve compiled and power-seeded our list based on the numerous Tarrant County DWI cases we handle every year. Before we get to the “Final Four,” here are some honorable mentions that didn’t quite make the tournament list:

  • Sleeping in a running vehicle
  • Driving the wrong way on a one-way street
  • Rolling through a stop sign
  • Expired registration as seen by police scanner
  • No license plate light

Of course, there are many more reasons that folks are stopped and investigated for DWI, but below are the top four reasons that we see the most.

The Top Four Reasons Drivers Are Stopped for a DWI Investigation in Texas

#4 – Auto Accident

By auto accident, we mean everything from a head-on collision to a run-in with a mailbox. More serious accidents will usually generate the presence of officers on scene within a matter of minutes. Officers are usually looking to rule out the possibility of someone being intoxicated as soon as they arrive on scene. Minor accidents where there are no injuries might elicit a call to 911 (when there would otherwise just be a swap of insurance) if the other party involved suspects a DWI. Easy to see that if you’ve consumed alcohol and are involved in an accident, there is a high probability of a DWI investigation.

#3 – Swerving or Weaving

Please note – there is a difference between the two. Swerving is the more blatant failure to maintain a single lane by driving the vehicle all across the road. Weaving, on the other hand, is usually more subtle and sometimes observed within the lane. Regardless, if it’s late at night and a police officer is behind you and observes either of these driving behaviors, the red and blues are probably going to come on and the driver asked to step out of the vehicle for field sobriety testing.

#2 – Lane Change Problems

The #3 and #4 seeds were probably the top guesses, right? Surprisingly, we see more of numbers 1 and 2 than any other. And they probably weren’t the ones you guessed. I’ve grouped lane change issues because they can vary from the failure to signal a lane change or turn to the failure to make a proper turn at intersection (aka the “wide right” or “wide left” turn.) If you monitor your daily driving (when you’ve consumed no alcohol,) you’ll probably see that you commit many of these types of traffic infractions constantly. You’ll certainly see other people commit them. So, how does that translate to a police officer’s suspicion of drinking and driving? If it’s late at night on a Friday or Saturday, most patrol officers are quick to pull people over for any traffic violation just to check them out and make sure they’re not DWI.

That brings us to our number one reason people are stopped prior to a DWI arrest…

#1 – Speeding

We’re not talking 100mph in a 30mph zone, although we have seen some crazy speeds. No, we’re talking general, everyday speeding; 5 or 10 miles an hour over the speed limit. Nighttime patrol officers love to use their speed detection devices to initiate stops to find DWIs. That’s right! Patrol officers aren’t just looking for obvious impaired driving clues. It’s clear from our experience in handling DWI cases in Tarrant County that most officers are suspicious of anyone out late at night (especially on the weekends.) They know they only need a legal reason to stop someone at any given time. And once they establish their legal reason (even if it’s just speeding,) they then get to proceed with the “where are you coming from, where are you going, have you had anything to drink?” line of questioning. Once they get an admission of “yeah, I had a couple” or smell even the faintest odor of alcohol from the vehicle, they then get the driver out of the vehicle and begin the field sobriety tests. And once they start with the field sobriety tests, the possibility of being arrested goes up astronomically – even if you’re not intoxicated!

If we were to play out the DWI Final Four tournament, Speeding would be your Texas State Champion.

What Should You Do If You Are Suspected of Driving While Intoxicated?

We’ve written on this topic several times, including:
DWI Information Page
May I Legally Refuse a Field Sobriety Test?

If you have been arrested for DWI in Tarrant County after being stopped for one of these four reasons (or any other reason), contact our Tarrant County DWI attorneys for a free case evaluation.

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.

Butt-Dial Statement Texas Templeton

Can the Statements You Make During a Butt-Dial be Used Against You?

By | 5th Amendment

Butt-Dial Statement Texas TempletonThe short answer is Yes. According to both local and federal courts, what you say during a butt-dial phone call can potentially be used against you in court. In Texas, a hearsay exception makes those overheard statements admissible. In the federal system, these calls are viewed as having no reasonable expectation of privacy—since you did not take simple precautions to avoid this kind of situation, you cannot expect someone on the receiving end of the call not to repeat what they heard.

Butt-Dials in Texas: Can Words Overheard During an Unintended Phone Call be Used Against Me?

Under Texas law, statements made during an accidental butt-dial are likely admissible and the speaker likely has no reasonable expectation of privacy in those statements. Typically, repeating something in court that you heard someone else say outside of court is not allowed—it is referred to as hearsay and is considered inadmissible in a court of law. But, as with everything, there are hearsay exceptions that, in certain circumstances, allow someone to testify about something they heard someone else say. So, it should not be too surprising that a recent case found that butt-dials fall into one of the many hearsay exceptions.

Templeton v. State involved a felony assault family violence case in which the victim’s father received a butt-dial call from the victim and overheard defendant Templeton make incriminating statements about the assault, which the father then repeated in court. The Templeton court likened butt-dial statements to the requirements of Texas Rules of Evidence 801(e)(2)(A), commonly known as the admission of a party-opponent. Under this rule, a statement is not considered hearsay if it is a statement made by the person whom it is then offered against. In Templeton’s case, that meant that the statements he made on the butt-dial, which were overheard and then repeated by the victim’s father, could be used against him in court where he was the defendant. These statements do not have to be against the interests of the speaker when they are made in order for them to be admissible, rather, the requirement is that the statements be offered as evidence against the speaker/defendant.

Templeton sets the bar rather low in terms of the work it takes to get these kinds of phone calls in. Essentially, any Texas defendant who accidentally butt-dials someone faces the possibility that anything they say—whether they know someone is listening or not, or whether it is against their interest or not—can be repeated in court so long as it is used as evidence against them. The phrase “be careful what you say” could not ring more true. While a majority of butt-dials result in the overhearing of harmless conversations (your comments about who you saw at Trader Joe’s and the gossip you exchange with your friends are not likely to be subjects of court cases), it is important to know that anything you say on those calls has the potential to be repeated in court.

Butt Dials in the Federal System: Do I Have a Reasonable Expectation of Privacy?

Somewhat unsurprisingly, the sentiment that what someone said during a butt-dial can be used against them extends beyond just Texas and into the Federal system as well. In another recent case, Huff v. Spaw, the Sixth Circuit Appeals Court addressed butt-dials in two contexts: the traditional context in which a call is accidentally made and someone on the other end overhears and perhaps even documents or records the calls, and instances in which a butt-dial is made and the listener records the conversation the caller has with a third-party while in a hotel room.

The judge in Huff determined that in the first instance, there is no privacy claim. Essentially, according to the federal courts, it is the duty of every cell phone owner to make sure that their phones are secure. The court points out the commonality of cell phones and their use. There is no expectation of privacy (and therefore no claim) when someone fails to take simple measures to secure their phone and accidentally shares their activities or statements while using an everyday cell phone. As far as precautions go, the biggest one is to lock your phone. From there, there are a number of apps available to help prevent butt-dialing.

As to the second issue, the judge determined that there was a reasonable expectation of privacy, so that part of the case was remanded to the lower court for reconsideration. The key difference between these two issues was the fact that Bertha Huff, with whom James Huff spoke to in her hotel room. Bertha’s part of the conversation, in the judge’s opinion, was protected by a reasonable expectation of privacy because she did not make the butt-dial—as far as she was concerned, all she was doing was speaking to her husband in the comfort of her hotel room.

What Can You do to Protect Your Privacy?

No matter what type of phone you have, the first line of defense in preventing butt-dials and protecting your privacy is to lock your phone. From there, there are a number of other settings you can change that make butt-dialing less likely.

For iPhone users, adding a passcode (or touch/face I.D.) provides an additional layer of protection for users. If you are prone to butt-dialing, you can take it a step further, allowing your phone to auto-lock quickly (Settings –> Display & Brightness –> Auto-Lock). For iPhone users with models that still have the home button, it might be smart to also disable tap-to-wake (Settings –> Accessibility –> Touch –> Tap to Wake).

There are precautions for Android users too! Begin by setting a passcode. To turn off the tap to wake feature on these phones, go to Settings –> Display –> Lock Screen Display –> Double-Tap to Check Phone. To change the time it takes for these phones to auto-lock, go to Settings –> Security –> gear lock icon next to Screen Lock.

If you really want to go above and beyond, there are some apps available for certain phone users to download. If you take all these precautions and still end up in a situation where what you said on a butt-dial is being used against you, consult an attorney to discuss the best plan of action.