Skip to main content
Oct24
Love2
Logo of the Tarrant County Juvenile Drug Court Program featuring a graduation cap and cannabis leaves, symbolizing support for first-time juvenile drug offenders in Texas.

Help When You Need It Most: Tarrant County Juvenile Drug Court Program

ByJuvenile

Juvenile Drug Court Program logo featuring a graduation cap and cannabis leaves, representing Tarrant County's initiative for first-time juvenile drug offenders.Last week I wrote about things that every parent needs to know about kids and drugs. Today, I want to share with you a valuable resource to use if your child has gotten involved in drugs in Tarrant County. If your teenager has been charged in juvenile court with their first drug offense, you need to ask about the Tarrant County Juvenile Drug Court Program.

The Basics of the Program

The Drug Court Program in Tarrant County was launched in 1999. It was the first of its kind in the State of Texas. It is a voluntary program aimed at first time juvenile drug offenders. According to Tom Zaback, a Tarrant County juvenile probation officer and the supervisor of the program, 80% of the participants in Drug Court graduate the program successfully.

Juveniles in the program, and their parents, are required to commit a lot to Drug Court. This commitment to the program leads to a commitment to change, which contributes significantly to juveniles graduating from Drug Court and kicking their drug problem. While in Drug Court, which lasts for six months, juveniles and their parents will work closely with a probation officer and drug counselors in classes and groups that are tailored to meet the individual needs of each child.

The Process of the Juvenile Drug Court Program

Cases are screened automatically by the probation officers assigned to Drug Court to determine kids who may be appropriate for the program. However, if your child has been charged with a drug offense and you feel this may be a good option for him, you can ask your intake probation officer about being considered for inclusion in Drug Court.

Once a juvenile has been identified for the program, one of the Drug Court probation officers will schedule an intake with that child and his parents. During the intake appointment, the probation officer will explain the requirements of the program, get a social history from the family, and have the juvenile to take a drug test. The juvenile must also submit to a drug assessment during the screening process. This assessment will help to determine the level of that child’s drug problem and the recommended level of treatment needed. At the end of the screening, the probation officer will make a recommendation about whether that child should be allowed into Drug Court.

If a juvenile is recommended for Drug Court, the case is then sent to the Tarrant County District Attorney’s Office Juvenile Unit for prosecution. The prosecutor will review the case and file the charges with the court. The Tarrant County Juvenile Court will then schedule the case for a drug court hearing. At that hearing, the juvenile must stipulate, or admit, to the charges. The judge will enter a judgment withheld, which means that the judge will note that there is sufficient evidence to adjudicate the juvenile delinquent (or find him guilty), but will not, at that time, actually adjudicate the juvenile. The judge will then order him into the Drug Court Program.

Every juvenile in the program must come back to court for a judicial review at the 3-month mark and again at the end of the program. The purpose of this judicial review is for the judge to monitor the child’s progress in Drug Court. At the end of the six-month program, if the child has successfully completed all requirements, the judge will deny the prosecutor’s petition and order the child’s offense record to be sealed immediately. This is a huge benefit to the child because it means that he can honestly say to anyone asking in the future that he has not been charged or adjudicated for a drug offense. Sealing one’s record effectively erases it from existence.

The Requirements of the Tarrant County Juvenile Drug Court Program

As I mentioned above, while in Drug Court, a kid will be required to work with a probation officer and drug counselor to resolve any problems that he is facing with regards to drugs. There are other conditions that a juvenile in the program is required to follow, which are similar to the conditions of traditional probation. Some of these conditions are: no drugs, go to school, be honest, and attend treatment regularly. If a kid violates the terms of his Drug Court agreement, a progress report will be sent to the judge. If it is determined that a juvenile has violated the terms of the program to the extent that he is kicked out, he will be required to return to court for a disposition hearing. At this court hearing, the judge will enter a finding that the juvenile is adjudicated of the drug offense and then proceed to determine the appropriate punishment, or disposition, for the drug violation. This may result in the child being placed on traditional probation, being ordered to attend an in-patient drug treatment program, or in extreme cases, being sentenced to the Texas Juvenile Justice Department. Additionally, a driver’s license suspension will usually be ordered.

The Tarrant County Juvenile Drug Court is a wonderful program designed to help kids who are charged with a first-time drug offense. Its purpose is to help juveniles work through their drug problems while giving them a second chance to keep their juvenile record intact. The program is very successful. It requires a high level of commitment from the juveniles and parents who are in it, but that commitment is rewarded with a true change in the behavior, attitude, and lifestyle of that child. If your child is struggling with drugs, it is worth asking whether the Tarrant County Drug Court Program can help.

Oct12
Love3
Drugs, kids, and juvenile justice in Texas graphic featuring various drug-related items and tools, emphasizing the legal implications for youth.

Drugs, Kids, and Juvenile Justice in Texas

ByJuvenile

What Every Parent Needs to Know About Drug Crimes and the Juvenile Justice Process

Drugs, kids, and juvenile justice in Texas graphic featuring various drug-related items and a central title emphasizing the legal implications for minors.One of the most common way for teenagers to run afoul of the law is with drugs. Between peer pressure, synthetic drugs, and confusion over possession vs. ownership, there are many pitfalls surrounding the topic of drugs for kids. Many times, parents aren’t even aware their child has been exposed to drugs until that child is in trouble. Here are some basic things that every parents needs to know about kids and drugs before it’s too late.

Levels of Drug Offenses and Ranges of Punishment in Texas

In Texas, criminal offenses are divided into two major categories: Felonies and Misdemeanors, with felonies being the more serious. Except for possession of small amounts of marijuana or prescription drugs, all other drug offenses in Texas are felonies. This means that this is a very big deal if your child is arrested for drugs.

In the juvenile system, the punishment for misdemeanors ranges from nothing up to probation until that child’s 18th birthday. This probation can be served out at home. However, if appropriate, the court can order the child to a treatment facility, boys’ ranch, or some other kind of placement as part of the probation.

The punishment options for felonies in the juvenile system, like for misdemeanors, include doing nothing and probation up to a child’s 18th birthday (with or without placement outside of the home). For felonies, however, the court also can commit a child to the Texas Juvenile Justice Department (TJJD), which is the prison system in Texas for kids. A commitment to TJJD can last up until a child’s 19th birthday.

Synthetic Drugs – A Moving Target

Some of the most popular drugs in use today are synthetic or designer drugs. They go by a variety of nicknames including K2, bath salts, and Spice. These particular drugs are especially dangerous for a number of reasons. First, because they are a chemically altered variation of an illegal drug, they are legal in many cases. The legislature is still struggling to write the laws in such a way to criminalize all of these variations. As they make one chemical formula illegal, the chemists making these drugs alter it to escape prosecution. The law is making headway in this field, but it is a slow process. Because of this loophole, many of these synthetic drugs are legally sold in stores and over the internet. This makes it very easy for kids to get their hands on them.

The second reason why these drugs are particularly dangerous is because there is no way for a user to know what exactly is in the dose they are taking due to the rapidly changing chemical alterations that are being made to stay ahead of the law. The K2 your child takes today may be drastically different from the dose he took last week. There is also no way to know what side effects a specific chemical combination will have on a particular person or even the human body generally.

Part of the reason why these drugs are so popular with kids is because it is almost impossible to detect them. Because of the quickly changing chemical makeups of these drugs, it’s difficult to develop a drug test that can detect them all. Additionally, most parents have never heard of these drugs, which makes it easier for kids to get away with using them without their parents realizing what they are doing. This difficulty in detecting these drugs makes it more likely for kids to abuse these particular substances.

Prescription Drugs

Another category of drugs that has risen in popularity with teenagers is prescription drugs. These are used frequently by kids because they are easy to get their hands on. All they have to do is to go to the medicine cabinet at home and help themselves to whatever drugs are on the shelf. It doesn’t matter what the prescription is for or who it belongs to, it can be abused by kids. Teens have been known to sell and/or use pills prescribed for everything from ADD to depression to high blood pressure. When parents are unaware of the potential for kids to take these medicines, they are unlikely to secure them in order to keep them away from their teenagers. There have been several cases recently in Tarrant County where kids have been arrested at school for illegally selling or possessing a prescription drug that they took from their parents.

Ownership vs. Possession

When it comes to the drug laws, many kids are confused about the difference between ownership vs. possession. The law makes it illegal to possess drugs, regardless of who owns them. In fact, because drugs are considered “contraband,” the law doesn’t consider anyone to “own” them. Many kids, when busted for possessing drugs, will say, “But it’s not mine. I was just holding it for my friend.” They don’t understand that this means they are breaking the law, not their friend. Possession is defined as having care, custody, and control of something. This means that if you have the drugs in your pocket, you are in possession of them whether you “own” them or not.

Many “good kids” who wouldn’t dream of committing a crime will get caught holding drugs for their friends. Because they don’t understand that, if caught, they will be the guilty party and not their friend, they agree to hold onto the drugs for their buddy. It’s important that parents talk to their kids and explain this aspect of the law and the effect it can have.

Common Situations Where Kids Encounter Drugs

As I said at the beginning, drugs are a common reason why kids find themselves in the juvenile justice system and in alternative school for a period of time. It is a slippery slope that many teenagers find themselves on before they even realize what has happened. Below are some of the most common places for kids to encounter drugs.

1. School
Our kids spend a good deal of their time at school. By the time a kid gets into middle school and high school, a big chunk of their social circle is centered around school. School is also the place where they are likely to encounter a wide variety of different people. So, it’s no wonder, that it is also the place where many kids first encounter drugs. Not only do the school administrators and teachers have to be on the alert for drugs in school, but parents also need to be aware and be proactive in preparing kids to walk away when they encounter drug activity in the school environment.

2. Friends
When kids are in their preteen and teenage years, peer pressure is a very powerful force. Many kids are first exposed to drugs by their friends. Therefore, it is important, as parents, to know our kids’ friends and to be around them enough to pick up on whether these friends have a problem with drugs before our kids follow the same path. It’s also important for parents to consistently work on having that open communication with their kids so that, when the time comes, your kids can feel comfortable coming to talk to you about drugs and friends. Kids also need to know that if they are ever asked to hold onto to drugs for their friends, that they must say no, even if it means losing a friend over it.

3. Cars
Cars present a tricky scenario for kids when it comes to drugs. If your teen gets into the car with someone who has drugs, it is very possible that your child will get charged with the drugs if they are pulled over by police. When police and prosecutors are looking at who within a car to charge with possession of the drugs, they will many times look to the person who was sitting the closest to the drugs. If someone else in the car drops their stash of drugs near your child, then it may appear that your child was the one in possession.

This is a situation where parents need to talk to their children about how easy it is for them to be in a car with others and be held responsible for the actions of those other people. Kids need to be very careful about who they get into a car with. Parents need to prepare their kids to make the right decision when confronted with whether to get in a car with someone or not.

Pointing a Fake or Toy Gun: Deadly Weapon Charges in Texas

While it is common for otherwise “good kids” to get in trouble with the law when it comes to drugs, it is not inevitable. If parents take the time to educate themselves and their kids about the pitfalls that drugs can create, they can help their teenagers to avoid getting involved in the juvenile justice system.

About the Author

Christy Dunn is a writer and attorney licensed to practice in Texas. She was a prosecutor for 15 years. The last five years of her prosecutorial career was spent in the Juvenile Division of the Tarrant County District Attorney’s Office. She has tried over 20 juvenile cases in Texas and multiple certification hearings. She was part of the multidisciplinary team that created a Project SAFeR.

Oct10
Love3
Police officers beside a red car with a question about drug possession and driver responsibility.

Do Drugs Found in a Car Automatically Belong to the Driver?

ByDrug Crimes

Between the Driver and Two Passengers, who is in Possession of the Drugs Found in the Middle Compartment in Plain View?

Illustration of two police officers standing beside a red car with text overlay questioning if drugs found in a car automatically belong to the driver, relevant to legal discussions on possession and drug laws.The Court of Criminal Appeals recently handed down an opinion dealing with legal sufficiency of evidence in the context of possession of a controlled substance when it was not found in the exclusive possession of the defendant. The issue facing the Court was whether Appellant Tate intentionally or knowingly possessed methamphetamine by exercising “control, management or care” of the methamphetamine and he knew it was methamphetamine. Tex. Penal Code §1.07(a)(39). The Court found that a rational jury could infer that the owner and driver of a vehicle possessed the controlled substance found in the vehicle in plain view even when there were two other passengers.

Tate v. State (Tex. Crim. App. 2016)

The Facts—Trial Court Found Sufficient Evidence

Tate was pulled over by Detective Beckham due to his outstanding warrants. When pulled over Tate had two passengers. Tate explained that he owned the vehicle but did not have any proof of ownership. Tate was arrested after officers confirmed his outstanding warrants. The police searched Tate, the two passengers, and their belongings, but did not find any weapons or contraband. During Officer Beckham’s inventory search of the vehicle, he found a syringe loaded with a substance later identified as .24 grams of methamphetamine. He found the syringe in “plain view” in a compartment underneath the air conditioner and heating controls.

Tate, the owner of the vehicle, was charged with possession of a controlled substance. At trial, Officer Beckham described the compartment as “directly to the right” of Tate, accessible to Tate and the front-seat passenger but not the backseat passenger. He also testified that even though he couldn’t tell exactly what the front-seat passenger was doing, he observed her moving a lot but never towards the compartment. Tate argued that one of the passengers put the syringe there when Tate was talking to Beckham at the rear of the vehicle. The trial court found Tate guilty, relying on Tate’s “self-purported” ownership of the vehicle and his proximity to the syringe.

The Court of Appeals Reversed the Trial Court’s Decision

The Court of Appeals held that there was “insufficient evidence to prove that Tate had intentionally and knowingly possessed methamphetamine.” The court rejected the proximity argument made by the trial court for two reasons:

  1. There was insufficient evidence to show the syringe was in the car before Tate got out.
  2. Officer Beckham observed the front-seat passenger moving a lot but couldn’t tell exactly what she was doing.

Additionally, the court said that since Tate’s ownership could not be proven it was insufficient evidence to prove possession.

The Court of Criminal Appeals Reverses the Court of Appeals—Holding Defendant’s Ownership and Control of Vehicle Where Controlled Substance was Found in Plain View and Within Defendant’s Reach is Sufficient Evidence to Convict for Possession of a Controlled Substance

The CCA held that a rational jury, with these facts, could reasonably infer that the syringe was in the car the entire time. In coming to that decision the Court relied on the fact that the jury believed Beckham’s testimony that he never saw her reach for the compartment, that the back-seat passenger could not reach it, Tate said he owned the vehicle, and that the syringe was found in plain view. Therefore, a rational jury could infer that Tate would be aware of items in his vehicle in plain view, thus find he intentionally or knowingly possessed the methamphetamine in the syringe.

In making this decision the Court relied on the Jackson standard: “Based on the combined and cumulative force of the evidence and any reasonable inferences therefrom, was a jury rationally justified in finding guilt beyond a reasonable doubt?” Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). The Court found that the court of appeals incorrectly applied this standard. The Court pointed to a few links that the jury could reasonably rely on to find Tate guilty, which include:

  1. the contraband was found in the vehicle that Tate owned and was driving;
  2. the contraband was in plain view and conveniently accessible to Tate; and
  3. the jury could reasonably believe Beckham’s testimony that the front-seat passenger did not reach over to the compartment and that the back-seat passenger could not reach the compartment.

Thus, when the standard is applied here a rational jury could find the evidence sufficient to find Tate intentionally or knowingly possessed the methamphetamine beyond a reasonable doubt.

Decision of the Criminal Court of Appeals—Evidence is Legally Sufficient Where a Rational Jury Could Infer Guild Beyond a Reasonable Doubt

The CCA found that the evidence at trial was sufficient for the jury to reasonably find Tate guilty beyond a reasonable doubt and that the court of appeals overstepped its bounds in assessing the legal-sufficiency of the evidence.

Oct07
Love1
Historic mansion with green roof and white facade, surrounded by trees and flowers, overlaid with text stating "Buying Prosecution" and details about the Hill v. State (2016) case regarding prosecutorial influence.

Dallas Oil Family’s Dismissal for Vindictive Prosecution Upheld on Appeal

ByCriminal Defense, White Collar

How Far Does the Trial Courts Discretion Go in Determining Whether to Hold a Pretrial Evidentiary Hearing?

Hill Mansion with text overlay about prosecution case, related to Dallas oil family and legal implications in Hill v. State (2016).On September 21st the Texas Court of Criminal Appeals issued a decision on the oil tycoon heir Albert Hill III’s criminal appeal. The question the Court faced was whether it was in the trial court’s discretion to conduct a pretrial evidentiary hearing on Hill’s motions to quash and dismiss based on prosecutorial vindictiveness. The Court determined that it was within the trial court’s discretion to conduct such a pretrial evidentiary hearing and that discretion was not limited by the defendant meeting “a certain threshold evidentiary requirement.”

Court Opinion: State of Texas v. Albert Hill (Tex. Crim. App. 2016)

The Facts | Trial Court Finds Dallas DA’s Actions Improper

Appellant Hill is the great-grandson of legendary Dallas oil billionaire H.L. Hunt and the events surrounding the indictment dealt with a multi-million dollar trust litigation between Hill and his father. Hill and his wife Erin were indicted in 2011 for making false and misleading statements in order to obtain a $500,000 mortgage from Omni American Bank. The indictment came shortly after Hill won in the trust litigation against his father. Prior to the indictment (but after Albert Hill’s victory in the trust litigation) Hill’s father’s attorney, Michael Lynn delivered a memo to the Dallas County District Attorney’s Office which alleged various offenses committed by Hill and his wife. Hill challenged these charges by filing a motion to quash the indictment and a motion to dismiss. Hill argued that the District Attorney, Craig Watkins, was under the influence of his disgruntled father as well as Lisa Blue Baron, one of Hill’s attorneys in the trust litigation case that had just filed a lawsuit against Hill seeking several million dollars in legal fees.

Some items of interest that the court noted were:

  • Lisa Blue Baron exchanged several phone calls and text messages with Watkins leading up to the indictment;
  • Michael Lynn’s law partner donated $48,500 to Watkins’ campaign prior to the indictment;
  • Lisa Blue Baron made a $100,000 donation to SMU LAW in Watkins’ honor after the indictment;
  • Lisa Blue Baron also held a fundraising event for Watkins’ campaign at her house and made a $5,000 donation to the campaign.

The trial court held an evidentiary hearing on Hill’s motions and granted both the motion to quash and the motion to dismiss.

The Court of Appeals Reversed the Trial Court’s Decision

The Fifth Court of Appeals reversed the trial court’s dismissals holding that the trial court “erred in conducting a hearing on Hill’s motion to dismiss.” The State argued that the trial court should not have held a pretrial evidentiary hearing because Hill failed to prove, with evidence, a prima facie case of prosecutorial misconduct and vindictiveness. The Court of Appeals stated that before a pretrial evidentiary can be held for a defendant claiming a violation of his constitutional rights, the defendant must “present facts sufficient to create a reasonable doubt about the constitutionality of his prosecution.” The Court of Appeals found that Hill did not sufficiently meet this standard.

The Court of Criminal Appeals Disagrees with the Court of Appeals, holds that Trial Courts Have Sound Discretion to Conduct a Pretrial Evidentiary Hearing

1. Article 28.01 – The CCA points to Article 28.01 in determining that the trial court had the discretion to hold a pretrial hearing on Hill’s motions to quash and suppress. Article 28.01 §1 provides that a trial court “may set any criminal case for a pre-trial hearing” and that some of things that the pre-trial hearing shall be to determine is the “pleadings of the defendant,’ ‘exceptions to the form or substance of the indictment,’ or discovery.’” Article 28.01 §1(1), (2), (4), (8). Additionally, while Article 28.01 does not expressly provide for an evidentiary hearing on a motion to dismiss like it does for a motion to suppress, the Court determined that it would be a misapplication of the rules of statutory construction to decide that oral testimony cannot be used in a pretrial hearing to resolve any other issue raised.

2. Case Law – The Court supported its Article 28.01 decision with the Court’s decision in Neal v. State which held that a defendant is required to “preserve a complaint of vindictive prosecution by filing a pretrial motion to quash and dismiss.” 150 S.W.3d 169. With that decision in mind the Court said “it would make no sense to limit the trial court’s discretion to hold an evidentiary hearing on such motion.”

The State pointed to federal case law that provided defendant must make a prima facie case that raised a reasonable doubt. However, these cases dealt with the issue of whether the trial court erred by denying a pretrial hearing. Thus, the Court stated that this case law is not on point in Hill’s case and thus are not controlling on this issue, and do not persuade the Court to hold otherwise.

Decision of the Criminal Court of Appeals | The Trial Court’s Discretion is Not Limited

The CCA determined that Article 28.01 has no limiting factor on the judge’s discretion to hold a pretrial evidentiary hearing based on any threshold evidentiary standard. Accordingly, the trial court did not err in conducting the pretrial evidentiary hearing in Hill’s case but instead acted within its bounds of sound discretion.

Oct05
Love5
Clown holding finger to lips with text "DO NOT SHOOT THE CLOWNS!" emphasizing legal rights related to public clown appearances and self-defense issues.

Hold Your Fire…Don’t Shoot the Clowns! Yet.

BySelf-Defense

Evil clown holding a finger to lips with the text "DO NOT SHOOT THE CLOWNS!" and "YOUR RIGHTS IN THE FACE OF A NEW (AND NOT-SO-FUNNY) THREAT," relevant to legal discussions on public clown costumes and self-defense laws.Recently, a friend asked me if it was legal for individuals to dress as clowns and scare the public. He also wanted to know what would happen if he were frightened by one of these clowns and shot the clown. While not asking the latter in complete seriousness, these questions do bring up potential criminal law issues.

Is it Legal to Dress as a Clown in Public?

There’s no state law that we’re aware of that makes dressing up like a clown in public per se illegal.

The only potential laws that may be applicable to these situations would be individual city ordinances. A search of city codes in a handful of Texas towns around the Metroplex reveals no ordinance specifically prohibiting dressing like a clown in public. The only codes we are able to find related to costumes primarily had to do with a prohibition on costumes which fail to cover private areas in regards to sexually oriented businesses.

While dressing like a clown doesn’t appear to be per se prohibited, there is certainly the risk of breaking other laws while dressed as a clown. In addition, dressing like a clown in public and creating unnecessary alarm or panic could be deemed as disorderly conduct.

Texas Penal Code, Chapter 42 lays out a list of behaviors that could constitute up to a Class B misdemeanor. Class B misdemeanors can carry a penalty of up to 6 months in jail and up to a $2,000 fine. Sec. 42.01 (a)(2) states that a person commits an offense [of disorderly conduct] if he intentionally or knowingly makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace. An offense of this nature is a Class C misdemeanor and carries the possibility of up to a $500.00 fine.

Can I use Deadly Force Against the Clown?

Let’s start with the simple answer of “NO”. While individuals may be suffering from coulrophobia (the fear of clowns), this condition does not give you a right to use deadly force – or any force for that matter – against an individual simply because he or she is standing in public dressed as a clown.

The more complex answer of “maybe” would have to do with the use of force for self-defense purposes. Section 9.31 of the Texas Penal Code provides for a justifiable defense at the time of trial for self-defense, so long as the type of force used is reasonable and necessary in the moment to protect against an attacker. Under this law, the actor must reasonably believe that the force is reasonably necessary to protect against the other’s use or attempted use of unlawful force. Simply observing a clown, with no weapon or threat to use a weapon, provides no grounds to use force – much less deadly force – against that clown.

In addition, the Penal Code does establish that force may be used to protect one’s own property. A person in “lawful possession” of real property or personal property is justified in using force if “the actor reasonably believes the force is reasonably necessary to prevent or terminate the other’s trespass on the land…” However, the use of deadly force to protect one’s own property is limited. “A person is justified in using deadly force against another to protect land or property if (1) he is justified under TPC §9.41; (2) he reasonably believes using the force is immediately necessary to prevent commission of arson, burglary, or robbery; and, (3) the actor reasonably believes that the land or property cannot be protected or recovered by any other means [such as by calling law enforcement]. Tex. Penal Code Section 9.42.

Using force for self-defense purposes is a serious response to dangerous and threatening situations – but certainly not an appropriate response to being “creeped” out.

Bottom Line | Do Not Shoot the Clown (Yet)

Dressing up as a clown and causing fear amongst the public is a stupid (and perhaps even illegal) idea. Our attorneys would advise you strongly against it. You certainly place yourself in the position of having your behavior scrutinized by law enforcement for any potential illegal activity. And, if you’re simply afraid of clowns, do your defense attorney a favor and please do not shoot them.  BUT…If the clown lays a hand on you or chases you through a park, all bets are off. You may use force against the clown to avoid an assault.

Oct04
Love2
Juvenile and adult figures illustrating the juvenile justice certification process in Texas, with text "JUVENILE or ADULT? JUVENILE JUSTICE CERTIFICATION IN TEXAS."

Juvenile or Adult? The Juvenile Certification Process in Texas

ByJuvenile

The Nuts and Bolts of the Juvenile Certification Process

Juvenile or adult? Illustration depicting three characters representing different ages with the text "Juvenile or Adult? Juvenile Justice Certification in Texas," relevant to juvenile certification processes in Texas.The juvenile court has exclusive jurisdiction over offenses committed by juveniles (children ages 10-17)  in Texas. The only exception to this, according to Texas Family Code Section 54.02, is when the court waives its jurisdiction and transfers a juvenile to an adult district court to face the adult criminal justice process. This is what is called certifying a juvenile as an adult. The Family Code lays out a process for when and how a juvenile may be certified.

The Process of Certification

Family Code Section 54.02 actually lays out two different processes for certification. One process is for cases in which the charged person is still a juvenile. The other one is for cold cases where the person accused was a juvenile at the time of the offense, but became an adult prior to the time the case went to court. This latter process is commonly referred to as a post-18 certification.

In all cases, per Section 54.02(a), the juvenile court may certify someone as an adult ONLY if the following factors are met:

  1. the alleged offense is a felony
  2. the child was 14 or older at the time of the offense if the alleged offense was a first degree felony, a capital felony, or an aggravated controlled substance felony or the child was 15 or older for any other felony
  3. no adjudication hearing has taken place for that offense, and
  4. during a hearing, the court finds that there is probable cause to believe the juvenile committed the offense.

Additionally, in all cases, the court must order, prior to the hearing, a complete diagnostic study to be done on the juvenile, which is to include information about his circumstances and the circumstances of the crime. This study must then be given to the court, prosecutor, and defense attorney prior to the hearing. This is required by Section 54.02(d) and (e).

The “Normal” Certification Process in Texas

If the person who is the subject of a certification proceeding is under the age of 18 at the time of court, under Section 54.02(a), the court must determine whether the welfare of the community requires the child to be certified as an adult due to either the seriousness of the offense or the background of the child. In making this determination, the court must take into account, along with other things, whether the crime was committed against a person or property, the sophistication and maturity of the child, the record and previous history of the child, the potential of adequate protection of the public, and the likelihood of appropriate rehabilitation of the child using the resources and services available in the juvenile system. These factors are laid out in Section 54.02(f).

Post-18 Certification in Texas

For cold cases, in which a person was a juvenile at the time of the offense, but is now an adult, the process is a little bit different. For these cases, the certification process is the only avenue available for prosecution. According to Section 54.02(j), in addition to the factors listed above regarding age and probable cause, which must be met in every certification case, the court must also find that either:

  • because of a reason beyond the control of the State, it was not practicable to proceed prior to the person’s 18th birthday or
  • after due diligence on the part of the State, it was not practicable to proceed with the case prior to the person’s 18th birthday because the State did not have probable cause and new evidence has been discovered since the 18th birthday.

Who Decides on Certification?

Initially, the District Attorney’s Office makes the decision whether to seek certification. If they decide to seek certification, then a hearing will be held. At the hearing, the juvenile court judge will be the person to determine whether the juvenile will be certified. There is no jury at a certification hearing. In Tarrant County, the juvenile prosecutor who is assigned to the case is the person who decides whether to pursue certification.

Across the state of Texas, certifications make up only a small percentage of juvenile cases. Most cases are kept in the juvenile system. In Tarrant County, there are only a handful of certification hearings held each year. Most of those are post-18 certifications on sex cases where the victim did not outcry about the offense until after the juvenile charged was 18 or older. On average, there are less than 5 certifications of juveniles who are still under the age of 18 per year in Tarrant County.

Possible Defenses to Juvenile Certification

Because the State must only prove by probable cause that the charged juvenile committed the offense, it is unlikely that defenses to the offense itself will be successful at a certification hearing. However, there are some other areas where a defense attorney can attack. In cases of a post-18 certification, the best possible avenues for the defense would be to attack the age of the juvenile at the time of the offense or the due diligence of law enforcement to investigate the case.

For normal certifications, a defense attorney should look to areas such as the maturity of the juvenile, and the likelihood of rehabilitation of the juvenile through the resources available in the juvenile system. A defense attorney should also highlight the positive aspects of the juvenile’s background, including responsible adults who could provide appropriate support and supervision for that child, positive educational and extra-curricular activities, and any treatment or mentoring that the child has had in the past which showed positive results. An attorney should also be pointing out things such as a low IQ, any mental health diagnosis, a lack of treatment for those problems, and how available resources within the juvenile system would be the best approach to address those things.

Legal Ramifications of Certification

If the juvenile court waives its jurisdiction and certifies a juvenile as an adult, the case will be transferred to adult court. From there, it will be treated as an adult case for all intents and purposes. The prosecutors must present the case to a grand jury for indictment. Adult punishment ranges will apply.
If, however, the juvenile court denies certification on an accused person who is still a juvenile, the case can still be pursued by the prosecution in juvenile court. In those post-18 certifications, if the court denies the certification, then the case is dead because the court will no longer, at that point, have jurisdiction over the person accused due to their age.

Certifying a juvenile as an adult is something that does not happen a lot in the State of Texas. It is even more rare in Tarrant County. However, when it does happen, there is a specific procedure laid out in Family Code Section 54.02 which must be followed in order for the certification to happen. The prosecutor gets to decide whether to seek certification, but it is up to the juvenile court judge to determine whether it will be granted. If granted, from that point on, the case and the juvenile will be treated as an adult and will be prosecuted in the adult system.

About the Author

Christy Dunn is a writer and attorney licensed to practice in Texas. She was a prosecutor for 15 years. The last five years of her prosecutorial career was spent in the Juvenile Division of the Tarrant County District Attorney’s Office. She has tried over 20 juvenile cases in Texas and multiple certification hearings. She was part of the multidisciplinary team that created a Project SAFeR.

Sep30
Love3
Stop and Frisk sign illustrating legal concepts related to reasonable suspicion and law enforcement actions, relevant to Furr v. State case discussion.

Reasonable Suspicion to Stop and Frisk Upheld | Furr v. State (2016)

ByReasonable Suspicion, Search & Seizure

Texas Court of Criminal Appeals Upholds a Stop and Frisk Case

Stop and Frisk sign highlighting legal implications of reasonable suspicion in criminal defense context.Furr v. State (Tex. Crim. App. 2016)

On September 21st the Criminal Court of Appeals decided Furr v. State. In Furr, the Court held that an anonymous tip was sufficiently corroborated to establish reasonable suspicion to stop and frisk Appellant Furr. To support the stop and frisk, the court noted that Appellant:

  • watched the officer as he drove by,
  • repeatedly looked at the officer as he walked away,
  • was nervous, anxious and sort of out of it,
  • appeared under the influence of drugs, and
  • did not initially respond as to whether he was armed.

Further, the Court stated it is not per se objectively reasonable for a police officer to execute a pat down of a suspect for weapons simply because they are accused of drug possession.

The Facts of Furr v. State

Corpus Christi Police Department received an anonymous tip that two men were doing drugs on a particular street corner, one dressed in all black and the other in a black shirt carrying a brown backpack. In response, an officer drove past the street corner. He observed two men that fit the description from the tip and noticed in his rearview mirror that the men were watching him as he drove by. The officer then approached the two men but one of the men, Furr, walked away into the nearby shelter, repeatedly looking over his shoulder at the officer. The officer described Furr’s actions as furtive, “like he was trying to get away.”

When another officer arrived, the officers made contact with Furr. Furr was described as nervous, anxious, evasive, and was sweating excessively. Furr did not respond when the officers initially asked if he had any weapons on him. Officers said he appeared “kind of out of it” and “like he was under the influence of a drug. As a result, for safety reasons, officers frisked Furr for weapons and found a glass crack pipe in Furr’s front pocket. When removing the pipe, the officer also found two syringes, and after arrest, two small balloons of heroin.

Furr was charged with possession of a controlled substance. He pled guilty, reserving his right to appeal after his motion to suppress was denied. Furr argued on Appeal that officers did not have reasonable suspicion to stop and frisk him and that the trial court erred by not granting the Motion to Suppress the search.

The Court of Appeals Affirmed the Trial Courts Decision

The court of appeals held that Furr’s nervousness coupled with the observation that he seemed to be under the influence of a drug sufficiently corroborated the tip to support the investigative detention and that Furr’s failure to initially respond about being armed coupled with the other circumstances justified the frisk.

The Criminal Court of Appeals Concluded that there Was Reasonable Suspicion to Detain and Frisk Furr.

1. The Analysis of the Detention

In order to detain a person, the police officer must have reasonable suspicion based on “specific articulable facts, when combined with rational inferences from those facts, would lead him to reasonably conclude that the person detained is, has been, or soon will be engaged in criminal activity.” Wade v. State, 422 S.W.3d 661, 668 (Tex. Crim. App. 2013). Anything that happens or that is observed before the detention will be considered in determining whether the officer indeed had reasonable suspicion to detain Furr.

Furr argued that the anonymous tip alone was not enough.  The Court, however, explains that if there had only been the anonymous tip, it would not have established reasonable suspicion, but here there was more. The Court identifies several independent observations:

  • Furr and the other man were at the specified location and matched the informant’s description.
  • The area was a “high drug, high crime” area.
  • Furr and the other man watched the officer as he drove past
  • When the officer approached the two, Furr walked away “furtively.”
  • When the officers came upon Furr in the shelter he was sweaty, nervous, anxious, and appeared out of it as if he was under the influence of a drug.

Thus, the reasonable suspicion here was not solely based on the informant’s tip, but instead that tip was corroborated by independent observations made by the police officers. Looking at the totality of these circumstances, the Court held that the officers had reasonable suspicion to stop Furr and investigate the information from the anonymous tip that Furr and the other man were using and possessing a drug.

2. The Terry Frisk

The Court rejected the State’s request to adopt a rule that it is, “per se, objectively reasonable for the police to pat down a suspect for weapons if they are accused of possessing drugs,” because reasonable suspicion to frisk a suspect cannot be established by accusations of drug possession alone.

The Court further rejects the State’s argument that the officer was objectively justified in patting Furr down for weapons because this was outside of a homeless shelter for two reasons: 1) Nothing in the record shows that the shelter was a homeless shelter; and 2) Even if it was a homeless shelter, the Court does not see a correlation between being armed and dangerous and being at a homeless shelter.

Even so, the Court ultimately agrees with the court of appeals that reasonable suspicion was established here because the anonymous tip was corroborated by all of the circumstances surrounding the officers’ interactions with Furr. Specifically, the Court noted the tip, personal observations by the officers and the high drug, high crime area would warrant a belief that the safety of officers and others was in danger.

DISSENT – Stop and Frisk Should Have Been Held Unlawful

Judge Meyers dissented from the majority and opined that the stop and frisk of Furr was unlawful and that the motion to suppress should have been granted. Judge Meyers concluded that neither Furr’s action of looking over his shoulder or the anonymous tip, alone or combined, were sufficient to establish reasonable suspicion. Thus, there was no need to analyze the legality of the frisk. Judge Meyers believes that the majority made its decision “not based on law but on the feeling that Furr should not get relief.”

Sep28
Love6
Books open on a table with a library background, overlay text asking, "What offenses require sex offender registration in Texas?"

Which Crimes Require Sex Offender Registration in Texas?

BySex Crimes

Books in a library with open pages, featuring text overlay: "What offenses require sex offender registration in Texas?"It’s no secret that there are certain offenses that require individuals to register themselves on the sex offender registry. However, what are those offenses? How long is a person required to register?

What Offenses Require Sex Offender Registration in Texas?

In Texas there are over 20 offenses that require registration as a sex offender. Additionally, registration could be required as a condition of parole, release to mandatory supervision, or community supervision. Further, even if a person was convicted for a crime outside of Texas you might be required to register as a sex offender if the elements of that offense are substantially similar to an offense under Texas law that requires registration.

Under the Texas Code of Criminal Procedure these are called “reportable convictions or adjudications.” Article 62.001(5) of the Code defines these to be a conviction or adjudication, which includes deferred adjudication, that is based on various offenses outlined in the section.

How Long Does a Person’s Duty to Register as a Sex Offender Last?

Many of the offenses requiring registration as a sex offender have a lifetime registration requirement but some have a “10-year” requirement. The 10-year requirement depends not only on the alleged offense but also on how the case is disposed. If the duty was based on an adjudication of delinquent conduct (defined by Tex. Fam. Code §51.03) then the duty to register ends on the 10th anniversary of the date on which the disposition was made or the date of completion of the terms of the disposition, whichever is later. If the duty is based on a conviction or deferred adjudication, then the duty to register ends on the 10th anniversary of the date the person is released from a penal institution, or is discharged from community supervision, or the court dismisses the criminal proceedings, whichever date is later.

Additionally, there is a 10-year requirement for persons, who would otherwise be subject to lifetime registration requirements, who were a juvenile at the time and their case was transferred to a criminal district court pursuant to Section 54.02 of the Texas Family Code. Tex. Code Crim. Proc. Art. 62.101(b). Under this requirement the duty to register ends 10th anniversary of the date the person is released from a penal institution, completed probation, or the date the court dismisses the charges against them, whichever date is later. Id.

Below is a chart that lists offenses requiring registration and the applicable time period the law requires a person to register.

Sex Offender Registration Requirements in Texas

LENGTH OF REGISTRATIONSEXUAL OFFENSES

Lifetime Registration

See Tex. Code of Crim. Proc. Art. 62.101(a), 62.001(5), (6)

  • Continuous sexual abuse of a young child or children. TPC 21.02
  • Indecency with a young child under. TPC 21.11(a)(1)
  • Sexual assault. TPC 22.011
  • Aggravated sexual assault. TPC 22.021
  • Aggravated kidnapping under TPC 20.02(a)(4) with intent to violate or abuse the victim sexually
  • Burglary under TPC 30.02(d) if offense was committed with the intent to commit one of the above listed felonies
  • Sexual performance by a child. TPC 43.25
  • An offense under the laws of another state, federal law, the laws of a foreign country, or the Uniform Code of Military Justice if the offense’s elements are substantially similar to the above felonies.
  • Trafficking of a person under TPC 20A.02(a)(3), (4), (7), or (8)
  • Prohibited sexual conduct. TPC 25.02
  • Compelling prostitution under 43.05(a)(2)
  • Possession or promotion of child porn. TPC 43.26
  • Indecency with a young child under TPC 21.11(a)(2) if the person received another conviction or adjudication that requires registration
  • Unlawful restraint, Kidnapping, or Aggravated kidnapping if there was an affirmative finding that the victim or intended victim was younger than 17 and the person receives or has received another conviction or adjudication that requires registration. TPC 20.02, 20.03, 20.04
  • Obscenity under TPC 43.23(h)

10-Year Registration

 

See Tex. Code of Crim. Proc. Art. 62.101(c), 62.001(5)

  • Indecency with a young child in a manner not listed under lifetime registration. TPC 21.11
  • Unlawful restraint, Kidnapping, or Aggravated kidnapping if there was a finding that the victim or intended victim was younger than 17. TPC 20.02, 20.03, 20.04
  • An attempt, conspiracy, or solicitation to commit one of the above listed offenses in this chart
  • Online solicitation of a minor. TPC 33.021
  • Prostitution under TPC 43.02(c)(3)
  • Second indecent exposure under TPC 21.08 or an offense with substantially similar elements under the laws of another state, federal law, the laws of a foreign country or the Uniform Code of Military Justice but not if the second resulted in deferred adjudication.
  • An offense of the laws of another state, federal law, the laws of a foreign country or the Uniform Code of Military Justice that contains elements that are substantially similar to the elements of the offenses described above, but not if the offense resulted in deferred adjudication.

What Exactly Does the Duty to Register Require?

A person required to register must register with the municipality or county where they reside or intent to reside for more than seven days. Among other things the registration must contain the type of offense the person was convicted of, the age of the victim, and a recent color photograph of the person. Tex. Code Crim. Proc. Art. 62.051. If the person spends more than 48 hours in a different municipality or county three or more times in a month they must provide the local authority with certain information. Art. 62.059. In addition to registering, the person must comply with a request for a specimen of their DNA. Tex. Code Crim. Proc. Art. 62.061; Government Code §411.1473. Also, if the Department of Public Safety has assigned a person a numeric risk level of 3, public notice must be given of where that person intends to live. Art. 62.056. Further, there are restrictions on type of employment for certain registrants. Art. 62.063.*

As you can see there are many consequences that come with a conviction, deferred adjudication or adjudication for delinquent conduct for one of the above listed offenses and there are additional requirements that could be imposed depending on the particular alleged offense. These very specific requirements provided under the Texas Code of Criminal Procedure must be followed so that a person does not violate the registration requirements and face additional criminal consequences ranging from a state jail felony to a first degree felony. Art. 62.102. If it has been alleged that you committed one of these offenses, it can be extremely overwhelming but also important to understand what lies ahead for you. Contact our criminal defense attorneys today to ensure that you fully comprehend what is being alleged, what consequences could be attached, and what your options are in your specific situation. Additionally, contact us if you are currently required to register and have questions about what duties are required of you.

*Note this blog does not provide all requirements and additional requirements for certain offenses. To find all requirements see Article 62 of the Texas Code of Criminal Procedure.

Sep26
Love5
PROJECT SAFeR: An alternative for certain juveniles charged with sex crimes in Tarrant County, TX, featuring a distressed young person sitting against a fence.

Project SAFeR: Juvenile Sex Crime Diversion Program in Fort Worth

ByJuvenile

Treatment without Labels: An Effective Program for Juveniles Charged with a Sex Crime in Tarrant County

PROJECT SAFeR logo with text highlighting an alternative for certain juveniles charged with sex crimes in Tarrant County, TX, featuring a distressed young boy sitting against a chain-link fence.Imagine this: You receive a call out of the blue from a detective telling you that he is investigating your 11-year-old son for sexually touching your 6-year-old niece. How do you protect your young son who is being charged with Aggravated Sexual Assault of a Child? How do you choose between helping your son and helping your niece? Is there any way to get them both help without prosecuting your son? Will your son be labeled a sex offender for the rest of his life? Is there any way for your extended family to work this out?

While this may seem far-fetched, it happens more than you think. Fortunately, there is now a program in Tarrant County that can help without destroying the life of either child involved. It is called Project SAFeR.

What is Project SAFeR?

Project SAFeR (which stands for Safety and Family Resiliency) is a program in Tarrant County designed to help youth with problematic sexual behaviors who are between the ages of 7-12. There are three components to the program: legal, supervision, and counseling. The program, which started in July 2015, was created through a collaborative effort of Lena Pope Home, Alliance for Children, Tarrant County District Attorney’s Office, Child Protective Services (CPS), Tarrant County Juvenile Services, and local law enforcement. The purpose of the program is to help the victim, young juvenile, and their families deal with the problem in an effective way so that both children may go on to lead productive lives.

What is Problematic Sexual Behavior?

Problematic sexual behavior is that which is goes beyond what is normal sexual development for a child’s age. It usually involves children who are quite a bit different in age or who are not considered equals due to maturity, size, or other factors. A child with problematic sexual behaviors will act out on another child who is not a willing participant, either through the use of force, threats, bribery, or some other type of coercion or persuasion. Problematic sexual behaviors interfere with normal, nonsexual, childhood interests and behaviors, and usually continue even after a child’s behavior has been discovered and reprimanded.

The Legal Component of Project SAFeR

Because kids under the age of 10 cannot be prosecuted for their actions in Texas, children between the ages of 7-9 who have problematic sexual behaviors, can be referred to the counseling program but will not be required to participate in the diversion or supervision components. For these children, a parent can contact Lena Pope Home in Fort Worth at 817-255-2500 for help (see below for more specifics on the counseling component).

For children between the ages of 10-12, law enforcement and/or CPS will likely be involved to some extent. Many times, these cases will be referred to Tarrant County Juvenile Services and the Tarrant County District Attorney’s Office Juvenile Unit.

In order to be eligible to participate in the legal, or diversion, component of Project SAFeR, the charged juvenile must be between the ages of 10-12. If a juvenile is older than 12, he will be ineligible for the diversion program. Other eligibility requirements for the program are:

  • A multi-disciplinary team must decide that the case is appropriate for inclusion in the program based on the totality of the circumstances. This team screens cases for the program while they are still being investigated by CPS and law enforcement.
  • The victim’s family must agree to the charged juvenile being in the program. If the victim’s family does not agree, this alone will make the juvenile ineligible.
  • A risk assessment, which will be completed by the counselors involved in the program, must show the charged juvenile to be at a low risk to reoffend.

If all of these requirements are met, a juvenile’s case will be filed with the court by the prosecutor. The child will appear before a juvenile court judge and must admit to committing the offense. The judge will make a finding that there is enough evidence to find the juvenile guilty of the offense, but the judge will instead withhold judgement on the issue of delinquency and order the child into Project SAFeR.

If the juvenile successfully completes the supervision and counseling components of the program, the prosecutor will dismiss the case. If, however, the child is kicked out of the program, then he will return to court and will be found delinquent at that time and then will proceed to the disposition, or punishment, stage of the case. A juvenile who successfully completes Project SAFeR will, as a condition of the program, be eligible to have his record sealed upon his 16th birthday.

The Supervision Component of Project SAFeR

The supervision component of Project SAFeR is provided by Tarrant County Juvenile Services. If the child is allowed into the program, he will be assigned a juvenile probation officer who is a part of the Juvenile Offender Unit. The term of supervision will be up to 6 months in length. During that time, the juvenile must complete the counseling component of the program as well as go to school, not commit any new offenses, and obey his parents/guardians. The probation officer will check in on the juvenile, as well as check with his counselor and parents, on a regular basis while in the program.

The Sexual Counseling Component of Project SAFeR

The counseling piece of the program is provided by Lena Pope Home at their Fort Worth location. Both the child charged and at least one caregiver will be required to attend all counseling sessions while in the program. The counseling is once a week (on Monday nights) for 18 weeks.

The juvenile will attend a child’s group at the same time that his caregiver is attending a parents’ group each week. The two groups will be learning the similar material at the same time. So, for instance, during the week that the juvenile is learning the sexual behavior rules, his parent will be learning how to enforce those sexual behavior rules in the home. In addition to learning about sexual behavior rules and appropriate relationships, those in the program will also learn communication skills and stress relief strategies. Both the juvenile and parent must demonstrate that they have learned and are implementing the information taught in order to successfully complete the program. The counseling is provided free of charge to those in the program.

Outcomes and Benefits of Project SAFer

While this program has only been in existence in Tarrant County for a little over a year, it has been implemented in other parts of the country for many years. The program in Omaha, Nebraska, recently completed a 10-year follow-up study on those juveniles who completed their program. They found that of those who successfully completed the program, less than 2% committed a new sexual offense. This is a much lower reoffending rate than traditional sex offending treatment programs.

The majority of those who have been accepted into the Tarrant County Project SAFeR program have graduated. Many of those parents have indicated that the information they learned in the program not only helped them handle their children’s sexual behavior problems, but it also taught them to be better parents in general. The techniques and strategies taught in the counseling component have also been instrumental in helping parents to communicate better and have better relationships with their children. It has brought these families closer together.

Project SAFeR is taking a whole new approach to treating children with problematic sexual behaviors. It starts with NOT labeling or treating them as sex offenders. It approaches the problem from a family-focused point of view and treats it as a serious problem that the family can get through together, as opposed to treating the juvenile as if he is a sex offender who is doomed for the rest of his life. If your child is between the ages of 10-12 and is facing prosecution for a sex crime in Tarrant County, ask your attorney about whether Project SAFeR is the right approach for you and your family.

About the Author

Christy Dunn is a writer and attorney licensed to practice in Texas. She was a prosecutor for 15 years. The last five years of her prosecutorial career was spent in the Juvenile Division of the Tarrant County District Attorney’s Office. She has tried over 20 juvenile cases in Texas and multiple certification hearings. She was part of the multidisciplinary team that created a Project SAFeR.

Sep21
Love1
Silhouette of a distressed individual in front of prison bars with text “Excessive Bail Shall Not Be Required” and “EIGHT AMENDMENT U.S. CONSTITUTION,” emphasizing bail reform and legal rights.

“Excessive Bail Shall Not Be Required” | Bail is Not Intended to be Punishment

ByBail Bonds

Silhouette of a person sitting in a jail cell with text overlay: "Excessive Bail Shall Not Be Required" and "EIGHT AMENDMENT U.S. CONSTITUTION," emphasizing the legal principles surrounding bail in the context of criminal justice.Just the other day, I read something written by one of our local mayors calling for bail reform because a certain person had been released on what she believed was an insufficient bail amount. This got me thinking about our system of bail in Texas and the real purpose behind the system. I doubt I’ll ever convince the mayor that we ought not to punish people before they’ve had their day in court, but I thought it best to lay out the history and purpose of bail in case she ever wants to know.

The purpose of bail in the criminal justice system has been convoluted throughout the years, leaving many people with a fundamental misunderstanding about what bail actually is and the purpose behind it. Often people think bail is just another form of punishment (i.e. “Let’s lock him up and throw away the key!”), when in reality it should be the exact opposite. The use of bail allows a defendant to be released and have the ability to prepare the best defense possible for trial. At the moment that bail is set, the person is presumed innocent. So what exactly is bail? What is the overarching purpose? How is the amount of bail determined?

What is Bail?

Under both the United States Constitution and the Texas Constitution, generally, criminal defendants have a right to bail and to be free from excessive bail. Tex. Const. art. I §11, §13. With that, while all non-capital crimes are eligible for bail, bail can be denied in several situations under the Texas Constitution and it is at the judge or magistrate’s discretion whether to grant bail where defendant has been charged with capital murder. Tex. Const. art. I, §11; Bill of Rights; Judiciary Act of 1789.

Bail is the guarantee given by the defendant that he will appear at his court settings. Bail includes both bail bonds and personal bonds. Tex. Code Crim. Proc. Ann. Art. 17.01. A bail bond is a written undertaking by the defendant ensuring his appearance. Art. 17.02. There are a few different ways to go about getting a bail bond:

  1. The defendant can have a family member or friend sign the bond as their surety, accepting responsibility for the amount if the defendant does not appear;
  2. A defendant can go through a commercial bail bondsman and have them be their surety; or
  3. The defendant can pay the court cash in the amount of the bond. Id.

A personal bond is when there is no surety and no money paid when the defendant is released and the defendant will be responsible for a set amount if they do not appear. Art. 17.03.

What is the Purpose of Bail?

Congress stated that, historically, the sole purpose of bail was to secure defendant’s presence in court. 110 H.R. 2286. The purpose remains the same, to reduce flight risk but also to give the defendant the best opportunity to prepare for trial. Stack v. Boyle, 342 U.S. 1 (1951). Essentially, the idea behind bail is that if a person puts down a chunk of money they are less likely to flee. Riverside v. McLaughlin, 500 U.S. 44 (1991). In no way should bail be a form of punishment for the defendant and the Eighth Amendment makes it clear that bail shall not be excessive. Further, being released on bail does not prove guilt nor affect the presumption of innocence. A person remains innocent until proven guilty when granted bail. United States v. Houston, 26 F. Cas. 379.

How is Bail Set in Texas?

In Texas, a court, judge, or magistrate setting bail should use their discretion under the Texas Constitution and the rules provided in Article 17.15 of the Texas Code of Criminal Procedure. The Code sets out 5 rules in determining bail for a defendant:

  1. The bail set must be “sufficiently high” so as to reasonably ensure the defendant’s appearance in court.
  2. Bail must not be an “instrument of oppression.” Which essentially means bail is not to be a form of punishment.
  3. The nature and circumstances of the offense are to be considered.
  4. The defendant’s ability to make bail will be considered.
  5. The future safety of the community and victim of the alleged offense must be considered.

The court is also allowed to look to other factors including criminal history, family ties, and links to the community. Gonzalez v. State, 996 S.W.3d 350. If bail is set in an amount that the defendant cannot make, the court will hear evidence on that issue and will lower it if the amount was found improper or excessive under the rules and/or the Constitution. If the court refuses then the defendant can also appeal before trial. Id.

Bail in Tarrant County

If you were to compare the standard bail amounts from county to county across Texas for similar criminal allegations, you would probably find that Tarrant County is on the lower side. Johnson County and Parker County might set a higher bail amount for the same or similar case. This does not mean that Tarrant County’s bail system needs to be reformed. Clearly, if Tarrant County began to experience more folks not showing up for court, then the bail might go up (and it does in each individual case, when the defendant proves himself to be unreliable in appearing for court). Before any public officials begin calling for reform in Tarrant County, I would suggest that we determine whether, in fact, the system is broken, or if, perhaps we are trying to subject a defendant to pretrial punishment with excessive bail.