Sarah Roland

Sarah Roland is the editor of Voice for the Defense. She attended undergraduate school at Baylor University, then attended law school at Texas Tech. From 2006-2011, she worked for Jackson & Hagen. In 2011, she opened her own practice in Denton. Sarah was chosen as a Super Lawyer for 2017 in the state of Texas, as well as being awarded the Hal Jackson Award by the Denton County Criminal Defense Association. She ranks as a top lawyer in the area through her trial work. She primarily serves clients in Denton, Dallas, Collin, and Tarrant County. Sarah also handle cases in Wise and Cooke County.

Health and Safety Code Chapter 81

Chapter 81 of the Health and Safety Code is not a common reference in many of our daily practices.  Most of us have never had the occasion to read the Communicable Disease Prevention and Control Act before. However, amid this pandemic, it is worth knowing and reviewing Chapter 81.  Here are a few sections to know:

Sec. 81.002.  RESPONSIBILITY OF STATE AND PUBLIC.  The state has a duty to protect the public health.  Each person shall act responsibly to prevent and control communicable disease.

Sec. 81.003

(1) “Communicable disease” means an illness that occurs through the transmission of an infectious agent or its toxic products from a reservoir to a susceptible host, either directly, as from an infected person or animal, or indirectly through an intermediate plant or animal host, a vector, or the inanimate environment.

(1-a)  “Emergency response employee or volunteer” means an individual acting in the course and scope of employment or service as a volunteer as emergency medical service personnel, a peace officer, a detention officer, a county jailer, or a fire fighter.

(1-b)  “Designated infection control officer” means the person serving as an entity’s designated infection control officer under Section 81.012.

(2)  “Health authority” means:

(A)  a physician appointed as a health authority under Chapter 121 (Local Public Health Reorganization Act) or the health authority’s designee;  or

(B)  a physician appointed as a regional director under Chapter 121 (Local Public Health Reorganization Act) who performs the duties of a health authority or the regional director’s designee.

(7)  “Public health disaster” means:

(A)  a declaration by the governor of a state of disaster;  and

(B)  a determination by the commissioner that there exists an immediate threat from a communicable disease that:

(i)  poses a high risk of death or serious long-term disability to a large number of people;  and

(ii)  creates a substantial risk of public exposure because of the disease’s high level of contagion or the method by which the disease is transmitted.

Sec. 81.021.  PROTECTION OF PUBLIC HEALTH.  The executive commissioner and department shall exercise their powers in matters relating to protecting the public health to prevent the introduction of disease into the state.

Sec. 81.081.  DEPARTMENT’S DUTY.  The department shall impose control measures to prevent the spread of disease in the exercise of its power to protect the public health.

Tex. Health & Safety Code § 81.085.  AREA QUARANTINE;  CRIMINAL PENALTY. 

(a)  If an outbreak of communicable disease occurs in this state, the commissioner or one or more health authorities may impose an area quarantine coextensive with the area affected.  The commissioner may impose an area quarantine, if the commissioner has reasonable cause to believe that individuals or property in the area may be infected or contaminated with a communicable disease, for the period necessary to determine whether an outbreak of communicable disease has occurred.  A health authority may impose the quarantine only within the boundaries of the health authority’s jurisdiction.

(b)  A health authority may not impose an area quarantine until the authority consults with the department.  A health authority that imposes an area quarantine shall give written notice to and shall consult with the governing body of each county and municipality in the health authority’s jurisdiction that has territory in the affected area as soon as practicable.

(c)  The department may impose additional disease control measures in a quarantine area that the department considers necessary and most appropriate to arrest, control, and eradicate the threat to the public health.  Absent preemptive action by the department under this chapter or by the governor under Chapter 418, Government Code (Texas Disaster Act of 1975), a health authority may impose in a quarantine area under the authority’s jurisdiction additional disease control measures that the health authority considers necessary and most appropriate to arrest, control, and eradicate the threat to the public health.

(d)  If an affected area includes territory in an adjacent state, the department may enter into cooperative agreements with the appropriate officials or agencies of that state to:

(1)  exchange morbidity, mortality, and other technical information;

(2)  receive extrajurisdictional inspection reports;

(3)  coordinate disease control measures;

(4)  disseminate instructions to the population of the area, operators of interstate private or common carriers, and private vehicles in transit across state borders;  and

(5)  participate in other public health activities appropriate to arrest, control, and eradicate the threat to the public health.

(e)  The department or health authority may use all reasonable means of communication to inform persons in the quarantine area of the department’s or health authority’s orders and instructions during the period of area quarantine.  The department or health authority shall publish at least once each week during the area quarantine period, in a newspaper of general circulation in the area, a notice of the orders or instructions in force with a brief explanation of their meaning and effect.  Notice by publication is sufficient to inform persons in the area of their rights, duties, and obligations under the orders or instructions.

(f)  The department or, with the department’s consent, a health authority may terminate an area quarantine.

(g)  To provide isolation and quarantine facilities during an area quarantine, the commissioner’s court of a county, the governing body of a municipality, or the governing body of a hospital district may suspend the admission of patients desiring admission for elective care and treatment, except for needy or indigent residents for whom the county, municipality, or district is constitutionally or statutorily required to care.

(h)  A person commits an offense if the person knowingly fails or refuses to obey a rule, order, or instruction of the department or an order or instruction of a health authority issued under a department rule and published during an area quarantine under this section.  An offense under this subsection is a felony of the third degree.

(i)  On request of the department during a public health disaster, an individual shall disclose the individual’s immunization information.  If the individual does not have updated or appropriate immunizations, the department may take appropriate action during a quarantine to protect that individual and the public from the communicable disease.

(j)  A peace officer, including a sheriff or constable, may use reasonable force to:

(1)  secure a quarantine area; and

(2)  except as directed by the department or health authority, prevent an individual from entering or leaving the quarantine area.

SUBCHAPTER G. COURT ORDERS FOR MANAGEMENT OF PERSONS WITH COMMUNICABLE DISEASES

Sec. 81.161.  MOTION FOR ORDER OF PROTECTIVE CUSTODY.

(a)  A motion for an order of protective custody may be filed only in the court in which an application for a court order for the management of a person with a communicable disease is pending.

(b)  The motion may be filed by the municipal, county, or district attorney on behalf of the health authority.  The motion shall be filed by the attorney general at the request of the department.

(c)  The motion must state that:

(1)  the department or health authority has reason to believe and does believe that the person meets the criteria authorizing the court to order protective custody;  and

(2)  the belief is derived from:

(A)  the representations of a credible person;

(B)  the conduct of the person who is the subject of the motion;  or

(C)  the circumstances under which the person is found.

(d)  The motion must be accompanied by an affidavit of medical evaluation.

(e)  The judge of the court in which the application is pending may designate a magistrate to issue protective custody orders in the judge’s absence.

Sec. 81.162.  ISSUANCE OF ORDER.

(a)  The judge or designated magistrate may issue a protective custody order if the judge or magistrate determines:

(1)  that the health authority or department has stated its opinion and the detailed basis for its opinion that the person is infected with or is reasonably suspected of being infected with a communicable disease that presents an immediate threat to the public health;  and

(2)  that the person fails or refuses to comply with the written orders of the health authority or the department under Section 81.083, if applicable.

(b)  Noncompliance with orders issued under Section 81.083 may be demonstrated by the person’s behavior to the extent that the person cannot remain at liberty.

(c)  The judge or magistrate may consider only the application and affidavit in making a determination that the person meets the criteria prescribed by Subsection (a). If only the application and certificate are considered the judge or magistrate must determine that the conclusions of the health authority or department are adequately supported by the information provided.

(d)  The judge or magistrate may take additional evidence if a fair determination of the matter cannot be made from consideration of the application and affidavit only.

(e)  The judge or magistrate may issue a protective custody order for a person who is charged with a criminal offense if the person meets the requirements of this section and the head of the facility designated to detain the person agrees to the detention.

(f)  Notwithstanding Section 81.161 or Subsection (c), a judge or magistrate may issue a temporary protective custody order before the filing of an application for a court order for the management of a person with a communicable disease under Section 81.151 if:

(1)  the judge or magistrate takes testimony that an application under Section 81.151, together with a motion for protective custody under Section 81.161, will be filed with the court on the next business day; and

(2)  the judge or magistrate determines based on evidence taken under Subsection (d) that there is probable cause to believe that the person presents a substantial risk of serious harm to himself or others to the extent that the person cannot be at liberty pending the filing of the application and motion.

(g)  A temporary protective custody order issued under Subsection (f) may continue only until 4 p.m. on the first business day after the date the order is issued unless the application for a court order for the management of a person with a communicable disease and a motion for protective custody, as described by Subsection (f)(1), are filed at or before that time.  If the application and motion are filed at or before 4 p.m. on the first business day after the date the order is issued, the temporary protective custody order may continue for the period reasonably necessary for the court to rule on the motion for protective custody.

(h)  The judge or magistrate may direct a peace officer, including a sheriff or constable, to prevent a person who is the subject of a protective custody order from leaving the facility designated to detain the person if the court finds that a threat to the public health exists because the person may attempt to leave the facility.

Sec. 81.163.  APPREHENSION UNDER ORDER.

(a)  A protective custody order shall direct a peace officer, including a sheriff or constable, to take the person who is the subject of the order into protective custody and transport the person immediately to an appropriate inpatient health facility that has been designated by the commissioner as a suitable place.

(b)  If an appropriate inpatient health facility is not available, the person shall be transported to a facility considered suitable by the health authority.

(c)  The person shall be detained in the facility until a hearing is held under Section 81.165.

(d)  A facility must comply with this section only to the extent that the commissioner determines that the facility has sufficient resources to perform the necessary services.

(e)  A person may not be detained in a private health facility without the consent of the head of the facility.

(f)  A protective custody order issued under Section 81.162 may direct an emergency medical services provider to provide an ambulance and staff to immediately transport the person who is the subject of the order to an appropriate inpatient health facility designated by the order or other suitable facility.  The provider may seek reimbursement for the costs of the transport from any appropriate source.

Sec. 81.164.  APPOINTMENT OF ATTORNEY.

(a)  The judge or designated magistrate shall appoint an attorney to represent a person who is the subject of a protective custody order who does not have an attorney when the order is signed.

(b)  Within a reasonable time before a hearing is held under Section 81.165, the court that ordered the protective custody shall provide the person and the person’s attorney with a written notice that states:

(1)  that the person has been placed under a protective custody order;

(2)  the grounds for the order;  and

(3)  the time and place of the hearing to determine probable cause.

Sec. 81.165.  PROBABLE CAUSE HEARING.

(a)  A hearing must be held to determine if:

(1)  there is probable cause to believe that a person under a protective custody order presents a substantial risk of serious harm to himself or others to the extent that the person cannot be at liberty pending the hearing on a court order for the management of a person with a communicable disease;  and

(2)  the health authority or department has stated its opinion and the detailed basis for its opinion that the person is infected with or is reasonably suspected of being infected with a communicable disease that presents an immediate threat to public health.

(b)  The hearing must be held not later than 72 hours after the time that the person was detained under the protective custody order.  If the period ends on a Saturday, Sunday, or legal holiday, the hearing must be held on the next day that is not a Saturday, Sunday, or legal holiday.  The judge or magistrate may postpone the hearing for an additional 24 hours if the judge or magistrate declares that an extreme emergency exists because of extremely hazardous weather conditions that threaten the safety of the person or another essential party to the hearing.  If the area in which the person is found, or the area where the hearing will be held, is under a public health disaster, the judge or magistrate may postpone the hearing until the period of disaster is ended.

(c)  A magistrate or a master appointed by the presiding judge shall conduct the hearing.  The master is entitled to reasonable compensation.

(d)  The person and his attorney shall have an opportunity at the hearing to appear and present evidence to challenge the allegation that the person presents a substantial risk of serious harm to himself or others.  If the health authority advises the court that the person must remain in isolation or quarantine and that exposure to the judge, jurors, or the public would jeopardize the health and safety of those persons and the public health, a magistrate or a master may order that a person entitled to a hearing for a protective custody order may not appear in person and may appear only by teleconference or another means the magistrate or master finds appropriate to allow the person to speak, to interact with witnesses, and to confer with the person’s attorney.

(e)  The magistrate or master may consider evidence that may not be admissible or sufficient in a subsequent commitment hearing, including letters, affidavits, and other material.

(f)  The state may prove its case on the health authority’s or department’s affidavit of medical evaluation filed in support of the initial motion.

Sec. 81.166. ORDER FOR CONTINUED DETENTION.

(a)  The magistrate or master shall order that a person remain in protective custody if the magistrate or master determines after the hearing that an adequate factual basis exists for probable cause to believe that the person presents a substantial risk of serious harm to himself or others to the extent that the person cannot remain at liberty pending the hearing on the application.

(b)  The magistrate or master shall arrange for the person to be returned to the health facility or other suitable place, along with copies of the affidavits and other material submitted as evidence in the hearing and the notification prepared as prescribed by Subsection (d).

(c)  A copy of the notification of probable cause hearing and the supporting evidence shall be filed with the district court that entered the original order of protective custody.

(d)  The notification of probable cause hearing shall read as follows:

(Style of Case)

NOTIFICATION OF PROBABLE CAUSE HEARING

On this the _____ day of _________________, 20__, the undersigned hearing officer heard evidence concerning the need for protective custody of ___________ (hereinafter referred to as proposed patient).  The proposed patient was given the opportunity to challenge the allegations that the proposed patient presents a substantial risk of serious harm to self or others.

The proposed patient and the proposed patient’s attorney _________________________ have been given written notice that the proposed patient was placed under an order of protective custody and the reasons for such order on ___________ (date of notice).

I have examined the affidavit of medical evaluation and ________________ (other evidence considered).  Based on this evidence, I find that there is probable cause to believe that the proposed patient presents a substantial risk of serious harm to self (yes ____ or no ____) or others (yes ____ or no ____) such that the proposed patient cannot be at liberty pending final hearing because the proposed patient is infected with or is reasonably suspected of being infected with a communicable disease that presents an immediate threat to the public health and the proposed patient has failed or refused to comply with the orders of the health authority or the Department of State Health Services delivered on __________ (date of service) ____________.

Sec. 81.167.  DETENTION IN PROTECTIVE CUSTODY.

(a)  The head of a facility or the facility head’s designee shall detain a person under a protective custody order in the facility pending a court order for the management of a person with a communicable disease or until the person is released or discharged under Section 81.168.

(b)  A person under a protective custody order shall be detained in an appropriate inpatient health facility that has been designated by the commissioner or by a health authority and selected by the health authority under Section 81.159.

(c)  A person under a protective custody order may be detained in a nonmedical facility used to detain persons who are charged with or convicted of a crime only with the consent of the medical director of the facility and only if the facility has respiratory isolation capability for airborne communicable diseases.  The person may not be detained in a nonmedical facility under this subsection for longer than 72 hours, excluding Saturdays, Sundays, legal holidays, the period prescribed by Section 81.165(b) for an extreme weather emergency, and the duration of a public health disaster.  The person must be isolated from any person who is charged with or convicted of a crime.

(d)  The health authority shall ensure that proper isolation methods are used and medical care is made available to a person who is detained in a nonmedical facility under Subsection (c).

Sec. 81.168.  RELEASE FROM DETENTION.

(a)  The magistrate or master shall order the release of a person under a protective custody order if the magistrate or master determines after the hearing under Section 81.165 that no probable cause exists to believe that the person presents a substantial risk of serious harm to himself or others.

Sec. 81.169.  GENERAL PROVISIONS RELATING TO HEARING.

(a)  Except as provided by Subsection (b), the judge may hold a hearing on an application for a court order for the management of a person with a communicable disease at any suitable location in the county.  The hearing should be held in a physical setting that is not likely to have a harmful effect on the public or the person.

(b)  On the request of the person or the person’s attorney, the hearing on the application shall be held in the county courthouse.

(c)  The health authority shall advise the court on appropriate control measures to prevent the transmission of the communicable disease alleged in the application.

(d)  The person is entitled to be present at the hearing.  The person or the person’s attorney may waive this right.

(e)  The hearing must be open to the public unless the person or the person’s attorney requests that the hearing be closed and the judge determines that there is good cause to close the hearing.

(f)  The Texas Rules of Evidence apply to the hearing unless the rules are inconsistent with this chapter.

(g)  The court may consider the testimony of a nonphysician health professional in addition to medical testimony.

(h)  The hearing is on the record, and the state must prove each element of the application criteria by clear and convincing evidence.

(i)  Notwithstanding Subsection (d), if the health authority advises the court that the person must remain in isolation or quarantine and that exposure to the judge, jurors, or the public would jeopardize the health and safety of those persons and the public health, a judge may order that a person entitled to a hearing may not appear in person and may appear only by teleconference or another means that the judge finds appropriate to allow the person to speak, to interact with witnesses, and to confer with the person’s attorney.

Sec. 81.170.  RIGHT TO JURY.

(a)  A hearing for temporary management must be before the court unless the person or the person’s attorney requests a jury.

(b)  A hearing for extended management must be before a jury unless the person or the person’s attorney waives the right to a jury.

(c)  A waiver of the right to a jury must be in writing, under oath, and signed by the person and the person’s attorney.

(d)  The court may permit a waiver of the right to a jury to be withdrawn for good cause shown.  The withdrawal must be made at least seven days before the date on which the hearing is scheduled.

(e)  A court may not require a jury fee.

(f)  The jury shall determine if the person is infected with or is reasonably suspected of being infected with a communicable disease that presents a threat to the public health and, if the application is for inpatient treatment, has refused or failed to follow the orders of the health authority.  The jury may not make a finding about the type of services to be provided to the person.

Sec. 81.171.  RELEASE AFTER HEARING.

(a)  The court shall enter an order denying an application for a court order for temporary or extended management if after a hearing the judge or jury fails to find, from clear and convincing evidence, that the person:

(1)  is infected with or is reasonably suspected of being infected with a communicable disease that presents a threat to the public health;

(2)  has refused or failed to follow the orders of the health authority if the application is for inpatient treatment;  and

(3)  meets the applicable criteria for orders for the management of a person with a communicable disease.

(b)  If the court denies the application, the court shall order the immediate release of a person who is not at liberty.

Sec. 81.172.  ORDER FOR TEMPORARY MANAGEMENT.

(a)  The judge or jury may determine that a person requires court-ordered examination, observation, isolation, or treatment only if the judge or jury finds, from clear and convincing evidence, that:

(1)  the person is infected with or is reasonably suspected of being infected with a communicable disease that presents a threat to the public health and, if the application is for inpatient treatment, has failed or refused to follow the orders of the health authority or department;  and

(2)  as a result of the communicable disease the person:

(A)  is likely to cause serious harm to himself;  or

(B)  will, if not examined, observed, isolated, or treated, continue to endanger public health.

(b)  The judge or jury must specify each criterion listed in Subsection (a)(2) that forms the basis for the decision.

(c)  The person or the person’s attorney, by a written document filed with the court, may waive the right to cross-examine witnesses, and the court may admit, as evidence, the affidavit of medical evaluation.  The affidavit admitted under this subsection constitutes competent medical testimony, and the court may make its findings solely from the affidavit.

(d)  An order for temporary management shall state that examinations, treatment, and surveillance are authorized for a period not longer than 90 days.

(e)  The department, with the cooperation of the head of the facility, shall submit to the court a general program of treatment to be provided.  The program must be submitted not later than the 14th day after the date the order is issued and must be incorporated into the court order.

Editor’s Comment: All Hands On Deck

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The response to the COVID-19 pandemic is infiltrating every aspect of life. It’s affecting our work and how we interact with clients and attend court. Adapting to what seems like a constant change in court procedures is more than frustrating. It is clear this is not business as usual. It’s our new, present reality.

And in many ways, it requires a greater degree of attention and advocacy both for us and our clients. Neither we, as criminal defense lawyers, nor our clients, are expendable. The system cannot and will not work without us. 

We all must do our part professionally and personally. First of all, let’s continue to take care of ourselves and our families. We can’t effectively take care of anyone else if we don’t take care of ourselves first. Let’s also continue to support and help each other. We must stand together and collectively advocate for our interests. We are the only ones who look after us. And let’s continue to vigorously advocate for our clients. Let’s file PR bonds when necessary and keep in communication with our clients and their families. Consider how much anxiety parents or loved ones of clients must feel if their loved one is in jail during this pandemic. In spite of this pandemic, our justice system will remain and advocacy for our clients is paramount.

Please also know that there are tremendous resources available through TCDLA, and as always, we have a legion of lawyers willing and ready to help at any point, even if it’s just to talk. Remember our members’ response to Hurricane Harvey in 2017? We will weather this viral storm, too, together. 

Let’s all also be careful that the prudent practice of social distancing doesn’t mutate into social isolation.  We need each other. And, at the same time, while we may be feeling a bit of cabin fever with the new practice of social distancing, let’s remember our clients in jail, some of them in isolation. If we think social distancing is hard at times, let’s perhaps think about how to channel this feeling into a future jury argument about how hard being separated from society actually is. Now, we all have the common shared experience of social distancing that perhaps we can draw on for the benefit of our clients. 

Be safe and well.

Editor’s Comment: The Importance of Storytelling

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Everyone has a story. And everyone likes to hear a story. Think about it: From the time we are little when we’re being tucked into bed at night, or riding in the car, we loved having stories read or told to us. Now, we tell stories to our children and to our grandchildren, and we relish their reactions to the stories we tell. We tell stories to our friends and our significant others. Stories are passed along from generation to generation; stories keep cultures and traditions alive.

As trial lawyers, we are storytellers by nature. The ability of each of us to tell our client’s story in the most compelling way—whether it be to judge, jury, or prosecutor—is a must.

So, what makes a good story great? And, what makes a good storyteller a great storyteller?

In storytelling, we have all heard about the drama triangle­ with the rescuer, the persecutor, and the victim at each point. Dr. Stephen Karpman developed this drama triangle decades ago as a model to show the various roles of human interaction in conflict situations. We have all heard, and probably use, some version of Dr. Karpman’s drama triangle. At the start of any criminal case, the persecutor is our client, the victim is the actual victim or complainant, and the rescuer is the lead detective or the prosecutor. In order to be successful, we have to tell our stories to a jury such that the triangle flips, and the jury—rather than the police or prosecutor—becomes the rescuer of our client who is the victim (versus the complainant), and the persecutor is the lead investigator, the analyst, the prosecutor, etc. (instead of our client). Flipping the drama triangle is done through effective storytelling. It’s much easier said than done, though.

Every story, regardless of where or to whom it’s told, has a clear message or theme. So, too, must the stories that we tell in courtrooms. Sometimes the message or theme is apparent from the beginning and sometimes not. It’s there, though. We just have to find it and communicate it in a clear way.

The characters in our stories must have dimension. The jury must be able to really know the characters, whether those characters are our client, the complainant, the officer, or the eyewitness. And the jury must be able to see what motivates them. We must give these characters dimension (or not), depending on their role in the story.

Authenticity and passion are what turn good storytellers into great storytellers, no matter the venue. We must have some sort of connection with our client. It comes naturally in some cases and with some clients, but we must always work to cultivate that authenticity and passion. It takes time—investing our time to get to really know their story so we can effectively tell the story of the case. Juries can always spot a fake. Being genuine is what matters. If we don’t believe the story we are telling, we can’t expect a jury to believe it either.

In short, great storytellers invest their time, patience, and energy into their stories. Great storytellers take the time to develop the story, invest patience to discover the heart of the story, and give the energy to tell the story. With every story we tell—whether to our children, grandchildren, family, or friends—we have a chance to practice and improve our storytelling skills. We can, and should, also learn from those whose stories we enjoy hearing. We generally know someone in our circle who can just tell a really good story—someone who is a gifted storyteller. Study that person; what makes them a great storyteller?

It can be scary to stand in front of a group of captive strangers (i.e., a jury) and genuinely tell a story. Standing alone in the well of the courtroom with only the sound of your own voice can feel simultaneously terrifying and empowering. But it’s important to tell the story. Win, lose, or draw, it matters to our clients. It matters to our system of justice.

Enjoy the great stories in this issue from two great storytellers. You’ll find the Saga of Slippery Sam Cates an intriguing read, and Mr. Hart’s experience with discrimination, as told by his lawyer, is compelling. And, as always, we welcome and invite your stories, too.

Editor’s Comment: A Fresh Start

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A new year. Another fresh start. It is hard to believe it’s already 2020—nearly incomprehensible really. Everything happens so fast and yet also uncomfortably slow at times. We operate daily in a profession of “hurry up and wait.” But it’s the New Year that often helps us refocus on what is important in our lives, both professionally and personally. We all have new resolutions and goals for our lives. So, too, do our clients. So, we may be getting the phone calls about sealing and expunging records—so our clients can have a real fresh start.

Expunction is obviously the preferred course of action if a person is so entitled. See Tex. Code Crim. Proc. art. 55.01, et. seq. But if the person isn’t entitled to have their record expunged, it may be that they can have it sealed. Because the Legislature radically expanded the sealing laws in 2017, it is worth a review of some of those laws. See Tex. Gov’t Code sec. 411.071, et. seq. These laws—with the exception of automatic sealing — apply to an offense committed before, on, or after September 1, 2017.

  • Automatic Nondisclosure (411.072)—applies to a person who receives a discharge and dismissal for certain nonviolent misdemeanors on or after September 1, 2017; has never before been convicted of or placed on deferred for another offense other than a traffic offense that is punishable by a fine only; is mandatory and does not require a petition, just a request; requires some evidence establishing that person is eligible (can be an affidavit from client); can happen as soon as 180 days from the date person placed on deferred; and is only a $28 fee.
  • Non-Automatic Nondisclosures (411.0725)—applies to a person otherwise ineligible for an automatic nondisclosure; and mandates a two-year wait for certain misdemeanors and five-year wait for felonies before filing; no requirement of no prior criminal history.
  • Completion of Veterans Treatment Court (411.0729)—specifically applies to a person who completes a VTC program; applies regardless of whether the petitioner meets other eligibility criteria under the subchapter.
  • Misdemeanor Convictions (411.073)—section applies to a person placed on straight probation for a misdemeanor (other than the regular disqualifiers); a person who has never been previously convicted of or placed on deferred adjudication for another offense other than a traffic offense that is punishable by fine only; not the result of a revocation; mandatory waiting period for certain enumerated misdemeanor offenses; if ineligible under 411.073, then may still be eligible under 411.0735. (Note: There is no provision that provides for sealing records for the successful completion of straight felony probation.)
  • Deferred Probation in DWI Cases (411.0726)—there must be evidence in the petition that the person is entitled to file a petition; no revocations; has never been previously convicted of or placed on deferred adjudication for another offense other than a traffic offense that is punishable by fine only; not eligible if evidence presented that offense involves car accident involving another person (not the driver/petitioner); two-year wait after discharge and dismissal.
  • Probation in Certain DWI Cases (411.0731)—there must be evidence in the petition that the person is entitled to file a petition; no revocations; has never been previously convicted of or placed on deferred adjudication for another offense other than a traffic offense that is punishable by fine only; not eligible if evidence presented that offense involves car accident involving another person (not the driver/petitioner); two-year wait if interlock for six months; five-year wait if no interlock; may be eligible under 411.0736 if ineligible under this section

Of course, a petitioner under any section of the Government Code cannot have been in trouble for anything other than a traffic ticket during any applicable waiting period.

Importantly, Section 411.0755 explicitly states that the person who has obtained the nondisclosure is not required in any application for employment, information, or licensing to state that the person has been the subject of any criminal proceeding related to the information that is the subject of the order of nondisclosure. However, Section 411.0775 states that the criminal history record information that has been sealed may be admitted in trial during any subsequent offense if the information is admissible under the Rules of Evidence or disclosed to a prosecuting attorney for a criminal justice purpose.

The remainder of the sections detail the requirements for petitions and orders; they are substantive. Are you feeling overwhelmed about preparing a petition with all the (relatively) new nuances? Don’t. The Office of Court Administration has a form petition and order for each type of nondisclosure at https://www.txcourts.gov/rules-forms/orders-of-nondisclosure.

Helping a client expunge or seal their record is a happy part of our job. There’s no real risk involved and it’s something the client wants. We could all use a fresh start every so often. So, let’s be a part of helping our clients achieve their own fresh start.

P.S. –  You may notice a fresh, clean look to the Voice this year, too!  We are always striving to improve and get you the best quality publication possible. We officially welcome Billy Huntsman as TCLDA’s new communications director.  Be sure to send your articles and let us know how we can continue to improve.

Editor’s Comment: First and Last

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As criminal defense lawyers, we are uniquely positioned.

We have the ability to be positive influences. We have the ability to affect change, if only in but one life at a time. We are often both the first and the last: The first to get to the office, and the last to leave. The first to stand up for our client, and the last to forget—if ever—the one-word verdict. We are empathetic and compassionate. We think of others. Check out Buck Files’ article for proof or just think about the last nice thing you did for absolutely nothing in return. Born of necessity, we are intuitive, fighters, and most of all creative. It’s that creativity that helps us navigate both in and out of the courtroom. It’s that creativity that helps give us the perspective that others simply don’t have. Be thankful you are a criminal defense lawyer.

My dad, George Roland, a criminal defense lawyer and creative genius, wrote the following poem over 20 years ago. Whatever your religious preference or affiliation, enjoy the perspective and creative genius, and celebrate the wonderment of the season.

Editor’s Choice

It’s unanimous!  All Voice editors agree—Craig Hattersley is the best! After 12 years serving TCDLA as the communications director and man responsible for the Voice, we will be sad to see Craig retire at the end of January. We wish him the very best!

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The creative voice exists in our own Craig Hattersley, too. Craig is the communications director for TCDLA. He has served TCDLA for well over a decade and has finally decided it’s time to retire. Craig is the man behind the magazine so to speak. He makes the Voice happen. He has been a constant, creative, and uplifting presence behind the scenes. I’ve had the complete pleasure and privilege to work closely with him for the past several years as editor—to speak with him candidly and openly, to ponder, to laugh, to lament, and to celebrate. In this role as editor, I have been fortunate to see the man behind the curtain and to get to really know him. Craig, thank you for your creativity, service, and dedication to TCDLA, but most of all for your friendship. We love you, thank you, and will miss you! Enjoy!

Sarah Roland
Editor, Voice

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What a genuine pleasure it has been to work with our Communications Director Craig Hattersley for the past 12 years!

In an era of communication specialization, Craig has been the ultimate Jack of all trades. He does nearly everything for TCDLA communications. Those eye-popping cover designs for Voice? That’s Craig’s handiwork. The layouts for all of our CLE brochures? Craig. Graphic artistry? Publications? Social media? Craig. Craig. Craig.

I mean this literally and not figuratively: If your car broke down in the TCDLA parking lot, Craig would probably fix it. He spent years as a Volkswagen mechanic.

Craig came to TCDLA with substantial qualifications, having worked as an editor for 3rd Coast, Texas Life, and Austin Weekly, as well as working for numerous publications including Texas Monthly Press and the Village Voice. But the truth is, most of us will miss Craig the person, far more than we will miss our excellent communications director. Every meeting, phone call, or text exchange with Craig leaves you with a smile.

Best wishes, my friend!

Grant Scheiner
President-Elect

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It is with fond memories that I say farewell and safe winds to Craig Hattersley. Over the years that I was the editor of Voice, Craig was a steadfast source of support in ensuring the issues were timely published. Craig was always upbeat and approached everything with a can-do attitude. He consistently created novel covers for Voice issues and wonderful covers for our CLE brochures. I was always amazed at how friendly and supportive Craig was in all our encounters. Craig will be sorely missed by us all. Be well, brother.

Michael Gross
Past Editor, Voice

Editor’s Comment: Individual Parts Make the Whole

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We are a working organization. That’s what makes this organization so great. We all contribute our time and talents in some way for the betterment of TCDLA. Contributions from individuals meld together to make a cohesive, functional, educational, inspiring whole. That’s how this organization started nearly 50 years ago, and that’s what has kept it going all these years. We are all dedicated to the cause. As past president #43, Bobby Mims wrote in 2014:

More than 43 years ago a group of lawyers decided that a separate organization devoted to the training, education, and support of criminal defense attorneys was needed. These lawyers literally drove all over Texas collecting money to start the Texas Criminal Defense Lawyers Association. For years this small band of brothers and sisters worked and fought to prevent the erosion of the rule of law. From that small group the TCDLA has emerged as the largest and most effective state association of criminal defense lawyers in the United States.

        Among the members of this association are some of the finest lawyers in the nation. Some are nationally known superstars, but all are courageous fighters for justice. Every day in every court in Texas TCDLA lawyers confront power and advocate for the defendant. Every TCDLA member stands shoulder to shoulder with criminal defense lawyers as they walk into the courtrooms of Texas. There are few more cohesive groups than the members of this association.”

43 Voice for the Defense 4 (May 2014).

Let’s all continue to engage and be active in TCDLA. Part of being active is knowing your board members, knowing what they do for this organization, and actively communicating with them. In addition to attending quarterly board meetings, one major commitment that all board members have made to this organization is to contribute to the Voice. To become a board member, we all agree to submit two articles to the Voice each year OR if writing is just not feasible for whatever reason, substantially help with strike force OR substantially help with legislative work. And now there’s even an option to buy your way out of writing an article by contributing $750 to the Lawyers Educational Institute (LEI) each year (note: there is no grandfather clause on this monetary exception). LEI is that part of TCDLA that helps provide monies to educate criminal defense lawyers who may otherwise be unable to attend seminars. All board members make this commitment because ours is a working organization and a working board.

We are all busy and there is always a reason to put off that which can be done today; that’s why there are so many options for board members. The requirement to contribute in one of the above ways applies to everyone on the board. But, being involved in strike force, legislative efforts, and LEI is not just limited to board members. Anyone and everyone can be involved, and many of you already are. Thank you.

The points of contact for strike force are Nicole Hochglaube and Reagan Wynn.
The point of contact for legislative efforts is Bobby Mims.
To donate to LEI, contact the home office or Clay Steadman.

If you want to write an article, please do! Any criminal law topic, no matter how basic or complex, is fair game. If you’ve written a paper for a talk, feel free to turn that into an article. If you’ve successfully litigated a motion to suppress, feel free to turn that into an article. A couple of years ago I gave a presentation on writing the perfect paper (there is no such thing, by the way), and the biggest hurdle I’ve found for myself and others is getting started. So, get started!

Since last September Tyler Flood, Michael Gross (first vice president), David Guinn (secretary), Phil Baker, Kyle Therrian, Jeremy Rosenthal, Frank Sellers, and Mark Thiessen are our board/executive members who have contributed articles to the Voice. Every other fantastic article that has been written has come from our membership at large. THANK YOU. You are the ones who have done the yeomen’s work to make the Voice great.

Your board of directors and officers are always listed in the front of this publication and are easily found online. Reach out to us anytime so we can continue to make TCDLA better for all of us. Let’s all continue to contribute our time and talents to keep TCDLA great!