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Editor's Comment

Editor’s Comment: Is the Risk Worth it?


The Voice has always been an important benefit of this organization. Back in 2007, I submitted my first article for publication to the Voice. It addressed the presentment requirement of search warrants as applied to search for blood.1

Now, 13 years after my first article – and along with many other Americans, I’m certain – I find myself contemplating more and more another topic related to search warrants: no-knock warrants. The requirement has long been a part of history even before Justice Thomas authored the opinion for a unanimous SCOTUS in Wilson wherein he wrote: “At the time of the framing, the common law of search and seizure recognized a law enforcement officer’s authority to break open the doors of a dwelling, but generally indicated that he first ought to announce his presence and authority. In this case, we hold that this common-law ‘knock and announce’ principle forms a part of the reasonableness inquiry under the Fourth Amendment.”

Wilson v. Arkansas, 514 U.S. 927, 929 (1995). The case involved a search warrant based on information from a confidential informant. Police had information that the target had previously been convicted of arson and firebombing and also that he had threatened the confidential informant with a semiautomatic weapon. Police officers announced entry contemporaneous with, rather than prior to, entry in this case. The SCOTUS ultimately reversed and remanded the case to the Arkansas Supreme Court to address whether evidence of potential danger to law enforcement and destruction of evidence justified the failure of law enforcement to announce their presence prior to breaching the door.

Thus, since 1995, the knock and announce requirement is part of the reasonableness inquiry of a Fourth Amendment analysis. But now, especially given all the recent events, the question is: does the ever-increasing cost of no-knock warrants outweigh their potential benefits?

The scene in executing these no-knock warrants is often the same – an arsenal of police in military-type tactical gear (versus typical patrol uniforms that we are all used to) load up under the cover of darkness and surround the target house often giving hand signals to communicate. To anyone watching, they appear ready for war. Then, when the signal is given, they breach entry with some sort of battering ram, again under the cover of darkness, throw flashbangs while simultaneously screaming commands, and storm the location with guns drawn and shields up. The occupants are often sleeping, and there are frequently noninvolved people – sometimes kids and/or elderly – present at the location. They are awoken or interrupted suddenly by the sounds of flashbangs and screaming. Through an open interior door, the occupants may see smoke and guns pointed at them. Predictably, panic and chaos often ensue, and gunfire is often exchanged.

In my experience and reading, these no-knock warrants are typically employed in drug raids. Certainly, the same concerns that existed in Wilson as justifications for the failure of the police to announce their presence will exist in the execution of a warrant in virtually every drug (and every other criminal) case. The consideration, then, has to be is it worth the risk. Is it worth the risk to any one law enforcement life? Is it worth the risk of life to the sometimes completely innocent occupant? Importantly, to answer the question, we must acknowledge that “it” is most frequently a covert drug bust. The problem is further compounded by the fact that Texas is a proud “stand your ground” state. Gunfire, or the sound of gunfire, will often predictably be met with the return of gunfire. Is the risk of harm really worth it? Not a chance.

Just search “no-knock warrants” and you will find that many police departments in Texas are now suspending or severely limiting the use of no-knock warrants for precisely this reason. And, in June, Kentucky Senator Rand Paul introduced the Justice for Breonna Taylor Act to prohibit no-knock warrants at the federal level and for states or any local law enforcement agency that receives funding from the Department of Justice.2 What harm will it actually do to eliminate or severely restrict the use of no-knock warrants like many police departments and legislation propose? None. The warrants will still be executed, police will still come prepared, and people will still be arrested. The risk isn’t worth it.

And finally, although our country is clearly divided, let us not become so. Let us embrace the differences in each other and let us remember that whatever our differences may be, we stand united because we all are criminal defense lawyers.

Peace on earth and goodwill to all.

P.S. – A huge thank you to all those committees and individuals who have committed to contribute to the Voice. Your thoughtful contributions are what continue to propel the success of this publication.

Editor’s Comment: A Season of Change


It is with sadness and understanding that I must inform you that TCDLA’s beloved Michael Mowla has resigned his post as SDR contributor and editor after three years of contributions. I originally tapped him for the job knowing that he would raise the level of the Voice. We all know Michael has been and continues to be tireless in his efforts to help us all be a little smarter legally. He was happy to help, answer questions, and point us all in the right direction. He provided stellar (and comical) SDRs. We are grateful for his service.

Please join me in welcoming our new SDR contributor and editor, Kyle Therrian. Kyle has been extremely active – especially lately – in TCDLA. He has been a part of COVID-19 Response Task Force, Amicus, Memo Bank, Strike Force, and Nominations committees and TCDLEI Board. Like me, he must not sleep much. I was thrilled he agreed to step into this very formidable role. You will find the SDR remains very readable and very insightful. Kyle is more than capable of keeping us up to speed on significant decisions.

You will find this edition of the Voice dense with valuable insight and information as we begin to return to “normalish.” There are none better to have tested out the new frontier of Zoom trials than Jennifer Lapinski, Robert Hirschhorn, and Lisa Blue. They participated in the first two Zoom trials from jury selection through verdict. Should there be any tendency to proceed with a Zoom jury trial, this article should cause us all to put on the brakes, and to resist any effort to be put to trial via Zoom or any other electronic means. There is absolutely no benefit that will come to our client with a Zoom trial.

Ed McClees explains the difficult concept of “combinations” as related to engaging in organized criminal activity (EOCA) cases in his article “When it Takes More than Two to Tango.” We all know EOCA can be really tough, but Mr. McClees helps simplify the complexity of one of the main issues in these cases. He also reminds us to be sure to check that the predicate offense alleged in the indictment is one of the enumerated offenses listed in the statute since not every criminal offense is a qualifying predicate offense for EOCA.

Dr. John Fabian, in part one of a two-part article, provides a richly sourced article that suggests our military clients, precisely because of their traumatic experiences serving in the military, may be more predisposed to commit certain violent acts. While these experiences may not be exculpatory in most cases, it is most certainly mitigating in every single case, and now thanks to Dr. Fabian, there is supporting literature on the very topic. Let’s always be sure to fully explore the backgrounds of all of our clients, especially those who have given of themselves at one time in service to us.

Finally, my deepest appreciation and thanks to assistant editors Jeep Darnell and Clay Steadman – especially during this time – for all their work in helping edit the Voice and bring you the best product possible. As always, please let us know if you have any feedback – good, bad, or otherwise – to help improve the quality of the Voice for all our readers.

Be sure to vote, love your families, stay safe, and be well.

As we went to print, news that Justice Ruth Bader Ginsburg had died at the age of 87 filled the media. Quite simply, her legacy is unrivaled, and we would all do to heed her advice: 

“Fight for the things that you care about, but do it in a way that will lead others to join you.”
  And let’s all be sure to vote and encourage others to, as well.

Editor’s Comment: Agree to Disagree


As criminal defense attorneys, each day we strive to advocate for and protect the rights of the accused, one citizen at a time. We do not punch a timeclock or have an eight-to-five job, and our work does not slow down or stop, even in the middle of a worldwide pandemic. We worry, obsess, and overcompensate while advocating for and defending our clients, often sacrificing time with family, friends, and loved ones. It is our belief and mission that we stand between the government and our clients, defending their liberty and protecting their rights, regardless of the circumstances. We are united in our belief that every defendant has a right to be heard and their constitutional rights protected at any cost. It is this belief system, which is engrained in us as defense lawyers, which has its origin and roots in the actions and deeds of our founding fathers, that we use as our mantra every day to protect those who cannot protect themselves.

Between all our members, we obviously have differences in our opinions regarding politics, social and economic policy, and other personally held beliefs and convictions. We all have a right to express those personal opinions and beliefs, but we should be tolerant and mindful of those who disagree with us. It is a healthy debate for our democracy, to agree to disagree on issues of social and cultural policy, politics, or other personal beliefs and convictions, which we hold as individuals in a democratic society. However, from time to time, we should be reminded that, as criminal defense attorneys, there is more that binds us than divides us, as we fight the common enemy to protect and advocate on behalf of the accused.

When we rang in the New Year, welcoming in 2020 on January 1st of this year, I don’t know that any of us would have thought this is where we would find ourselves in September, amid the worst worldwide pandemic since the Spanish Flu. The ability to practice law, specifically criminal defense work, has changed dramatically in the last six months and morphed into something no one could have imagined such a short time ago. It has taken the resiliency of our criminal defense bar statewide to ensure that the rights of the accused have been and continue to be protected as we adjust to this new normal.

Then George Floyd died, and those who are alleged to have been responsible for his death have been charged and arrested. As we had commented on previously, those individuals are entitled to and will have their day in court, as should all who stand accused of criminal conduct, however detestable or abhorrent it may be. Civil unrest grew and festered as it does, but this time the result was an outpouring of protests nationwide calling for police reform and social change, which has been long overdue.

I am sure everyone has a different opinion on how and why these protests occurred, and to what degree they were peaceful or ended up being non-peaceful. However, what has happened as these events have unfolded is the issues have become polarized, both politically and socially, and when we can’t agree, we sometimes label those we disagree with on the very issues and social change we are fighting for. Labels are a dangerous thing and far too easy to throw around, especially in our new digital age where a tweet or a Facebook post can be seen and ultimately heard instantaneously. As criminal defense attorneys, we fight every day in courts throughout the nation and this state, to prevent our clients from being labeled and discarded because of that label. Just because we do not agree with one another about certain issues does not mean we cannot have a civil disagreement regarding those issues, and at no time should our disagreements result in name-calling and labeling of those who oppose our beliefs or viewpoint.

John Lewis, in his last speech to America, stated, “Ordinary people with extraordinary vision can redeem the soul of America by getting in what I call good, necessary trouble.” Ladies and gentlemen, he is speaking to us. As criminal defense attorneys, we are at the forefront of getting into good and necessary trouble and fighting for the rights of the accused, which all too frequently are threatened, often involving components of racial injustice. We are on the same team, and we can agree to disagree, but should always be courteous to our fellow brothers and sisters who are in this fight with us, and always conduct ourselves as professionals.

Given the current state of the practice of law, specifically as it concerns the criminal defense bar, it is now more important than ever that we stay TCDLA Strong, and we fight for those who cannot fight for themselves. The pandemic has not yet run its course. Racism, sexism, hatred, and bigotry are unfortunately alive and well. There are constant attacks upon our freedoms and liberty, and continuous attempts to erode the very underpinnings of our constitution and the rule of law. Rest assured there will be other hurdles ahead, but, as the largest and strongest statewide criminal defense organization in the nation, we will and must face these together.

We draw upon and from each other, and it is our collective life experiences, diverse as they are, that enable us to grow and shape our lives and careers. It is this collective experience and diversity that makes us better advocates and stronger as an organization. Let us remember who we are, and what our mission statement is, by conducting ourselves with the dignity deserving of our life’s work while being respectful of each member’s beliefs and their right to hold those beliefs. Be safe, be strong, and always fight the good fight.

This editorial column is dedicated to Sarah Roland, who has given so much time and personal sacrifice in making the Voice the great resource and publication that it is today.

Editor’s Comment: The Grim Backdrop COVID-19 is Creating


I was talking to a good friend and colleague recently about the impact of COVID-19 on our local court system and criminal defense community. We were lamenting that, on the whole, we, the criminal defense lawyers, seem to be the only moving part in the process – going to and from the jail and courthouse to facilitate pleas (even if doing pleas via Zoom). It was a role we undertook, understanding it placed us at risk, as we, and our clients, were largely the only live and in-person components of the criminal justice system. And now, as was inevitable, the jails are experiencing a rash of COVID-19 cases. The anxiety we are experiencing is real and palpable. The backdrop this pandemic is creating is just as real.

Consider the impact of this constant hum of worry on someone struggling with substance abuse, where the very “triggers” for use might well be the stress and anxiety that are now constants for all of us. The unintended hardship COVID-19 is creating in our communities, especially for those struggling with substance use disorder, is impossible to ignore: inability to attend in-person AA/NA meetings; loss of jobs; loss of housing; isolation; working in less-than-safe conditions; finding treatment facilities that are able to take new patients; and many, many more. Telehealth is an answer to many of these problems, but it’s less than ideal given the importance of face-to-face connection, physical contact with others, and the role environment all play in therapeutic communication. As we all know and have experienced at this point, there is just no substitute for face-face connection – for actual eye contact with a person rather than starring at one’s reflection and the two-dimensional faces of others on a screen. 

Make no mistake, the economic and social conditions created by the pandemic are devastating, and the collateral impact of COVID-19 on those struggling with substance use disorder is real, and places serious impediments to the recovery of some. It is well-publicized that alcohol sales were up during the shut-down and have remained above normal. What we lack, presently, is data regarding illicit drug sales and drug use. It stands to reason though that drug use and sales have risen also in response to the uncertainty.

Thousands of people die each year in the US from drug overdose in a normal (re: non-pandemic) year. Over the last two decades, the number has grown close to 600,000 people who have been lost to drug overdose. The number of overdose deaths in the US for 2018 (the most recent year for which there are statistics) exceeds 67,000, according to the CDC. COVID-19 has far eclipsed that number but will-inevitably and directly increase the number of overdose-related deaths during this pandemic. The backdrop this pandemic is creating for those struggling with substance use disorder is real, and is scary.

August 31st is International Overdose Awareness Day. The goal of IOAD is to raise awareness of overdose and reduce the stigma of overdose deaths. It also acknowledges the grief felt by family and friends remembering those who have died or had a permanent injury as a result of drug overdose. That grief is real and should not be stigmatized. IOAD spreads the message that overdose death is entirely preventable. That is worth considering again: Unlike deaths from other diseases or viruses, deaths from drug overdose are 100 percent preventable.  

Maybe we can all do our part, however small, to help prevent an overdose. Let’s pick up the phone and call that client who may be struggling – not to talk about their case but just to talk to them, to check in with them and see if there is anything we can do to help them, to let them know you care. Talk to the client who has the state jail possession charge about their substance use. We all know odds are that it’s not the first time that person has used. Know the substance abuse resources in your area. Let’s be a lifeline to that person.

Editor’s Comment: Times A-Changin’


“Is it over yet?” we keep asking ourselves and each other. “Can’t things just go back to normal?” Not hardly. As the great lyricist Bob Dylan sang in 1963, “The Times They Are A-Changin”. Amid the first (and hopefully only) pandemic that we have all experienced, we are being put to the test every day. We are trying to stay connected in the face of social distancing. We are homeschooling while simultaneously trying to keep the doors to our businesses open and dollars coming in to take care of our employees…even though the majority of the state has been under stay-at-home orders. We have all been adapting and maintaining in the best ways we know… all while trying to keep our families and ourselves healthy.

And as you know, TCDLA has been adapting, maintaining, and retooling, too. There is no better evidence of this than Rusty Duncan. While this wasn’t Rusty as it has been in years past, this year was still a success thanks to our chief executive officer, Melissa Schank, and her staff, our course directors, and our speakers. And I’m sure the same will be said about the Declaration Readings next month. Be sure to start or get involved in your local Declaration reading whether it occurs virtually or in accordance with social distancing recommendations. It is that important. Especially now, as we define for ourselves and for our clients why the work we do is essential.

A final thought. Take time for yourself to be and stay well. In addition to the regular stresses of our daily pre-pandemic practices, this is an emotionally exhausting, stressful, overwhelming time. While the doors are closed and the phones may not be ringing as much lately, the new stresses are unique and very real. So, exercise, meditate, read, knit, watch baseball (when it starts back in July) — do something for you. Self-care is vitally important. We need to take care – both physically and mentally – of ourselves first so that we can take care of our families, friends, and clients. A great place to start is TCDLA’s seminar series Mindful Mondays.

Stay safe and well,


P.S. – And this month, again for the safety of our staff, members, and postal service workers, we are publishing the Voice online. We know the overwhelming majority of our readers prefer to have the hard copy of the Voice and it is our hope to return to that very soon. In the meantime, if you’d still like a hard copy, please let us know so that we can get it to you.

We are all in this pandemic together as humans and as criminal defense lawyers, but we each have our own unique experiences both personally and professionally. As courthouses across the state begin to reopen, please consider sharing your experience – whether uplifting, heart wrenching, or anything in between – with us. We are compiling stories of criminal defense lawyers from around the state to share in the upcoming issue this summer. Send submissions to .

Editor’s Comment: Defending the Indefensible


There’s a lot going on in our world. As an American, I can’t help but think about, worry about, and be saddened by what is going on. What happened to George Floyd is wrong, and the officers should be held accountable for their conduct. But, as a criminal defense lawyer, the idea of circumventing due process to hold those officers accountable, as seems to be the rallying cry of many, is also scary and terribly worrisome.

In the Boston Massacre Trial of 1770, then-future president John Adams defended eight British soldiers who had killed five Bostonians. The killings were publicly and collectively termed the “Boston Massacre” within days after they had occurred. The five Bostonians killed quickly became martyrs for the Patriot cause. To describe Adams’ defense as unpopular would be a massive understatement. That his business would have taken a tremendous hit because of his defense of the eight British soldiers is a given. But he did it. Due to Adams’ defense work, Captain Preston, whom the prosecution argued gave the order to fire, was acquitted. And, when the trials of the remaining British soldiers were finally over, only two were convicted – and of the lesser offense of manslaughter, at that.

How and why did Adams defend the British soldiers? He did it for the same reasons we defend the indefensible case: because we, as criminal defense lawyers, hold an unshakeable belief in our justice system.

Several years later, the Declaration of Independence was adopted by the Continental Congress on July 4, 1776. That was followed by the US Constitution which was ratified on June 21, 1788.

Fast forward nearly 250 years, to the killing of George Floyd. Mr. Floyd’s death has been followed by days (and sure to be weeks) of protest — many peaceful but some riotous. It can be unsettling and uncomfortable, and it should be. Injustices are inhumane.

But, we also realize as criminal defense lawyers who believe in our Constitution, that just as surely as protestors have a right to speak out, so too, do the Minnesota police officers have a right to fair trials with zealous representation unclouded by personal judgment. It doesn’t mean we condone the conduct in any way; quite the opposite. It doesn’t mean we want to see the officers escape accountability for their actions; they should be held accountable for their conduct. It just means to keep the integrity in our justice system – a system designed to protect the innocent – we must have trials where the defense is just as vigorous as the defense mounted on behalf of the British soldiers by John Adams. Our justice system fails when there is a laydown, railroad job – from any side.

It takes a special kind of person – it takes a criminal defense lawyer – to fight for our Constitution, be a zealous advocate, and defend the truly indefensible cases. It takes a special kind of lawyer to be able to not let personal feelings interfere with their representation. There are some cases some of us choose not to take because we recognize our objectivity may be or become compromised, and that’s ok. We are all human.

We will all defend the unpopular, hated client at some point during our careers. We have all been asked (at least a dozen times) “how do you defend someone you know is guilty?” And we all know, and believe to our very core, the answer to that question. We believe in and protect our Constitution. That is just what great defense lawyers like John Adams do. They stare into the abyss and march forward giving it their all to protect our justice system for all of us.


Please be a part of the Declaration Readings happening in your area this Independence Day.

Sarah Roland

Clay Steadman
Associate Editor

Jeep Darnell
Associate Editor

Melissa Schank
Executive Director

Editor’s Comment: All Hands On Deck


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


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


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

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


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!


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


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


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