Will My Probation Get Revoked?

October 20, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Legally you could be revoked for showing up late to probation – but that’s obviously an extreme and unlikely scenario.  There are countless variables which go into whether or not your probations revoked – so each case is truly unique.

Those variables can be things like the nature of the underlying offense?  How severe is the new infraction?  Have there been other infractions?  Is the probation officer understanding about your situation?  Are they lazy?  Are they a jerk?  Passive?  Controlling?  What does your county typically do with similar cases and infractions?  The list goes on and on and on.

I get plenty of calls asking me this exact question… will I be revoked?  I understand the anxiety and uncertainty of the position the probationer is in and I really do my best to try and handicap each situation.  But each situation is very different.  Here are some general guideposts, though:

Is the Probation Violation a New Offense or Crime?

If you’ve been arrested again for a new charge your probation officer probably doesn’t have much say in whether or not a motion to revoke or motion to adjudicate is filed.  Those are likely to be dictated by office policy and your PO’s hands are usually tied.

If you do get arrested for something new – and you don’t get revoked – count yourself lucky.

Every probation plan or order I’ve ever seen requires a person to notify their officer upon a new arrest.  So it’s normally a separate probation violation not to disclose it.

“Technical” Violations of Probation

We typically refer to issues such as failure to do community service or take classes as “technical” violations.  Whether your probation is revoked based on a “technical” violation is up to your probation officer.  Failure to pay fines and money fits into a bit of a different legal category – so I’m not including that here.

It really is impossible to quantify what each individual probation officer would do in any county in Texas in any given scenario.  If you’re on probation for drugs or DWI and you’ve done 90 out of 100 hours of community service – I like your odds of not being revoked more than if you’re on probation for a violent crime and have done 0 out of 100 hours of community service.

I also like your odds of not being revoked on a “technical” violation more if you’ve never been in trouble with your PO before than if your PO has already given you 5 warnings about the same thing.

Positive Drug Tests

This is a very common trigger for a revocation or adjudication.  My experience is it takes more than one – but this is an area where each county is different.  The main reason a single positive UA probably won’t get you revoked is your PO has a lot of options at their disposal to remedy or punish short of full-blown revocation.  It could include a jail sanction, additional classes, or even them asking you to extend your probation.

But Here’s What Experience Teaches Me — At Least in Collin County

It never hurts to be on your probation officer’s “nice” list and not “naughty” list.

Being a probation officer is a very tough job as much as I might criticize them.  Most are over-worked and under paid.  They are like you and I.  I’m guessing it’s easy for them to deal with most people on their case load — and then they have some they deal with regularly who aren’t very pleasant to work with at all.

I don’t think many probation officers show up to work looking to screw people.  The fact is they have enough headaches on their case load without inventing more.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is a Texas Super Lawyer as designated by Thomson Reuters.

 


How Should I Answer Questions on a Job Application if I’ve Been Arrested?

October 14, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

It’s heartbreaking for me to hear current clients and folks who’d gone through some rough patches before be extremely excited about a potential job opportunity only to have the opportunity repeatedly crumble at the last minute over and over.

My Approach To Answering “How Should I Answer the Arrest Question”

First – I advise my clients they usually don’t have a duty to answer questions which aren’t asked depending on the job they’re applying for.  Many folks think they get brownie points for disclosing things they might not have to disclose – and in a perfect world this would be true.  My experience is the opposite, though.

It’s really important to read the question being asked, answer that question, and not answer questions which aren’t being asked.  It’s my experience many employers (and their lawyers) sometimes draft imprecise or clunky questions about previous arrests.  These are questions which might allow you to answer the questions honestly yet not require you to disclose your situation.

Remember your potential employer will also probably do a background check on you too.  You don’t want to get ‘too cute’ answering a question about your criminal history only to have the potential employer not hire you anyway.

Expunctions and Non-Disclosures are the best way to solve these problems.  An expunction allows you to deny the entire situation occurred in the vast majority of situations and a non-disclosure hides the affair from the public.

Quick Texas Guide to Background Check Questions

Have I Been Convicted?

Situations where the answer is “No”

  • If you were on deferred adjudication and successfully completed Deferred successfully for a felony or misdemeanor
  • If you are currently on deferred adjudication community supervision for either a felony or a misdemeanor
  • If your case is currently pending and you have yet to enter a plea
  • If you are waiting for your case to go to trial
  • If you went to trial and were found “not guilty”
  • If your case was dismissed for any reason

Situations where the answer is “Yes”

  • If you have ever plead guilty to a Federal offense
  • If you’ve gone to TDC or State Jail
  • If the judge found you guilty even if you were on probation

Have I Been Charged with an Offense?

“Charged” is a tricky word in these contexts.  What concerns me about the wording is I worry some may not agree with my interpretation or might not really understand what this term means.

To me, you are not “charged” with an offense unless or until the prosecuting authority (normally a District Attorney’s Office) files either an information against you in a misdemeanor or an indictment against you in a felony.

But we often hear on television or read in the newspaper someone was “arrested and charged with…..”  That’s usually not an accurate statement because normally the indictment or information follow an arrest weeks or months later.

So I do worry about folks who answer a background check question they have not been “charged” with an offense greater than a traffic ticket but who have been arrested – because the prospective employer might not understand the difference.

Overriding Advice

I always tell my clients – current and former – please call me with any questions about how to answer a specific question.

*Jeremy Rosenthal is board certified in Criminal Law by the Texas Board of Legal Specialization.  He is a Texas Super Lawyer as designated by Thomson Reuters.  Nothing in this article should be considered legal advice.


What is the Difference Between a Flat Fee and a Retainer When Hiring a Lawyer?

October 10, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefenselawyer.com

(972) 369-0577

This is a common question.

Remember a lawyer is selling their time.  Both a flat fee and retainer are different ways the lawyer sells that time.  These are actually topics of much debate in the legal community and are a bit more complex than meets the eye.

Abraham Lincoln said the legal fee is important because “It lets the client know he’s got a lawyer and the lawyer know he’s got a client.”

Important Reasons Which Go Into a Fee Amount 

A lawyer’s time is not an unlimited resource and some lawyers are justified in charging more for their time than others based on complexity of the matter and that lawyer’s experience.

Also, when a lawyer accepts your case – the lawyer is also limiting themselves because the lawyer now can’t sell time to (1) a different paying client because there are only so many hours in a day or (2) other potential clients he or she cannot legally represent because they would be conflicted from representing by virtue of their representation of you.

Flat Fees

A flat fee sounds a bit more self-explanatory than a retainer but there are still restrictions and issues with lawyers charging flat fees.

The advantage of the flat fee is it is clear-cut and caps the client’s potential financial output.  The disadvantage is the client could over-pay if the case is more resolved more quickly than anticipated.

Flat fees must still be justifiable at the end of the day.  Common sense still applies.  Where a client pays a lawyer gobs of money on day one and the client terminates representation on day two – the lawyer simply cannot justify keeping anything other than the amount he’s actually earned, if any.

Retainers

A retainer is money paid to the lawyer which the lawyer sets aside in a trust account.  The money legally remains the client’s property unless or until the lawyer earns it.  Once they earn it, they can then draw it from the account.

If the lawyer does not earn all of the money you deposited in trust then the client is entitled to a refund of the unused retainer.

The upside of a retainer is obvious.  The downside of a retainer is once the retainer has been expended, it typically needs to be refilled.

I compare a retainer to a tank of gas.  Sometimes it takes a half a tank to get to the destination but sometimes it could take 3 tanks.

Is A Flat Fee Better or is a Retainer Better?

It depends on the case in my mind.  You don’t want your lawyer to be paid too much and believe it or not — you really don’t want them to be paid to little either.

In a criminal defense practice there are many cases we handle very routinely where our time is predictable and as the lawyer, we’re willing to take the risk on a flat fee because we know from experience the amount of time we’ll be spending on a certain case falls in within an acceptable range.  Those tend to be misdemeanors like DWI, domestic assault, or theft cases to name a few.

Retainers are a flexible way to handle cases where our time output will be a bit more difficult to predict.  Those would typically be cases like sexual assault, felony drug possession, or white collar charges such as embezzlement or money laundering.  A retainer also assists when we need to pay other client expenses such as investigators or expert witnesses which we’ll need to involve from time to time depending on the case.

The retainer, then, is a good way of making sure the fee is just right on more complex cases where a flat fee may just be far too high or far too low.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is Designated as a Texas Super Lawyer by Thomson Reuters.


Police are Getting Theft Warrants for Shoplifting During the COVID Pandemic

October 6, 2020

By Criminal Defense Attorney Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

There are currently a glut of warrants for theft in Collin County from shoplifting cases.

Why?  Because during the beginning of the pandemic, police did not want to take folks to jail for shoplifting.  Police were under marching orders to keep the jail clear and police were like anyone else who didn’t want to ride with a stranger in a car for 20 minutes if they didn’t have to.

You can check Collin County Warrants here.  The warrant page says all warrants may not be visible to the public.  If a warrant is not visible it’s typically because of some organized crime ring where they round up the entire group at once.  Shoplifting theft cases don’t fit this profile.

Why Are They Getting Warrants Months and Months Later?

People are required to go to jail in most criminal cases – even if it’s just to book in then out.  The reason is simple — if criminal court were voluntary, no one would come.  The law doesn’t allow people to be prosecuted in absentia so that means the courts have to have some way to compel you to come.  They make you come to court by holding the threat of jail over your head.

Because they didn’t take someone to jail in the first place in March, April, or May – they now have to do it in September or October.

 

How are They Doing This?

Police are asking judges to sign arrest warrants based on probable cause affidavits.  All a probable cause affidavit lays out is the “probable cause” for the charge.  The judge then signs the warrant which allows police to arrest a person.  Criminal charges come later in this scenario.

Another way arrest warrants are triggered is where the District Attorney’s office files the actual criminal charges.

Are They Going to Come and Get Me if I Have a Shoplifting Warrant?

Legally they can but they might not.  They may not have the resources to resolve this glut of cases and they may just be satisfied for folks to either turn themselves in or for the warrant to sit dormant until someone gets pulled over at some point in the future.

A person with an active arrest warrant should always do their best to promptly resolve the warrant by turning themselves in, however.  Not only is it required by law but as I tell clients by turning yourself in with a plan to bond – you are in control and can minimize how long you’re in jail.  I tell clients an arrest will happen at the worst and most inconvenient time if they don’t resolve it promptly (like when you’re on a big date or on your way to your kids soccer game).

Most warrants like this already have a bond amount set in advance so you might not even have to wait for a judge.  Also, most shoplifting cases don’t particularly carry bond amounts which are extraordinarily high.  There is a good chance you are in and out of jail regardless of your financial condition.

Does This Make My Case Worse?

No.  The prosecutor will ultimately file charges and the vast majority of shoplifting cases are misdemeanors.  They carry a range of options which allow for expunctions or ways to get your record cleared.  I’ve handled so many theft cases I can’t count them all.  I can safely say how the person was apprehended never makes a difference in the case – unless, of course there was a fight or something like that.

There is an excellent chance of getting theft off your record depending on your personal history and the facts of the case through an expunction or non-disclosure.

*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Super Lawyer by Thomson Reuters.  Jeremy is a senior partner at Rosenthal, Kalabus & Therrian, PLLC.  www.texasdefensefirm.com.


The 5 Most Common Questions I get as a Criminal Defense Lawyer: #1 “Am I Going to Jail?”

March 12, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Most people vastly over-estimate their jail possibilities.  I spend a good deal of time explaining why things are nearly as bad they may seem.

Our minds tend to link together what I call “the chain of terribles.”  That is we take one terrible result, and infer another logical awful result, and then another and another and another.  But this is almost never realistic.

Let me give you an example — at the time I write this blog, the Coronavirus is exploding across the world.  The NBA just suspended their regular season.  Part of my mind wants to suggest the world economy will crash (the dow is down 20% from a month ago), my law practice will go down the tubes with the economy, there will be widespread disease and then famine, the NBA will never play again, and the survivors of the virus will have to barricade themselves from zombies in makeshift houses.

That is the chain of terribles.  But I’m guessing if you read this even 6 months from now, you’ll see how ridiculous my conclusions were.

The same thing happens when people consider jail.  They’ve typically already been arrested and have bonded out — and they want to know “will it happen again?”  A perfectly understandable and valid question.  Those fears are often fueled by lawyers and their webpages trying to scare you into hiring them.

Jail exposure is obviously on a case-by-case basis which includes tons of variables such as the nature of the charge, mitigating factors, what county is prosecuting the charge, criminal history, the specific prosecutor, judge, etcetera, etcetera, etc…

Understand a handful of factors which, in general, reduce inmate population.

  • Running a jail is money-losing proposition.  It is a hotel where no one pays.  Most counties don’t want to feed you and house you if they don’t have to.
  • Most judges and prosectors believe in rehabilitation.  Very few will stop someone from getting help they need to manage substance issues which frequently contribute.
  • There is a much better understanding of anxiety, depression, and other maladies which can contribute to someone’s predicament.
  • Finally — it’s your lawyers job to effectively tell your story — and everyone typically has a good one.

Bottom line: If you’re like everyone else – then you’ve probably exaggerated your own jail chances.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  He is Board Certified by the Texas Board of Legal Specialization in Criminal law.  Nothing in this article is intended to be legal advice.