Who Can See My Criminal Record?

June 1, 2011

By Collin and Dallas County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Criminal records are generated different ways.  What you have to remember is that when you get arrested, you are cycling through a public system where information is (to varying degrees) open to the public.

Your “official” criminal records are kept by the FBI and the Texas Department of Public Safety.  The FBI runs the NCIC (National Crime Information Center) and DPS runs the TCIC (Texas Crime Information Center).  Only specifically authorized personnel are allowed to view information in these databases and it is not readily accessible to the public.  In fact, the illegal dissemination of information of the NCIC or TCIC is a class b misdemeanor in Texas.

When a private citizen or company is looking at your criminal record, what they are really looking at is information a third-party vendor has purchased or acquired directly from county, state or city court system.  Under the Gramm-Leach-Bliley Act of 1999, users must justify their queries and have a legitimate purpose for conducting background research on websites of the public data forums.  As you might guess, the categories are somewhat broad — so if you’re applying for a job or for credit then it’s safe to assume your background may be legally checked.

Non-disclosures and expunctions are ways in Texas that criminal records can be mitigated.  An expunction under Tex.Code.Crim.P. Chapter 55 is an extremely powerful right which authorizes the actual destruction of the information surrounding the arrest.  You can read more about expunctions here.

A non-disclosure under the government code chapter 481 can help in limiting the persons who can have access to an arrest record.  Generally, only governmental agencies will have access to criminal records.  You can read more about non-disclosures here.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any particular issue, you should consult an attorney directly.

 


New Photo-Lineup Bill May Become Texas Law

March 25, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

The Texas legislature is considering measures to give force all law enforcement agencies conducting photo-lineups to have uniform standards and uniform procedures.

This article summarizes the problem and the situation.  Texas has had an atrocious record of wrongful convictions, and the statute is designed at eliminating one of the root causes — photo lineups that are not done correctly.  Experts agree that often the person administering the photo lineup can consciously or subconsciously influence the witness.

The measure will not entirely invalidate photo-lineups that don’t comply, however.  As long as the lineup “substantially complies” with state law, it will still be legal.  This clause takes a lot of bite out of the law, but it’s a step in the right direction none-the-less.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice pertaining to any legal matter you should consult an attorney directly.


Collin County Deferred Prosecution Program — Update (1/31/11)

January 31, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Many changes have and are taking effect under new Criminal District Attorney Greg Willis.

Amongst those changes are changes to Collin County’s Deferred Prosecution Program.  That program was originally instituted by former District Attorney John R. Roach, Sr. and allowed youthful “offenders” the opportunity to avoid having their cases be filed formally in exchange for a less-formal probation under the supervision of the Collin County Community Supervision department (probation).

There were many complaints about how Mr. Roach’s administration ran the program.  For example, there were formal guidelines set in place that were inflexible and could be somewhat arbitrary.  For example, people were refused entry into the program because they did not reply within the narrow time frame given to them regardless of the reason.

Also, the method in which people were contacted was suspect.  First, the person would receive direct notification of the program via an unsigned letter bearing the letter-head of the probation department.  The letter would invite the offender and his/her parents to come and confess to the crime — and that they would then be considered for admission into Deferred Prosecution Program (the letters did not come from the DA’s office).  Lawyers in Texas cannot directly contact persons they know to be represented by counsel in opposing matters.

The new Collin County DA’s policy towards the Deferred Prosecution Program takes a far more common-sense approach.  It appears as though they are evaluating the program on a case-by-case basis and they are willing to review cases submitted to them for review.  It’s guesswork at this point as to how exactly the old-guidelines will play into the new decision making, but the Defense lawyer community is hopeful that the program will be more fair and available to people deserving a second chance.

Obviously, the DA’s office has to draw the line somewhere with allowing people into the Deferred Prosecution Program — which means that not everyone will get what they want.  At least everyone will be heard.  And that’s a huge change.

Ask your lawyer about the Deferred Prosecution Program in Collin County if you think it’s an option for your case or your child’s case.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice for any specific situation, you should directly consult with an attorney.


Theft of Service

January 23, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Theft of service is a criminal charge where the alleged victim accuses someone of stealing services instead of actual property.  An example may include where someone hires a contractor to build something that he never intends to pay for.  Also, it is a law used by rental companies to charge people with theft if they don’t return the rented property.  It is controlled by Texas Penal Code 31.04(a) and says in relevant part:

“A person commits theft of service if, with intent to avoid payment for service that he knows is provided only for compensation:

“(1)  he intentionally or knowingly secures performance of the service by deception, threat, or false token;

“(2)  having control over the disposition of services of another to which he is not entitled, he intentionally or knowingly diverts the other’s services to his own benefit or to the benefit of another not entitled to them;

“(3)  having control of personal property under a written rental agreement, he holds the property beyond the expiration of the rental period without the effective consent of the owner of the property, thereby depriving the owner of the property of its use in further rentals; or

“(4)  he intentionally or knowingly secures the performance of the service by agreeing to provide compensation and, after the service is rendered, fails to make payment after receiving notice demanding payment.

The punishment levels for theft of service are the same as for normal theft charges.  This is to say that the level of offense is governed by the dollar amount alleged to have been stolen.

Theft of service is generally much harder to prove than a normal theft charge.  This is because there often isn’t a clear distinction between a bad business deal and fraud.  The key is the “intent” element.  The state must prove beyond all reasonable doubt that the accused planned to steal the services all along.  This can be extremely difficult because often the motive for someone not paying a bill lacks criminal culpability.

The second part of the statute in 31.04 creates presumptions that the court can use to instruct the jury that a person is presumed to have stolen in certain circumstances.  An example of this is where an accused fails to make payment within 10 days of receiving notice from the victim to make payment.  The presumption, though, is rebuttable and the jury does not have to accept it as true.

Theft of service — like theft — is a very serious charge.  Though to criminalize a deal gone bad may seem easy to deal with — you should get a lawyer regardless!

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any specific situation you should contact an attorney directly.

 


Proposed DWI Deferred Will Only Feel Better for 1st Timers

January 18, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

The 2011 Texas Legislature has a bill before it that would give 1st time DWI offenders the opportunity to get Deferred Adjudication according to this Dallas Morning News article. What can a first-time DWI arrestee expect in this bill crafted by Texas Prosecutors and MADD in exchange for pleading guilty?  Not much.

Remember, Deferred is where someone pleads guilty but the Court defers the finding of guilt while the person completes probation.  If the person completes probation successfully, then the charges are “dismissed” without a final conviction ever being attained.  I put the term dismissed in quotes because even though that’s the term used by the statute, the legislature gave it a special definition that most people speaking English would derive from it’s use — it’s really only a document confirming probation is over.

When someone completes deferred and their case is “dismissed,” then the person’s arrest record, court records, and probation records stay completely in tact and are routinely sold to private companies for public uses on job search applications, housing applications, or loan applications (etc.).  Only when someone applies for a petition for non-disclosure two years after the “dismissal” AND a Judge determines it is in the best interests of justice can the person’s file not be sold by the State.  But law enforcement, of course, gets to keep it and share it with practically any other entity that is affiliated with the State such as school boards and professional licensing agencies.

And according to the Dallas Morning News Article, the DWI Deferred proposal has even less benefit than a normal deferred.  For this program, if you plead guilty and get deferred it counts as a conviction for the purposes of enhancement.  Also there seems to be no other lessening of punishment in any way as far as interlock devices or sur-charges.

Prosecutors and MADD miss the point with this deferred proposal.  The reason deferred would help clear the dockets is that it would give an accused something to actually lose by contesting the charges.  About the only benefit with this proposed law is that someone can say they’ve never been convicted of DWI.  I guess that’s something, but it doesn’t do much more than make someone feel a little less guilty if they accept responsibility for a DWI that they’re guilty of.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.