William B. Mange

Second, once he has demonstrated substantial experience in criminal law, he must take a rigorous examination on all aspects of criminal law, in both State and Federal courts.

For more information on what it means to be Board Certified in Criminal Law, you can visit www.tbls.org.

2. What does a lawyer have to do to become a Member of the College of the Texas State Bar?

A lawyer only has to attend a certain number of hours of continuing legal education courses and pay the fee to join the College.

They don’t have to pass tests.

They are not graded on the material they see.

In some hotels where continuing legal education courses are held, the attendees can watch the speakers presentations by closed circuit TV via their hotel room televisions.

For more information on what it means to be a member of the College of the Texas State Bar, you can visit www.texasbarcollege.com.

3. How do I get someone out of jail?

First, call a lawyer. In Travis County, the personal bond system may allow the accused to be released on his own recognizance. The only fee he pays is $20.00 to the Pre-Trial Services Office.

Sometimes the accused needs to have a lawyer to qualify for a personal recognizance ("PR") bond.

4. If I learn there is a warrant out for my arrest, what should I do?

Call a lawyer. Tell him about the warrant and ask him to arrange for a “walk-through.”

If you ask a lawyer to arrange a “walk-through” for you, the lawyer will arrange with the police to let you surrender yourself to the booking desk of the county jail. Your lawyer will arrange in advance either a personal recognizance bond or a bondsman to satisfy the bond. In some counties, Travis being a good example, the process takes up to 45 minutes and the client is never actually placed in jail. In other counties, such as Williamson, the client will be booked into jail but will be released in a few hours when the booking process has been completed.

Whether a “walk through” can be arranged depends on several factors including which county it is in, the nature of the offense charged, and the appropriateness of the client for bond.

5. I’ve talked to some lawyers and they say they will write a surety bond to get my son out of jail. Do you write surety bonds for clients?

No. I don’t write them because I personally perceive that they present, at a minimum, an appearance of a conflict of interest. Please read the answer to the next question for an explanation of what I mean.

6. My son didn’t qualify for a personal bond so his lawyer wrote a surety bond. Later my son decided that he didn’t want him for his lawyer and told him that. Then his lawyer threatened to “get off” the bond and implied that my son would be thrown in jail again. Can he do that?

This situation is a classic example of the term “appearance of a conflict of interest.”

When you hire a criminal lawyer, you need to be completely and totally confident that what you tell him will remain a secret, unless you tell him that it’s OK to reveal it.

The law allows a bail bondsman to ask a judge to let him “get off” or “motion off” a bond at any time when he has reason to believe that the accused will fail to show up for court.

The law also allows lawyers to write surety bonds for their clients. When a lawyer writes a surety bond, I perceive that he is wearing two “hats.” One hat is as the lawyer, the other hat is as the bail bondsman.

The appearance of a conflict of interest arises this way: if you tell your lawyer something, believing that it is an absolute secret between you, but your lawyer while wearing his “bail bondsman hat” believes that what you have told him is a reason to believe that you won’t show up for court, and so asks the judge to let him surrender you, then you might feel like your lawyer did something against your interest that benefitted him.

7. What are the different types of bonds to get someone out of jail? What are the advantages and disadvantages of each different type?

Question	PR Bond	Cash Deposit Bond	Surety Bond	Cash Bond
How much does this cost?	$20.00	Usually 10% of the amount of the bond. For example, if the bond amount is $5,000, you would pay $500.	Anywhere from 10% to 20% of the amount of the bond. For example, if the bond amount is $5,000, and the bondsman’s fee is 20%, then you pay $1,000.	The entire amount of the bond. So if the bond amount is $5,000, then you pay $5,000.
What are the advantages to these types of bonds?	It’s cheap. If you don’t have much criminal history, then you can get out fairly quickly.	The $500 that you pay in the above example would not only go to get your loved one out of jail, it also goes to help pay the lawyer’s fee. You can “kill two birds with one stone.”	When the accused can’t get out on a PR bond or a cash deposit bond, this is the cheapest way for him to be released.	You don’t pay a fee. You get almost all of the entire amount of money back once the case is over-with.
What are the dis-advantages to this kind of bond?	The accused can be required, as a condition of the bond, to take classes, get counseling, and so on. Those classes can be expensive and will take time. There is usually at least a $65 evaluation fee. The types of counseling can include, for example: alcohol, family violence, anger management, and stress management. Other conditions that can be imposed are: electronic monitoring, weekly supervision meetings, and having an interlock device installed in your car (in DWI cases).	You can still be required to do all of the types of counseling that can be required with a personal bond.	It is one of the most expensive ways to get out of jail, and the bondsman can ask the judge to have you re-arrested in some cases.	It is hard to come up with that much cash so quickly, if at all.

8. How long will it take for a criminal case to end?

No one can answer this question generally.

Many people ask this question because they feel anxious to get the case behind them.

But the prosecutor doesn’t give you a better deal just because you helped him out by pleading guilty quickly.

I want the best result for you, which is not necessarily the quickest.

Your criminal case will impact you for the rest of your life. If you aren’t so sure your criminal case is all that serious, talk to anyone who has a criminal conviction or probation on his record. Ask whether that record has made finding work, a loan, or admission into college harder.

Handling some criminal cases the right way can require a lot of time. Each case is different, but even some relatively small cases take time to properly prepare and win.

How long a case lasts will depend on the type of charge, how the judge runs his docket, the prosecutor, whether the case is in state or federal court, whether the accused is in jail, and how complicated the case is.

If you or someone you love is being investigated, consider hiring a lawyer very soon. This is especially important when you are investigated by the federal government.

9. Do I need an investigator?

That depends. The police report often doesn’t tell the whole story. When they investigate, and when they write reports, police officers frequently try to anticipate what the prosecutor will need to prove his case. They certainly aren’t concentrating on providing the defense with what we need.

Sometimes you will know who the witnesses are. And sometimes I can only find witnesses with the help of an investigator.

No matter whether you decide to go to trial or just want aggressive negotiation, your odds of getting a better result improve a lot if someone has investigated the facts with your point of view in mind.

You and I can talk over whether hiring an investigator is a good idea in your case.

Talk about the investigation costs with your lawyer. Your contract with your lawyer should spell out who is responsible for paying the investigator’s fees and how they are to be paid.

10. What if I’m unhappy with my lawyer’s performance?

Tell him. Say what you see as the problem. Just because you can fire your lawyer doesn’t necessarily mean you will be happier with the next one, or get a better result.

11. Does it matter if I’m not a U.S. citizen?

Yes.

Depending on the charge, the immigration consequences can sometimes be far worse than the criminal law consequences. If you are charged with an assault family violence case or any felony, you could be deported, denied naturalization, or if you leave the United States you might be denied readmission to the U.S., even if you have “greencard” (permanent legal resident) status.

12. Who decides whether my case will go to trial?

You do. Anyone accused of a crime in Texas has the right to try his case to a jury. But most criminal cases are not resolved by trial. Most are settled through plea bargaining with the prosecutor after each side has had a chance to look into the case and research legal issues.

13. Will I get a jury trial if the State moves to revoke my probation?

No. Once you have been placed on probation, you have no right to demand a jury trial if the State moves to revoke your probation.

14. Can I have my criminal record expunged?

That depends. If your case was tried and you were found not guilty, the answer is “yes.”

If your misdemeanor case resulted in a dismissal or an acquittal or if your felony case resulted in a dismissal prior to indictment or an acquittal, you may go through a procedure in court to remove the record of the arrest and prosecution from your record. There are some exceptions to this general statement. Also, if you received deferred adjudication on some felony and misdemeanor offenses, the law allows you to have those records sealed from public access. Some misdemeanors require a waiting period of years from the end of the period of deferred adjudication. Felonies require a ten-year wait. Again, there are some exceptions to these general rules. You should contact a lawyer to determine if you are eligible for the above procedures.

15. Can I ask the judge to dismiss my case because the evidence is weak?

No. Judges generally cannot dismiss a criminal case before trial because he believes the evidence is weak.

16. What’s the difference between a deferred adjudication and a regular probation?

A deferred adjudication probation is most easily explained when discussing a serious offense, such as a first degree felony. The full range of punishment for a first-degree felony is confinement in prison for anywhere from five years to 99 years or life, and up to a $10,000 fine.

When someone is placed on a deferred adjudication probation, he faces the full range of punishment if his probation is revoked. This is one of the main differences between a deferred adjudication probation and a regular probation. A person placed on probation for 10 years on a first-degree felony, if revoked, could receive the maximum of 10 years, whereas in contrast, a person who was placed on deferred adjudication on a first degree felony could receive a sentence of life or 99 years in prison if revoked. You might ask yourself: why in the world with anyone want that kind of probation?

Here is the answer: with a deferred adjudication probation, you are not “technically” convicted. This is because the judge does not specifically find that you are guilty of the offense. Rather, the judge merely finds that there is sufficient evidence upon which a finding of guilt could be made.

If this sounds like splitting hairs, then you are understanding it perfectly.

There is a lot of bad information going around about how getting a deferred adjudication means that the offense will somehow be taken off your record. That is not true. But to make my answer truly complete, and a little more complicated, I need to tell you about orders of non-disclosure.

17. What is an order of non-disclosure?

Certain people who successfully complete a deferred adjudication probation in a case such as yours can petition the court for an order of nondisclosure so that private businesses cannot learn about this case after the court has ordered the clerk of the court and other governmental agencies not to release that information. An order of nondisclosure does not mean that your record has been erased. Governmental agencies can still find it. If you were arrested again, then the police and the prosecutor could find out about your case with absolutely no trouble.

Appeals FAQ

18. How much time do I have to file my appeal?

The short answer is: 30 days after a judgment against you has been filed.

The appellate process begins with the filing of a Notice of Appeal. If the Notice of Appeal is not timely, you may lose your right to appeal. In state cases, (except in some Municipal or Justice of the Peace proceedings) the notice of appeal must be filed within 30 days of the sentencing date unless a Motion for a New Trial has been timely filed. If a Motion for New Trial has been filed, the Notice of Appeal must be within 90 days of the sentencing. In federal cases the Notice of Appeal must generally be filed within 10 days. Note: These deadlines are extremely important. You should contact your attorney immediately if you are contemplating an appeal. You should not rely on your own calculations of the deadline for filing a Notice of Appeal. It is important that your attorney have as much time as possible to prepare the appeal. The Notice of Appeal is just the first step in the process.

19. Will I be able to remain on bond during the appeal if sentenced to a term on incarceration?

It depends on the offense for which you were convicted and the sentenced you received. In state cases, conviction for certain serious offenses (mainly those involving violence or sexual conduct with children) disqualifies the defendant for bond pending appeal. In other offenses the defendant is eligible for bond pending appeal if the sentence is less than 10 years. Otherwise, the defendant will be in custody while the appeal is pending.

20. What happens if I win my appeal?

That depends on what exactly the court of appeals decided.

If the appellate court concluded that the evidence was legally insufficient to support the conviction, an acquittal will be ordered. If the appellate court concluded that evidence was improperly admitted or excluded, or other procedural errors were made at your trial, and the court further concludes that it was not harmless, the case will be returned to the trial court for a new trial. The prosecution has the option of either going forward again with the case or dismissing it. If the appellate court has ruled that evidence critical to the prosecution’s case cannot be used at a subsequent trial, the prosecution may have no choice but to dismiss the case or risk a certain verdict of acquittal.

21. Does an appellate court hear witnesses testify?

No. An appellate court rules in a case after reading the transcript of the trial and the arguments written by the attorneys. The attorneys’ written arguments point out where the lawyers think the judge made mistakes.

22. How long does an appeal take?

The time varies greatly. An appeal may take from about 8 or 9 months to several years, depending on the complexity of the case and the particular court or courts to which the appeal is taken.

23. Which court will hear my appeal?

In Texas, cases prosecuted by the state are appealed first to the Court of Appeal for the area in which the case was tried. For instance, cases tried in Austin are usually appealed to the Third Court of Appeals in Austin. The losing party before the Court of Appeals has the right to petition the Texas Court of Criminal Appeals to review the lower court’s decision. The Court of Criminal Appeals has the discretion to hear or refuse to hear a case. In cases involving the death penalty, the appeal is taken directly to the Court of Criminal Appeals. In that instance, the Court of Criminal Appeals must review the case. Federal appeals in Texas are heard by the United States Court of Appeals for the Fifth Circuit, based in New Orleans. Under certain circumstances appeals may be taken from state courts to the United States Supreme Court. Appeals may also be taken from a Federal Appeals Court to the United States Supreme Court. Only a small number of appeals to the United States Supreme Court are actually accepted by the court for review.

FEDERAL FAQ

24. What is the difference between a federal and state crime?

A federal crime is a violation of a statute passed by the United States Congress. A state crime is a violation of a statute or ordinance passed by the state legislature or a local authority. Usually the crime addresses criminal activity on a more national concern. Although, in recent decades the federal government has become increasingly involved in prosecuting drug and violent crimes, areas once almost exclusively to the states. Many crimes are prosecutable in both state and federal courts.

Who investigates and prosecutes federal crimes?

For the most part, federal criminal offenses are investigated by agents of federal agencies such as DEA, ATF, Secret Service and others. Occasionally, state law enforcement officers work in conjunction with federal agencies. Federal crimes are usually prosecuted by the United States Attorney’s Office for the district where the crime occurred. Sometimes a prosecutor for the United States Department of Justice, or an agency such as the Environmental Protection Agency will participate in a federal prosecution.

If I am charged with or under investigation for a federal offense do I need a “federal” criminal defense lawyer?

In order for a lawyer to represent you in a federal criminal matter he or she must be licensed to practice in the federal court where the case is pending or must receive permission of the court to practice there on a one time basis. Additionally, the federal criminal justice system is drastically different than the state system. It is important that your lawyer have experience in federal court so that he or she can effectively represent you.

25. What are the federal Sentencing Guidelines?

In federal court, if a defendant is found guilty or pleads guilty, the judge assesses punishment in accordance with Sentencing Guidelines. The United States Sentencing Guidelines manual contains rules for determining the range within which a judge’s sentence must fall. Factors that go onto the determination include the offense for which the defendant was convicted; certain factors about the case such as how much money was involved in a financial crime, the role of the defendant in the overall crime and other factors concerning the defendant’s conduct; and the defendant’s criminal record. The court will sentence within the applicable guideline range (expressed in a range of months) unless the case is extremely unusual or qualifies for one of the few exceptions allowing the judge to depart from the guidelines. Guideline sentencing is a complicated aspect of federal criminal cases. It is important that a person accused of a federal offense retain an attorney that is familiar with the guideline system.

26. If I am under investigation for a federal offense but have not been charged, what should I do?

Contact an attorney immediately. You have important rights during the investigation that should be protected. How you proceed at this stage may drastically affect the ultimate outcome of the case.

None of the information here should be substituted for an actual consultation with an attorney.