Driving While Intoxicated (DWI) & Driving Under the Influence (DUI)

The consequences of a DWI arrest are serious, and a conviction for the offenses can be devastating, - both personally and financially. A recent article in the Austin American Statesman estimated that the cost of a first DWI arrest and conviction can be as high as $15,000.00. After arrest this includes bail, towing, and legal fees. If convicted, the expenses can include probation, fine, counseling, occupational driver’s license, increased insurance, and a three year annual government surcharge of $1000.00 - $2000.00 to maintain your driving privileges. In addition, you could be required to perform community service or spend time in jail.

Many of my colleagues advertise and would insist that you not take a breath test when offered by the arresting officer. I do not agree that one answer fits all circumstances. For instance, if you have (truly) had only one or two drinks, the intoxilyzer machine could be your best friend - testing under the legal limit would be an extremely important factor in your defense. That said, I am not a big fan or believer in the accuracy of the State’s machine. If you have had more than two regular drinks over a two to three hour period than you might be wise to decline the test. Some of that depends on your size, and factors such as food intake and metabolism. Additionally, the breath tests are usually administered about an hour after you have been stopped. Depending on when you had your last drink this could skew the results in the State’s favor.

There is no universal advice to give you for dealing with the police in a roadside alcohol related encounter. If you are a gymnast, acrobat or ballerina, you may be able to pass the States’ made - to - fail field sobriety tests. For the rest of us, taking these tests can be a big mistake. Personally, I suffer from numerous sport related injuries and couldn’t pass these tests on my best day. (Please never tell an officer that you “couldn’t pass these tests if I was sober”). There are so many factors here I cannot list them all, but here are a few : Are you tired: wearing the wrong shoes, i.e. flip flops, crocs, or high heels (doing the tests barefoot is generally a mistake); is the terrain level and free of debris; is it cold; or hot; are you the nervous type? In many cases it is best to refuse to do these tests and take your chances in Court with a well trained advocate.

In almost every DWI case there is a video recording of the events leading up to an arrest. The cameras are designed to come on automatically when the officer’s overhead (or in the grill) lights are activated. This tape is usually available to counsel in the month following the arrest. The tape is the most objective evidence in a DWI prosecution. Remember to always take the high road, be polite, and do not talk too much. Exhibiting common sense goes a long way in helping convince a Jury you were not intoxicated.

DWI Court in Travis County

This is an alternative to receiving a sentence from the Court, or Jury for a second or subsequent DWI charge that occurs within two (2) years of the initial charge. The terms or conditions are more intensive than a regular DWI second probation, however, the program can be completed in one (1) year, and there is no jail time to serve, or community service to perform. After an attorney has evaluated the case, and it is determined that the case will not be tried or reduced, this is a good option.

The DWI cases cannot involve victims (i.e. from accidents), or be connected to another pending case (i.e. possession of contraband). The applicant cannot have a significant, or violent criminal history.

Participants accepted into the program are assessed a one time $500.00 program fee. In addition, participants will be assessed a co-payment for treatment based on ability to pay. The program lasts for a minimum of twelve (12) months, and includes:

• Outpatient group counseling three (3) times a week, for three (3) to six (6) months.

• Individual counseling every two (2) weeks.

• Six (6) months aftercare.

• Judicial Oversight.

• Case management by probation officer.

• Alcohol/drug testing.

Williamson County has a DWI court as well with a similar program.

Driving Under the Influence (DUI)

Driving Under the Influence in Texas is a Class C misdemeanor that carries with it a maximum fine of $500, but no jail time. However, a person ticketed for DUI will most likely go to jail because the officer cannot let the person continue to drive. This charge is specifically for people under 21 years of age who have any detectable amount of alcohol on their breath. This does not mean that a person under 21 cannot be charged with Driving While Intoxicated, a Class B misdemeanor, if the arresting officer believes the person to be intoxicated.

Administrative License Revocation (ALR) Hearing

This is a separate hearing/ procedure to challenge the driver license suspension that comes with a breath/blood test failure or refusal. You must make a request for this hearing within fifteen (15) days after your arrest. You can do this by following the directions on the notice you receive when you are released from jail. If you hire an attorney prior to the fifteenth day after your arrest, he or she can make the request on your behalf. If you do not request the hearing in a timely manner, your driving privilege will be automatically suspended on the fortieth day after your arrest. For first time offenders the suspension period is 90 days for a sample failure and 180 days for a sample refusal. The suspensions are longer for repeat offenders. In either case, with some qualifications, you can obtain an essential needs driver license, also called an Occupational Driver License, to conduct your important affairs.

Possession of Marijuana (POM):

Marijuana, cannabis, pot, weed, herb, or any other name you may have for it, is illegal to possess in Texas. Possession of any amount up to 2 ounces is a Class B misdemeanor, between 2-4 ounces is a Class A misdemeanor, 4 ounces to 5 pounds is a State Jail Felony, 5 pounds to 50 pounds is a Third Degree Felony, 50 pounds to 2000 pounds is a second degree, and more than 2000 pounds is a First Degree Felony. Also, a conviction for Possession will automatically suspend a person’s driver’s license for 180 days. The suspension will be lifted after 180 days if the defendant completes a State approved15 hour Drug Offender Education Program during the 180 days.

When it comes to possession of marijuana cases in Central Texas the outcome, as with every case, depends on what county you are in and whether or not you have prior arrests. Even though it is illegal and you may have been caught red handed that does not mean that you have come away with a conviction. Prosecutors and judges understand the consequences associated with a conviction for having a personal amount of marijuana and thus in many cases defendants can take a class and/or do some community service to get their case dismissed. Many counties offer Pretrial Diversion type programs that require the defendant to complete a short probation and if successful the case will be dismissed and you can get the case immediately expunged. Of course if your case has any legal defense to prosecution such as an illegal search, illegal arrest, or an illegal detention than Mykal will expose the illegality at a pretrial hearing to get your case dismissed.

Possession of a Controlled Substance (POCS)

Possession of a controlled substance is a little more complicated due the fact that Texas Controlled Substances Act (found in the Health and Safety Code 481.102) has several different penalty groups depending on the substance and the amount. Certain pills like Xanax are penalized as a Class A misdemeanor until the quantity exceeds 28 grams. It is also important to note that the penalty range is based on weight of the substance and not the number of pills. Possession of substances like Oxycodone, Cocaine, Methamphetamine, Heroin, and Hashish are going to be felonies regardless of the quantity. However, the weight of the illegal substance will determine the level of offense. Generally, an amount under 1 gram will be a State Jail Felony, 1 gram up to 4 grams will be a Third Degree Felony, 4 grams up to 200 grams will be a Second Degree Felony, and an amount of 200 grams or more will result in a First Degree Felony charge.

Additionally, depending on the facts of your case the State can charge you with a higher degree for distribution, manufacturing, and possessing drugs in a drug free zone. The drug free zone enhancement can also lead to mandatory stacked sentences and longer jail sentences before being eligible for parole.

Possession of Drug Paraphernalia (PDP)

Possession of drug paraphernalia is a Class C misdemeanor that carries with it a $500 fine for a conviction. A conviction for this charge can result in a 180 day driver’s license suspension.

Drug Diversion Court AKA The S.H.O.R.T. Program

S.H.O.R.T. is the acronym for a System of Healthy Options for Release and Treatment. This is an excellent alternative to being prosecuted for those who qualify. The program provides the user (not dealers) with treatment and counseling, not the stigma of a felony drug prosecution.

S.H.O.R.T. puts into action the long overdue response that drug addiction is a disease that should be treated, not punished. The mission statement of S.H.O.R.T. reads:

The mission of the Travis County SHORT Program is to slow the revolving prison door for drug offenders, reduce drug use and criminality and promote effective treatment programs in which the client is treated with dignity rather than treated as a criminal.The treatment consists of three fairly intensive phases. Each participant is assigned a Primary Counselor to assist with successful completion of each phase. There are an array of treatment approaches (e.g. acudetox, cognitive skills training, support groups, employment and vacation referrals) available for addressing specific needs. The program can be completed in one (1) year. You do not need a lawyer to get into S.H.O.R.T.- so no legal fees, although there is a $1,00000 fee due upon acceptance. For more information contact the S.H.O.R.T. program at 854-4200

A criminal case, either a misdemeanor or a felony, is resolved by a dismissal of the charges, an entry of a plea of guilty or no contest, or a verdict (of not guilty or guilty) after the Defendant has plead not guilty and proceeded to a trial of the case by the court or jury. A jury must reach a unanimous verdict (12 of 12 in a felony, or 6 of 6 in a misdemeanor) or the case can be retried at a later date. This is often referred to as a ‘hung jury’.

1. Felonies: In Texas, felonies, the most serious of charges, are broken down into five different categories: capital murder, first degree felony, second degree felony, third degree felony and state jail felony, sometimes called a fourth degree felony.

Clearly, Capital Murder is the most serious charge a Defendant can face, since it carries the potential for a sentence of death or life in prison. This charge is reserved for specific fact situations enumerated by statute, such as Murder of a child under the age of 6, Murder of more than one person, Murder during the commission of other felony offenses, etc.

First degree felonies carry a sentence of five years to 99 years, or life in prison, and/or a $10,000 fine. First degree offenses include Aggravated Assault on a Peace Officer, Aggravated Sexual Assault of a Child, Murder, Possession of more than 200 grams of certain Controlled Substance, and Aggravated Kidnapping. The maximum term of probation on first, second and third degree felonies is 10 years. In addition, in certain categories of offenses, such as Aggravated Robberies, and Aggravated Assaults, only a jury - and not a judge - can grant probation for the Defendant. In some sexual offenses involving children, even a jury cannot give probation.

A conviction for certain aggravated offenses also means that the Defendant will not be eligible for release on parole until he has served one-half of his prison sentence. In other cases, the Defendant can become eligible for release on parole when the time served, plus credits, equals one-quarter of the original sentence.

Second degree felonies, such as Burglary of a Habitation, Sexual Assault of a Child, Intoxication Manslaughter, Aggravated Assault, etc., carry a possible term of two years to 20 years in the penitentiary, and a fine up to $10,000.

Third degree felonies, such as Burglary of a Building, Indecency with a Child by Exposure, Assault causing Serious Bodily Injury, Failure to Register as a Sex Offender, and third or subsequent DWI’s carry a term of two to 10 years, and a maximum fine of $5,000.

State jail felonies include offenses such as Possession of a small amount (less than one gram) of certain Controlled Substances, Interference with Child Custody and Unauthorized Use of a Motor Vehicle, have a maximum term of two years in a state jail facility, and a maximum fine of up to $10,000.

The District Court system has rules that are more rigidly enforced than in the misdemeanor courts. Because the stakes are so much higher, (death penalty, prison time, long probations), the proceedings are more formal. Punctuality, appearance and respect for the court are a must.

2. Misdemeanors: In Texas, misdemeanor offenses are broken down into two systems: the “higher charges,” Class A and Class B, and the lower, Class C offenses.

Class A misdemeanor offenses, which are heard in the County Courts-at-Law, have a maximum sentence of up to one year in county jail and a fine not to exceed $4,000. Class A offenses include Assaults with Bodily Injury or Assault involving Family Violence, second DWIs, Criminal Mischief or Theft of Property with a value of $500 to $1,500, and Burglary of a Vehicle.

Class B misdemeanors, which carry a penalty of up to 180 days in jail and/or a fine of up to $2,000, include Criminal Mischief or Theft of $50 to $500, first DWI's, Driving While License Suspended, etc. Class B misdemeanors are also heard in County Courts-at-Law.

Class C misdemeanors carry a penalty of fine only and include traffic; offenses, Public Intoxication, Minors in Possession of Alcohol, Disorderly Conduct offenses such as Fighting, Unreasonable Noise, etc. These cases are heard either in Municipal Court (if the offense was alleged to have occurred in the city limits) or in the Justice of the Peace courts (if the offense was alleged to have occurred outside the city limits).

3. Probation: Whether the Defendant is charged with a misdemeanor or a felony, many first-time offenders in Travis County can expect to be offered probation. The maximum term of probation for felonies is 10 years.

The maximum term of probation for Class A and B misdemeanor is two years. Because Class C misdemeanors are fine only offenses, there is no probation, although a Defendant may enter into a deferred prosecution or deferred disposition agreement, which generally call for the individual to remain trouble free, without supervision, from 90 days to one year.

There also are two types of probation offered in the State of Texas: regular probation, which entails the entry of a judgment of guilt against the defendant, and Deferred Adjudication, which means that the judgment of guilt is deferred and the Defendant is placed on probation. Under a Deferred Adjudication, if the Defendant successfully completes his term of probation, no conviction is entered on his or her record. In these types of cases, the Defendant can say that he was not convicted of the offense. However, there still will be a public record of his arrest and of the proceedings against him, including the fact that he was placed on probation.

Other ways to dispose of misdemeanor cases include Pre-Trial Diversion, a program run by the County Attorney’s Office, or Deferred Disposition or Deferred Prosecution. Under these arrangements, the Defendant usually admits the bad act and does some combination of paying a fee, undergoing counseling, taking an educational class, performing community service, and staying out of trouble for a certain period of time. At the end of the deferral period, the case is closed. In most of these instances the records of the arrest and prosecution can be expunged.

Almost every person arrested in Travis County is interviewed by Pre Trial Services for consideration of a personal bond. If the Defendant does not have an extensive criminal history, the bond amount is not too high and the offense charged is not too serious, and the defendant is not on probation, the Defendant might qualify for a personal bond. Other factors include how long the Defendant has lived in Travis County and the impression he or she makes on the bond officer who does the interview. If the charge is Assault, Pretrial Services almost always requires the alleged victim to sign a statement indicating that he or she is not afraid of the Defendant, and is not opposed to his/her release from jail.

If the Defendant is allowed a personal bond through Pre Trial Services, no attorney or bail bondsman is required for the Defendant’s release. However, an attorney can speed up the process considerably. Generally, the Defendant will be released from two to four hours after the personal bond is posted. Quite often, Pretrial Services, and ultimately, the judge, will impose conditions for the release of the Defendant, such as a drug or alcohol assessment, counseling, staying away from the victim (assault cases), supervision or an ignition interlock device (second or subsequent DWIs). There is a $20 fee paid to the couinty for each personal bond granted - more if the case is a DWI second or subsequent and an ignition interlock is required.

In addition to expunctions, a Defendant who was placed on Deferred Adjudication probation may be eligible to have his arrest and court records sealed from the public. This relatively new law allows a judge to order public entities to withhold information about a Defendant under certain circumstances, although it does allow law enforcement agencies to retrieve records on such charges/offenses. One nice provision of the new law is that you can prevent private web sites from disseminating your information once you have your record sealed and notify them of the same. Certain offenses, for example murder, aggravated kidnaping, sexual assaults, assault with family violence, injury to a child, and stalking, are excluded from the sealing statue. Additionally, there is a two year waiting period from the last day of probation or incarceration for most misdemeanors and a similar five year waiting period for felonies. Some misdemeanors have no waiting period, such as Possession of Marijuana, Theft, Driving with Licence Expired and Criminal Trespass.

In addition to expunctions, a Defendant who was placed on Deferred Adjudication probation may be eligible to have his arrest and court records sealed from the public. This relatively new law allows a judge to order public entities to withhold information about a Defendant under certain circumstances, although it does allow law enforcement agencies to retrieve records on such charges/offenses. One nice provision of the new law is that you can prevent private web sites from disseminating your information once you have your record sealed and notify them of the same. Certain offenses, for example murder, aggravated kidnaping, sexual assaults, assault with family violence, injury to a child, and stalking, are excluded from the sealing statue. Additionally, there is a two year waiting period from the last day of probation or incarceration for most misdemeanors and a similar five year waiting period for felonies. Some misdemeanors have no waiting period, such as Possession of Marijuana, Theft, Driving with Licence Expired and Criminal Trespass.

Although some new criminal cases make their way to a judge for issuance of a warrant, the vast majority of arrests on warrants are for bond forfeitures or probation revocations. However, on occasion, law enforcement agencies will get a case where a warrantless arrest is not possible. In many instances, such as sexual assault, embezzlement, assaults where the Defendant has left the scene before the police arrive, or drug distribution cases, the investigating agency must marshall enough evidence to convince a judge that an offense has occurred. Under these circumstances, the agency will generate an affidavit for a warrant of arrest and detention, present the paperwork to a judge, and secure issuance of a warrant for the Defendant.

First degree felonies carry a sentence of five years to 99 years, or life in prison, and/or a $10,000 fine. First degree offenses include Aggravated Assault on a Peace Officer, Aggravated Sexual Assault of a Child, Murder, Possession of more than 200 grams of certain Controlled Substance, and Aggravated Kidnapping. The maximum term of probation on first, second and third degree felonies is 10 years. In addition, in certain categories of offenses, such as Aggravated Robberies, and Aggravated Assaults, only a jury - and not a judge - can grant probation for the Defendant. In some sexual offenses involving children, even a jury cannot give probation.

A conviction for certain aggravated offenses also means that the Defendant will not be eligible for release on parole until he has served one-half of his prison sentence. In other cases, the Defendant can become eligible for release on parole when the time served, plus credits, equals one-quarter of the original sentence.

Second degree felonies, such as Burglary of a Habitation, Sexual Assault of a Child, Intoxication Manslaughter, Aggravated Assault, etc., carry a possible term of two years to 20 years in the penitentiary, and a fine up to $10,000.

Third degree felonies, such as Burglary of a Building, Indecency with a Child by Exposure, Assault causing Serious Bodily Injury, Failure to Register as a Sex Offender, and third or subsequent DWI’s carry a term of two to 10 years, and a maximum fine of $5,000.

The jail release is the beginning of many attorney-client relationships. Mykal and his staff are fast and efficient in getting people released from jail. The jail release process is different in Travis County than most surrounding counties. Travis County has 24 hour magistration while smaller counties such as Williamson, Hays, Comal, and Bastrop Counties have magistration once a day in the morning. There are few instances in Williamson and Hays County where a person will be released on their own recognizance, also referred to as a Personal Bond, but it is rare and only for a handful of misdemeanor offenses.

Travis County Pretrial Services interviews everyone arrested to determine if they are eligible for a personal bond except for those with Bond Forfeitures, out of county charges, and on cases where Pretrial Services has previously filed to motion off the bond. If a defendant is eligible and ultimately granted a Personal Bond it could still take 12 hours for the person to be released. If you hire Mykal he can expedite the process by waiving magistration so that the defendant does not have to wait and see the judge. Further, Mykal can interview the defendant and bring the bond to the Magistrate much faster than Pretrial Services can process and approve the bond for your friend or loved one. In the case of Assault with Bodily Injury involving Family Violence Pretrial Services and the Judge are both going to want to get input from the complaining witness before considering the approval or granting of a Personal Bond. In each case where the defendant is eligible for a Personal Bond a pretrial duty officer will try and make contact with a reference to try and verify the defendant’s address, length of time at that address, phone number, occupation, whether you (as the reference) believe the defendant will return to court for each court date, whether you think the defendant has used drugs including marijuana in the last 6 months, whether you think the defendant needs or will benefit from counseling (the type depends on the offense and the references response), and a few other questions depending on the offense. To get more information you can find anyone in Travis, Williamson, Hays, Bastrop, and Comal County Jail through my Resources page.

In the evenings and weekends there are attorneys on call to assist you in securing the release of your friend or loved one.

In Travis County, there are four ways to get a Defendant out of jail. These are:

1. Personal Bond. Almost every person arrested in Travis County is interviewed by Pre Trial Services for consideration of a personal bond. If the Defendant does not have an extensive criminal history, the bond amount is not too high and the offense charged is not too serious, and the defendant is not on probation, the Defendant might qualify for a personal bond. Other factors include how long the Defendant has lived in Travis County and the impression he or she makes on the bond officer who does the interview. If the charge is Assault, Pretrial Services almost always requires the alleged victim to sign a statement indicating that he or she is not afraid of the Defendant, and is not opposed to his/her release from jail.

If the Defendant is allowed a personal bond through Pre Trial Services, no attorney or bail bondsman is required for the Defendant’s release. However, an attorney can speed up the process considerably. Generally, the Defendant will be released from two to four hours after the personal bond is posted. Quite often, Pretrial Services, and ultimately, the judge, will impose conditions for the release of the Defendant, such as a drug or alcohol assessment, counseling, staying away from the victim (assault cases), supervision or an ignition interlock device (second or subsequent DWIs). There is a $20 fee paid to the couinty for each personal bond granted - more if the case is a DWI second or subsequent and an ignition interlock is required.

It is important to note that the person released is responsible to follow up on his or her court date, which is stated on the bond. Failure to do so could result in a bond forfeiture and a warrant being issued for the accused. Additionally, the Defendant will be responsible to the county for the actual amount of the bond. Thirty days after the entry of a bond forfeiture, the county normally files a civil lawsuit against the Defendant to recover the face value of the bond plus court costs and filing fees.

Of course, once counsel is hired, the attorney will make all necessary appearances and inform the client when his appearance is necessary.

In some cases, Pretrial Services will deny personal bond unless an attorney becomes involved in the case. Typically, this happens when the Defendant’s residence is in question, he lives out of the county, when the charge is especially serious, when the bond amount is over $10,000.00, when the Defendant is already out on a bond, when the Defendant has a lengthy criminal history, or his personal information cannot be verified.

In other instances, such as when multiple charges are pending, when the Defendant is already on probation or parole, or when an attorney is attempting to do a “walk-through” (see below), Pretrial Services will simply run a criminal history check on the Defendant and make no recommendation on the bond.

When Pretrial Services does not make a recommendation or denies a personal bond, the attorney still can approach a judge/magistrate and plead the client’s case for a personal bond.

2. Cash Deposit Bond. Travis is one of only two counties in Texas that allow attorneys to post cash deposit (percentage) bonds. These types of bonds are usually used in more serious cases or in bond forfeiture cases. In reality, the cash deposit bond is a personal bond that is partially collateralized. As a general rule, the attorney is required to post 10 percent of the total bond amount, although from time to time the percentage will be 15 or even 20 percent. Only attorneys are allowed to post these types of bonds. In many cases, fees collected for the release above 10 percent of the bond amount will be deducted from the retainer/legal fee for the case itself.

3. Surety Bond. Surety bonds are usually posted by bail bond companies licensed to do business in Travis County. Under a surety bond, the Defendant, as principal, and the bondsman as guarantor, contract with the county to either have the Defendant show up for court or, if the client does not timely appear, to pay the county the full amount of the bond. In some instances, such as high bond amounts, or if the Defendant has a history of not showing up in court, the bondsman will require collateral, a promissory note or a third-party guarantor to back up the bond, and to protect the bondsman from a forfeiture.

4. Cash Bond. To post this type of bond, a money order or cashier’s check for the exact amount is required. Despite the name, Travis County no longer accepts cash. You can either have an attorney post the bond (and get the Defendant to fill out the cash bond form) or you can take the money order to the Bonding Desk at the Blackwell/Thurman Criminal Justice Center. The jail staff will have the Defendant sign the proper forms. It is faster to do this through an attorney, however there is a charge for such a service (slightly higher if the Defendant is housed at Del Valle).

If you post the cash bond yourself, there is no additional charge other than the $15 service fee collected by the Sheriff’s Office on all surety or cash bonds. After the case is resolved, the money is returned to the Defendant. It is important to note that the Treasurer’s Office is required by state law to return the money to the Defendant, no matter who posts the cash. The Defendant’s interest in the money can be legally assigned to the person who posts the cash or to an attorney as part of a fee arrangement. The Treasurer’s office takes a nominal amount of the proceeds to process the transaction of returning the funds.

Warrantless Arrests: Approximately 90 percent of all arrests made in Travis County are warrantless, that is, a peace officer determines that probable cause exists to arrest a Defendant based on his own observations or on observations related to him by another person. When a person is detained/arrested under these circumstances, he or she is usually taken to the Travis County Jail Booking Desk, where the Defendant is held until formal charges are filed and bail is set. For information about the charges, status of the Defendant and/or bond amounts, call Central Booking at (512) 854-9889.

Most charges are filed soon after the arrest, and the Defendant is taken before a magistrate to be informed of the charges against him, the amount of his bond, the right to remain silent and the right to counsel, appointed if necessary.

On occasion, the police will delay the filing of a charge, which effectively prevents the individual from getting out of jail. Although the U.S. Supreme Court has ruled that the police can hold an individual for up to 72 hours without formally charging him, the general rule in Travis County is that the jail will release a Defendant if charges are not filed within 48 hours, 24 hours for lesser misdemeanors.

The Hobby Rule: Unfortunately, this avenue of escape from the Travis County metal motel is no longer available since our county went to a 24 hour magistration system.

Arrests on Warrants

1. New Charges: Although some new criminal cases make their way to a judge for issuance of a warrant, the vast majority of arrests on warrants are for bond forfeitures or probation revocations. However, on occasion, law enforcement agencies will get a case where a warrantless arrest is not possible. In many instances, such as sexual assault, embezzlement, assaults where the Defendant has left the scene before the police arrive, or drug distribution cases, the investigating agency must marshall enough evidence to convince a judge that an offense has occurred. Under these circumstances, the agency will generate an affidavit for a warrant of arrest and detention, present the paperwork to a judge, and secure issuance of a warrant for the Defendant.

In many cases, if the Defendant believes a warrant might be in the works, our office will run regular warrant checks. Oftentimes, we can arrange for the Defendant to turn himself in. This can save the client a significant amount of jail time, not to mention the advantages of not having to worry about being arrested in the middle of the night, in front of family or friends, at work, or having a vehicle impounded after being stopped for a traffic violation.

This usually comes about by checking with the various law enforcement agencies, or by contacting the officer or detail who is getting the warrant, arranging bond paperwork in advance, then turning the Defendant in to the jail to be processed and released.

2. Probation Warrants: If the Defendant is on misdemeanor probation and fails to comply with his probation terms, e.g. commits another offense, has a positive UA for drugs or alcohol, misses probation meetings, etc., the Community Supervision and Corrections Department (Probation Department) may issue a violation notice, which then goes to the County Attorney’s Office for a Motion to Revoke Probation. (If the Defendant is on a Deferred Adjudication probation, a Motion to Proceed to an Adjudication of Guilt will be filed.) As a general rule, the judge will set a bond when the warrant is issued or, in some cases, the judge will issue a summons to appear before the Court.

It is an unwritten rule that an attorney attempting to secure the release of a Defendant charged with a probation violation must go to the judge who put the Defendant on probation. In many probation cases, if the allegations in the Violation Notice are not too serious, or if the Defendant doesn’t have multiple prior motions to revoke, the judge will allow his release on a cash deposit bond. In a few instances, if the Defendant has not yet been arrested, the judge might recall the warrant and have a summons issued instead.

If the Defendant knows beforehand that a probation warrant is about to be issued, a “walk-through” may be arranged. In these cases, the attorney would have the bond paperwork completed and signed by the judge in advance, allowing the bond to be posted when the Defendant turns himself in. This shortens the amount of time the Defendant spends in jail. A court date is set soon thereafter.

In District Court (felony) probation cases, the warrant is generally issued without a bond. That means that an attorney must approach the judge who has jurisdiction over the case to ask that a bond amount be set and to request that the judge approve a bond. The judge is not required, by law, to set a bond on probation arrests, unless the Defendant is on a Deferred Adjudication probation. Once again, if the Defendant knows a warrant is to be issued, it is possible, in certain cases, to get a bond set and approved to allow the Defendant to do a walk-through.

3. Bond Forfeitures: If the Defendant fails to go to County Court on a Class A or B misdemeanor, the judge usually forfeits the bond, increases the amount of the bond and issues a warrant for the Defendant’s arrest. Typically, the judge also will order that only a cash or surety bond may be posted. (See sections on bonds.) If the Defendant is arrested during the day, there is often a chance that the judge will allow the posting of a cash security bond if the Defendant does not have a history of bond forfeitures or a lengthy criminal history. However, the attorney must go to the judge of the court where the bond forfeiture occurred. If the arrest occurs at night, the only way to get the Defendant out of jail is to have a bond company or attorney post a surety bond, or to have a friend or relative post the entire bond in cash (money orders or cashiers checks only).

If a felony Defendant fails to attend court, the District Attorney could file a felony Bail Jumping charge. This is unlikely where only one court date is missed and the Defendant through counsel quickly gets his case back on the docket in good standing. Bail jumping (Tx. Penal Code, Sec. 38.10) is a third-degree felony (two to 10 years in prison, and/or a $10,000 fine). It is not a difficult case for the state to prove if the Defendant abandons a felony case for a long period of time.

Typically, in felony bond forfeiture cases, the warrant is issued without a bond amount set. As a general rule, the Defendant will have to get an attorney to talk to the judge who has jurisdiction over the case and ask him or her, first, to set a bond amount and, second, to sign a bond to post for the Defendant’s release.

4. Bond Forfeiture Civil Suits: Defendants who forfeit their bonds not only face a warrant and (usually) at least some time in jail, they also face a civil suit to recover the amount of the bond forfeited. As a general rule, the County Attorney’s Office will file a civil suit against the Defendant (and surety) 45 days after the bond forfeiture is entered.

A civil suit can be avoided if the bond forfeiture is set aside within 30 days of its issuance. However, if the forfeiture is not set aside, the County Attorney’s Office will file the civil suit and start the clock ticking for settlement of the suit. Typically, the fees for settling a civil bond forfeiture lawsuit are the costs of filing the suit, the State's attorney fees, and, in most cases, 5 percent per month of the amount of the bond. These fees are in addition to the cost of hiring your own attorney to handle the settlement.