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Texas Criminal Law & Legal
Frequently Asked Questions
I. How can I find and hire the right
lawyer?
Why might I need a lawyer?
How do I find a lawyer?
Do lawyers specialize?
How will I know which lawyer is best for
me?
Should I hire a lawyer?
Why is it important to have a written
fee agreement?
What should be in the fee agreement?
What do I need to do to have a
successful client-lawyer team?
When should I see a lawyer?
II. What should I know when I am
arrested?
What
is an arrest?
What rights do I have?
Once I am told my rights, can I be
questioned?
Who can arrest me?
Who maintains arrest records, and what
do they include?
When is an arrest warrant used?
When can I be released?
III. Bail and release.
What is
bail, and how is it set?
IV. Search and Arraignment.
What
happens at an arraignment?
When can an officer conduct a search?
When can an officer search you, your
home or your car without a warrant?
V. DWI & BWI
What if
you are charged with a D.W.I./B.W.I.?
I. How can I find and hire the right lawyer?
WHY MIGHT I NEED A LAWYER?
Legal advice is like medicine: You can take some to cure
problems and some to prevent them. If you are accused of
committing a crime, a Felony, or Class A or B misdemeanors, you
need legal advice. The punishment range for some of such crimes
is as follows:
PUNISHMENT RANGES and GENERAL PENALTIES
A. OFFENSE - FELONIES
Capital Felony
Life or Death
FIRST-DEGREE FELONY
Life or 5-99 years in prison and optional fine not to exceed
$10,000
SECOND-DEGREE FELONY
2-20 years in prison and optional fine not to exceed $10,000
THIRD-DEGREE FELONY
2-10 years in prison and optional fine not to exceed $10,000
STATE JAIL FELONY
180 days - 2 years in State Jail and optional fine not to exceed
$10,000
B. OFFENSE -MISDEMEANOR
Class A Misdemeanor
Fine not to exceed $4,000 and/or 1 year or less in jail
Class B Misdemeanor
Fine not to exceed $2,000 and/or 180 days or less in jail
Class C Misdemeanor
Fine not to exceed $500
Sometimes you can add to your problems by failing
to call a lawyer immediately. If you are arrested witnesses
should be interviewed and evidence gathered as soon as possible.
You should contact a lawyer immediately. Preventive legal advice
often can save you time, trouble and money by preventing
problems from getting started.
HOW DO I FIND A LAWYER?
Recommendations. Maybe you know a lawyer. Lawyers can refer you to
other lawyers who have experience with your kind of problem.
Ask your friends, co-workers and employers if they
know any lawyers. Business people or professionals such as
bankers, ministers, doctors, social workers and teachers may be
able to give you a lawyer’s name.
If you are accused of committing a crime and
cannot afford a lawyer, you may qualify for free legal help. A
judge may appoint a private attorney to represent you without
charge if you qualify for such assistance.
DO LAWYERS SPECIALIZE?
A Board Certified attorney is an attorney who has demonstrated
special competence in a particular field in which the Texas
Board of Legal Specialization has certified their competence.
Gilbert G. Garcia
Attorney at Law
Board Certified Criminal Law
Texas Board of Legal Specialization
Over 24 Years of Criminal Defense Trial Experience
The Texas Board of Legal Specialization was
created by the Supreme Court of Texas, and the Board members are
appointed by the President of the State Bar of Texas. The Board,
in turn, administers the program through which an attorney may
demonstrate their special competence in a particular area of law
practice.
A lawyer who is Board Certified in Criminal Law
must have experience in the trial of serious criminal matters
and the preparation of such cases for trial. They must have
extensive knowledge of state and federal constitutional law,
evidence, procedure, and penal laws involved in the trial of
criminal cases.
The requirements for an attorney to receive Board
Certification in Criminal Law include:
• Handling a wide variety of criminal matters to demonstrate
experience and involvement.
• Attending criminal law continuing legal education seminars
regularly to keep their legal training up to date.
• Being evaluated by fellow lawyers and judge.
• Passing a day-long written examination.
Certification is for a period of 5 years. To
remain certified after that time, every 5 years the attorney
must apply for re-certification and meet the requirements for
continued experience, peer review, and continuing legal
education.
HOW WILL I
KNOW WHICH LAWYER IS BEST FOR ME?
You may want to meet briefly with the lawyer or a professional
staff member instead of discussing your problem on the
telephone.
At such a meeting you may want to ask how much
experience the lawyer has had with problems like yours, and how
recently the attorney handled a similar case.
We suggest hiring a lawyer who primarily practices
law in the jurisdiction where your case is located and has an
office in the area.
SHOULD I HIRE THE LAWYER?
That depends on how you feel after your meeting with the lawyer
and his staff. When meeting with the lawyer bring the names,
addresses, and telephone numbers of everyone connected with your
case. You also should bring all papers involved in your case,
such as any documents you received from governmental source.
Ask to hear about cases like yours that the lawyer
may have handled.
You should know that most lawsuits and other legal
work are not “sure things.” You should be very cautious of an
attorney who guarantees results. However, a lawyer should be
able to tell you the strengths and weaknesses of your case.
Ask yourself the following questions:
• Will you be comfortable working closely with the
lawyer?
• Do you believe the lawyer has the experience and skill level
to handle your case?
• Do you understand the lawyer’s explanation of what your case
involves?
• Does the fee seem reasonable?
WHY IS IT IMPORTANT TO
HAVE A WRITTEN FEE AGREEMENT?
No matter what the amount, no one likes to pay legal fees.
Therefore, it is important for you and your lawyer to agree, in
writing, about what you will pay the lawyer and what services
the lawyer will perform. This way, both of you will know what to
expect from each other as you work together on your case. Fee
agreements should be in writing.
WHAT SHOULD BE IN THE
FEE AGREEMENT?
Your written fee agreement should set out the services the lawyer
will perform for you, and the type and amount of fees you will
be expected to pay. The agreement should also say how costs -
the other expenses of your case - will be handled and explain
the lawyer’s billing practices. The agreement should also say if
the lawyer is going to add interest or other charges to unpaid
amounts.
A fee agreement may also include your obligations
as a client. For instance, you may need to agree to be truthful,
to cooperate, to abide by the agreement and to pay your bills on
time. You make a fee agreement in the same way that you would
make an agreement with a contractor or other businessperson.
Tell the lawyer what services you will want, and ask questions
to find out what the charges will be. You may want to ask a
friend or relative to come with you if you are not sure what to
ask.
Some suggested questions:
• How will the lawyer bill for his or her time?
• Who else will be working on the case - associate lawyer, legal
assistant, paralegal?
• How will that time be billed?
• What can be done to reduce fees and costs?
• What is the lawyer’s estimate of the total charges?
We strongly suggest not hiring a lawyer without a
written Fee Agreement.
WHAT DO I NEED TO DO
TO HAVE A SUCCESSFUL LAWYER-CLIENT TEAM?
The answer to this is simple and straightforward:
Be sure that you and your lawyer have the same goals.
Be sure you understand and are comfortable with
the lawyer’s working style.
Be especially certain that you have a clear picture of the
expected timetable of your case - when you can expect
significant developments.
Be sure you provide the lawyer with the
information and documents necessary to understand your case.
Be sure you understand and agree with the lawyer’s
billing practices.
Be sure if you have questions or concerns about
your legal matter, you express them to the lawyer and listen to
the responses.
WHEN SHOULD I SEE A
LAWYER?
If you are arrested for a crime, you should contact a lawyer as
soon as possible. He or she has a better sense of what you
should and should not say to law enforcement officers to avoid
being misinterpreted or misunderstood. The lawyer also can
advise you or your family or friends on the bail process.
II. What Should I Know If I Am Arrested?
WHAT IS AN ARREST?
When you are arrested, you are taken into custody. This means
that you are not free to leave the scene. However, without being
arrested, you still could be detained or held for questioning
for a short time if a police officer or other person believes
you may be involved in a crime. For example, an officer may
detain you if you are carrying a large box near a recent
burglary site. Storekeepers also can detain you if they
reasonably suspect you have stolen something. Whether you are
arrested or detained, you do not have to answer any questions
except to give your name and address and show some
identification if requested.
WHAT RIGHTS DO I
HAVE?
You have certain rights if you are arrested.
Before the law enforcement officer questions you, he or she
should tell you that:
You have the right to remain silent.
Anything you say may (and probably will) be used against you.
You have a right to have a lawyer present while you are
questioned.
If you cannot afford a lawyer, one will be
appointed for you.
These are your “Miranda” rights, guaranteed by the
U.S. Constitution. If you are not given these warnings, your
statement may be inadmissible. However, this does not apply if
you volunteer information without being questioned by the
police.
ONCE I’M TOLD MY
RIGHTS, CAN I BE QUESTIONED?
You can be questioned, without a lawyer present, only if you
voluntarily give up your rights and if you understand what you
are giving up. If you agree to the questioning, then change your
mind, the questioning must stop as soon as you say so or as soon
as you say that you want a lawyer.
You may be required to give certain physical evidence. For
example, If you are suspected of driving under the influence of
alcohol, you may be requested to take a test to measure the
amount of alcohol in your system. If you refuse to take the
test, your driver’s license may be suspended and the refusal may
be used against you in court. However, if you take the test and
it shows an alcohol concentration of a level specified in
Section 49.01, Texas Penal code, your driver’s license may be
suspended, and the results of the test may be used against you
in court.
WHO CAN ARREST ME?
All law enforcement officers (such as police officers, county
sheriff officers, investigators in a district attorney’s office
and highway patrol officers) can arrest you whether they are on
or off duty. A probation or parole officer can also arrest you.
They can arrest you even if they do not have an
arrest warrant if they have probable cause or good reason to
believe you committed a crime.
If you commit an infraction, they may ask you to
sign a citation or notice instead of taking you into custody.
This is a minor offense, such as a moving violation, where the
punishment usually is a fine. If you sign the citation you are
not admitting guilt, you are only promising to appear in court.
If you have no identification or refuse to sign, an officer may
take you into custody.
WHO MAINTAINS
ARREST RECORDS AND WHAT DO THEY INCLUDE?
Local Police Departments, The State of Texas, and the Federal
Government all maintain arrest records.
The arrest record includes when and why you were
arrested, whether the charges against you were dropped or
whether you were convicted of the charges, and the subsequent
sentence imposed. Both pleading guilty and nolo contendere, and
being found guilty after a trial count as convictions.
WHEN IS AN ARREST
WARRANT USED?
Usually, a warrant is required before you can be taken into
custody from within your home. However, you can be arrested at
home without a warrant, if fast action is needed to prevent you
from escaping, destroying evidence, endangering someone’s life
or seriously damaging property.
An arrest warrant must be signed by a magistrate
or judge, who must have good reason to believe that you
committed a crime. Once an arrest warrant is issued, any law
enforcement officer in the state can arrest you - even if the
officer does not have a copy of the warrant. Generally, there is
no time limit on using a warrant to make an arrest.
Before entering your home, a law enforcement
officer must knock, identify him or herself and tell you that
you’re going to be arrested. If you refuse to open the door - or
if there is another good reason, the officer can break in
through a door or window. If the police have an arrest warrant,
you should be allowed to see it. If they do not have the warrant
with them, you should be allowed to see it as soon as it is
practical.
At an arrest site, the police may search the area
within your reach. If you are arrested outdoors without a search
warrant, they may search your home or car. Resisting an arrest
or detention is a crime. If you resist arrest, you can be
charged with a crime in addition to the crime for which you are
being arrested. If you resist, an officer can use force to
overcome your resistance or prevent your escape.
WHEN CAN I BE RELEASED?
If, during the questioning and before a charge is filed, the
police are convinced that you have not committed a crime, they
will usually release you. Under this circumstance, such a
situation can then be considered a detention and may not be
recorded as an arrest.
III. Bail and Release
WHAT IS BAIL AND HOW IS
IT SET?
The amount of bail - money or other security deposited with the
Sheriff to insure that you will appear - is set by a magistrate.
Normally, after an arrest you are taken before a Magistrate for
a Probable Cause Hearing. Your bond amount is set at that
hearing. Appear at all hearings. If you have any doubt, go to
Court so a new warrant is not issued for your arrest for failing
to appear.
If you fail to appear, your bail will be lost and
a new warrant will be issued for your arrest. For traffic
citations, officers at the jail may be able to accept bail. If
you cannot post or put up the bail, you will be kept in custody.
IV. Search and Arraignment
WHAT HAPPENS AT AN
ARRAIGNMENT?
You have a right to be arraigned without unnecessary delay. At
the arraignment you will appear before a judge who will tell you
officially of the charges against you. An attorney may be
appointed for you if you cannot afford one, and the bail can be
raised or lowered depending on the circumstances of the case.
You also can ask to be released on a P.R. bond (personal
recognizance), even if bail was previously set.
WHEN CAN AN OFFICER CONDUCT A
SEARCH?
An officer always can make a search with either your consent or a
search warrant.
However, you have a right to see the warrant
before the search begins.
WHEN CAN AN OFFICER SEARCH YOU,
YOUR HOME OR YOUR CAR WITHOUT A WARRANT?
BODY SEARCHES. If you are arrested, an officer can search you,
without a warrant, for weapons, evidence or illegal or stolen
goods. Strip searches should not be conducted for offenses that
do not involve weapons, drugs or violence unless police
reasonably suspect you are concealing a weapon or illegal goods,
and they have authorization from the supervising officer on
duty. If you are booked and jailed, you may undergo a full body
search.
HOME SEARCHES. In emergencies, such as when an
officer may be trying to prevent someone from destroying
evidence, your home can be searched without your consent and
without a warrant.
If you are taken into custody in your home, an
officer without a warrant can search only the limited area in
which you are arrested. Other rooms-and even other parts of the
same room-are off limits, unless the officer believes that other
suspects are hiding in other rooms. While searching your home,
an officer can seize evidence of any crime, such as stolen
property or drugs, which is in plain sight.
CAR SEARCHES. Your car and trunk can be searched
without your consent or a warrant if an officer has good reason
to believe it contains illegal or stolen goods or evidence. If
the police stop your car for any legal reason-such as a broken
taillight-they can seize any illegal goods in plain sight.
If you, your home or your car are searched
illegally, a judge might say that any evidence found during the
search cannot be used against you in court. If your lawyer does
not object to the evidence before trial, the court might allow
the evidence to be used. Even if the judge does decide that the
evidence cannot be used against you, it does not always mean
that your case will be dismissed.
V. DWI & BWI
If you are charged with D.W.I./B.W.I., you
only have 15 days from the day you receive a Notice
of Suspension of your driver’s license to notify the Department
of Public Safety of your request for a hearing. If you have
received such a notice and do not timely notify the Department
of Public Safety,
YOUR LICENSE WILL BE SUSPENDED. WE RECOMMEND
THAT OUR CLIENTS REQUEST A HEARING.
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