IF AN OFFENSE IS A MISDEMEANOR UNDER THE FOLLOWING CHAPTERS, THEN A DEFENDANT MAY FILE A PETITION FOR NON-DISCLOSURE IMMEDIATELY AFTER COMPLETION AND DISMISSAL OF THE DEFERRED ADJUDICATION COMMUNITY SUPERVISION:

 

Chapter 16      Criminal Instruments, Interceptions of Wire or Other Oral communication, and Installation of Tracking Device

            16.01 Unlawful Use of Criminal Instrument

            16.04 Unlawful Access to Stored Communications

            16.05   Illegal Divulgence of Public Communications

            16.06 Unlawful Installation of Tracking Device

           

Chapter 28      [] Criminal Mischief, and other Property Damage or Destruction

            28.03 Criminal Mischief if loss less than $1500

            28.04 Reckless Damage or Destruction

            28.07 Interference w/ Railroad Property

            28.08 Graffiti: If Pecuniary Loss is Less than $1500

 

Chapter 30      Burglary and Criminal Trespass

            30.03 Burglary of Coin-Operated or Coin Collection Machines

            30.04 Burglary of Vehicles

            30.05 Criminal Trespass          

            30.06 Criminal Trespass by Holder of License to Carry Concealed Handgun

 

Chapter 31      Theft

            31.03 Theft

            31.04 Theft of Services (less than $1500.)

            31.11 Tampering with Identification Numbers

            31.12 Theft of or Tampering with Multichannel Video or Information Services

            31.13 Manufacture, Distribution, or Advertisement of Multichannel Video or Information           Services

            31.14 Sale or Lease Multichannel Video or Information Service Device

            31.15 Possession, Manufacture, Distribution of Certain Instruments used to Commit      Retail Theft

 

Chapter 32      Fraud, Forgery, Credit Card Abuse, IBC, SEDD, ID Theft, etc.

            Forgery

            32.21 Forgery

            32.22 Criminal Simulation

            32.23 Trademark Counterfeiting

            32.24 Stealing or Receiving Stolen Check or Similar Sight Order

            Credit

            32.32 False Statement to Obtain Property or Credit

            32.33 Hindering Secured Creditors

            32.34 Fraudulent Transfer of Motor Vehicle

            32.35 Credit Card Transaction Record Laundering

            Other Deceptive Practices

            32.41 Issuance of a Bad Check

            32.42 Deceptive Business Practices

            32.44 Rigging Publicly Exhibited Contest

            32.441 Illegal Recruitment of an Athlete

            32.45 Misapplication of Fiduciary Property or Property of Financial Institution

            32.46 Securing Execution of Document by Deception

            32.47 Fraudulent Destruction, Removal, or Concealment of Writing

            32.48 Simulating Legal Process

            32.49 Refusal to Execute Release of Fraudulent Lien or Claim

            32.50 Deceptive Preparation and Marketing of Academic Report

            32.52   Fraudulent, Substandard, or Fictitious Degree

           

Chapter 33      Computer Crimes, Telecommunication Crimes

            33.02 Breach of Computer Security

            33A.02 Unauthorized Use of Telecommunications Service

            33A.04 Theft of Telecommunications Service

            33A.05 Publication of Telecommunications Access Devise

 

Chapter 35      Insurance Fraud

            35.02 Insurance Fraud

            35A.02 Medicaid Fraud

 

Chapter 36 [] Corrupt Influence

            36.03 Coercion of Public Servant or Voter

            36.04 Improper influence

            36.07 Acceptance of Honorarium

            36.08 Gift to Public Servant by Person Subject to his Jurisdiction

            36.09 Offering Gift to Public Servant

 

Chapter 37      Perjury and Other Falsification

            37.02 Perjury

            37.08 False Report to Police Officer or Law Enforcement Employee

            37.081 False Report Regarding Missing Child or Missing Person

            37.09   Tampering with or Fabricating Physical Evidence

            37.10 Tampering with Governmental Record

            37.101 Fraudulent Filing of Financing Statement

            37.12 False Identification as a Peace Officer; Misrepresentation of Property

            37.13 Record of Fraudulent Court

 

Chapter 38      Obstructing Governmental Operations

            38.02 Failure to ID

            38.03 Resisting Arrest, Search, or Transportation

            38.04 Evading Arrest or Detention

            38.05 Hindering Apprehension or Prosecution

            38.06 Escape

            38.07 Permitting or Facilitating Escape

            38.10 Bail Jumping and Failure to Appear

            38.111 Improper Contact with Victim

            38.114 Contraband in a Correctional Facility

            38.12 Barratry and Solicitation of Professional Employment

            38.123 Unauthorized Practice of Law

            38.13 Hindering Proceedings By Disorderly Conduct

            38.15 Interference with Public Duties

            38.151 Interference with Service Animals

            38.16 Preventing Execution of Civil Process

            38.17 Failure to Stop or Report Aggravated Sexual Assault of Child

            38.171 Failure to Report a Felony

            38.18 Use of Accident Report Information & Other Information for Pecuniary Gain

            38.19 Failure to Provide Notice and Report of Death of Resident of Institution

 

Chapter 39      Abuse of Office

            39.02 Abuse of Official Capacity

            39.03 Official Oppression

            39.04 Violation of Civil Rights of Person in Custody

            39.05 Failure to Report Death of Prisoner

            39.06 Misuse of Official Information

 

Chapter 43      Public Indecency: Prostitution, Obscenity

            Prostitution

            43.02 Prostitution

            43.03 Promotion of Prostitution

            Obscenity

            43.22 Obscene Display or Distribution

            43.23 Obscenity

            43.24 Sale, Distribution, or Display of Harmful Material to Minor

            43.251 Employment Harmful to Children

           

Chapter 47      Gambling

            47.02 Gambling

            47.03 Gambling Promotion

            47.04 Keeping a Gambling Place

            47.05 Communicating Gambling Information

            47.06 Possession of Gambling Device, Equipment, or Paraphernalia

           

Chapter 48      Conduct affecting Public Health

            48.01 Smoking Tobacco

            48.015 Prohibitions Relating to Certain Cigarettes

            48.02 Prohibition of the Purchase of Sale of Human Organs

 

Chapter 49      Intoxication & Alcoholic Beverage Offenses

            49.02 Public Intoxication

            49.031 Possession of Alcohol in a Motor Vehicle

            49.04  Driving While Intoxicated**

                        [**DWI offenses are not eligible for deferred – art. 42.12, § 5]

            49.065 Assembling or Operating an Amusement Ride while Intoxicated

           

Chapter 71      Organized Crime

            71.021 Violation of Court Order Enjoining Criminal Activity

 

AND MISDEMEANOR OFFENSES UNDER THE CONTROLLED SUBSTANCE ACT §§ 481.001 et seq.

 

IF AN OFFENSE IS A MISDEMEANOR UNDER CHAPTERS 20, 21, 22, 25, 42, & 46 A DEFENDANT MAY FILE A PETITION FOR NON-DISCLOSURE TWO (2) YEARS AFTER THE COMPLETITION OF THE DEFERRED ADJUDICATION COMMUNITY SUPERVISION AND DISMISSIAL OF THE INFORMATION:

 

Chapter 20      [] Unlawful Restraint

            20.02 Unlawful restraint

           

Chapter 21      Sexual Offenses

            21.06 Homosexual Conduct [Unconstitutional]

            21.07 Public Lewdness

            21.08 Indecent Exposure [2nd offense results in a conviction, the Defendant is required to         register as a sex offender, and thus, he is NOT eligible]

 

Chapter 22      Assaultive Offenses

            22.01 Assault [But not against police officer, family member or member of household]

            22.05 Deadly Conduct

            22.07 Terroristic Threat

            22.08 Aiding Suicide

            22.10 Leaving a Child in a Vehicle

           

Chapter 25      Offenses Against the Family

            25.01 Bigamy

            25.04 Enticing a Child

            25.06 Harboring a Runaway Child

            25.071 Violation of Protective Order Preventing Offense Caused by Bias or    Prejudice  [§ 25.07 Regular Violation of Protective Order is NEVER eligible]

            25.09 Advertising for Placement of Child

 

Chapter 42      Disorderly Conduct and Related Offenses

            42.01 Disorderly Conduct

            42.02 Riot

            42.03 Obstructing of Highway or Other Passageway

            42.05 Disrupting Meeting or Procession

            42.055 Funeral Disruption

            42.06 False Alarm or Report

            42.062 Interference with Emergency  Telephone Call

            42.07 Harassment

            42.08 Abuse of Corpse

            42.09 Cruelty to Livestock Animals

            42.091 Attack on Assistance Animals

            42.092 Cruelty to Non-Livestock Animals

            42.10 Dog Fighting

            42.11 Destruction of Flag

            42.12 Discharge of Firearm in Certain Municipalities

            42.13 Use of Laser Pointers

            42.14 Illumination of Aircraft by Intense Light

           

Chapter 46      Weapons

            46.02 Unlawfully Carrying Weapons

            46.035 Unlawful Carrying of Handgun by License Holder

            46.04 Unlawful Possession of a Firearms

            46.05 Prohibited Weapon

            46.06 Unlawful Transfer of Certain Weapons

            46.08 Hoax Bombs

            46.13 Making a Firearm Accessible to a Child

 

***FOR ALL FELONY OFFENSES NOT EXCLUDED FROM ELIGIBILITY UNDER 411.081(e), A CRIMINAL DEFENDANT IS NOT ENTITLED TO FILE A PETITION FOR NON-DISCLOSURE UNTIL FIVE (5) YEARS AFTER THE COMPLETITION OF THE DEFERRED ADJUDICATION COMMUNITY SUPERVISION AND DISMISSIAL OF THE INDICTMENT.

 

 

A CRIMINAL DEFENDANT IS NOT ENTITLED TO FILE A PETITION FOR NON-DISCLOSURE FOR ANY OFFENSE IF THAT DEFENDANT WAS PLACED ON DEFERRED ADJUDICATION COMMUNITY SUPERVISION FOR OR HAS PREVIOUSLY CONVICTED OR PLACED ON ANY OTHER DEFERRED ADJUDICATION FOR:

            (1) An offense requiring sex offender registration under Chapter 62;

            (2) An offense under § 20.04 (aggravated kidnapping);

            (3) An offense under 19.02 (murder), 19.03 (capital murder), 22.04 (injury to a child or elderly person), 22.041 (abandoning or endangering child), 25.07 (violation of protective order), or 42.072 (stalking); or

            (4) any other offense involving family violence as defined by § 71.004 Family     Code.

 

§ 71.004. Family Violence

 

“Family violence� means:

(1) an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself;

(2) abuse, as that term is defined by Sections 261.001(1)(C), (E), and
(G), by a member of a family or household toward a child of the family
or household; or

(3) dating violence, as that term is defined by Section 71.0021.

 

Tex. Fam. Code Ann. § 71.004 (Vernon 2002).

 

§ 71.0021. Dating Violence

(a) “Dating violence� means an act by an individual that is against another individual with whom that person has or has had a dating relationship and that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the individual in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.

(b) For purposes of this title, “dating relationship� means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of:

            (1) the length of the relationship;

            (2) the nature of the relationship; and

            (3) the frequency and type of interaction between the persons    involved in the relationship.

(c) A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a “dating relationship� under Subsection (b).

 

Tex. Fam. Code Ann. § 71.0021 (Vernon 2002).                  

 

 

 

 

Case Law and Statutory Changes

 

- Just the Highlights –

 

 

Larissa T. Roeder

Assistant District Attorney

Dallas County, Texas

214/653-3627

Fax: 214/653-3643

July 17, 2008

CASE LAW

 

State v. Beam, 226 S.W.3d 392 (Tex. 2007)

     

      On June 1, 2007, the Texas Supreme Court issued an opinion upholding the line of cases, which required the expiration of the statute of limitations as a condition precedent to the expunction of arrest records in all cases where the arrested person was NOT charged by indictment with the commission of a felony offense.

·        Dallas County Dist. Attorney’s State v. Bhat, 127 S.W.3d 435 (Tex. App.–Dallas, 2004, no pet.) (holding evidence legally sufficient to support order granting expunction of misdemeanor arrest for assault where statute of limitations had not expired, in case where charges were never filed and victim refused to file a complaint)

·        Collin County Criminal Dist. Attorney’s Office. v. Dobson, 167 S.W.3d 625 (Tex. App.–Dallas 2005, no pet.) (holding evidence legally insufficient to support expunction of misdemeanor arrest where statute of limitations had not expired)

·        State v. L.T., No. 05-04-00759-CV, 2004 Tex. App. LEXIS 11610, *1 (Tex. App.–Dallas, Dec. 22, 2004, no pet.) (reversing order granting expunction where petitioner was arrested for assault, case filed with court, but later dismissed after the petitioner completed an anger management course, and the petitioner did not prove statute of limitations had expired).

·        Collin County Criminal Dist. Attorney’s Office v. Russell, No. 05-04-00100-CV, 2005 Tex. App. LEXIS 105, at *1 (Tex. App.–Dallas, 2005, no pet.) (not designated for publication) (providing proof that statute of limitations expired is element of expunction in case where petitioner was arrested for a Class C misdemeanor offense).

·        Collin County Crim. Dist. Attorney’s Office v. Winger-Bearskin, No. 05-05-00924-CV 2006 Tex. App. LEXIS 1725 (Tex. App. Dallas Mar. 6, 2006) (reversed order granting expunction where the District Attorney’s office rejected the case before filing – petitioner was arrested for misdemeanor assault and the statute of limitations had not expired).

·        Dallas County Dist. Attorney’s Office v. Hoogerwerf, NO. 2-05-034-CV, 2005 Tex. App. LEXIS 10424, * 8 (Tex. App.– Fort Worth, 2005 no pet) (reversing order granting expunction where the defendant was arrested but never indicted for sexual assault and where the statute of limitations had not expired).

 

Rules for expunctions after Beam

 

I.          DO NOT FILE A PETITION FOR EXPUNCTION ON A  MISDEMEANOR CASE, other than one resulting in an acquittal,  UNTIL THE STATUTE OF LIMITATIONS HAS EXPIRED.

            This rule applies to:

1.                  Memo agreement dismissals

2.                  Dismissals after completion of a Divert Program

3.                  Dismissals after completion of BIPP

4.                  Cases dropped before being filed

5.                  Cases where the victim filed an affidavit of non-prosecution

6.                  “Friendly� dismissals

7.                  Dismissals based on payment of restitution

8.                  Dismissals based on the defendant’s enlistment in military service

 

            The State of Limitations on a misdemeanor offense is two (2) years from the date of the offense. Tex. Code Crim. Proc. Ann. art. 12.02 (Vernon Supp. 2007).  However “The time during the pendency of an indictment, information, or complaint shall not be computed in the period of limitation.� Tex. Code Crim. Proc. Ann. art. 12.05(b) (Vernon Supp. 2007) (emphasis added).  The Texas Department of Public Safety applies the Article 12.05 tolling provisions when calculating a petitioner’s eligibility for expunction, with limited exception.

             Tolling provisions are currently applied as follows:

1.        Where a person is arrested and no charges are filed, the statute of limitations is computed from date of offense to date of filing.

2.        Where charges are filed and later dismissed, the statute of limitations runs from the offense date until the date the case is filed, and then starts running again the date the case is dismissed.

3.        Exception: In cases where the defendant pleads to a lesser-included offense under the original information or indictment, a tolling objection will generally not apply and thus, the statute of limitations – calculated for the originally charged offense – is calculated from the date of offense. 

 

II.                 EXPIRATION OF THE STATUTE OF LIMITATIONS APPLIES TO ALL UNINDICTED FELONY OFFENSES. 

      What this means:

1.                  A person arrested for the commission of a felony, BUT NEVER CHARGED, must wait the statute of limitations before filing a petition for expunction.

2.                  A person charged by indictment with the commission of a felony and whose case has been dismissed after indictment, must wait the statute of limitations, TOLLING PROVISIONS CONSIDERED, before filing a petition for expunction unless he can prove the dismissal was based on an absence of probable cause.  See III.

3.                  A person arrested for a felony whose case is presented to the grand jury and results in a “no bill� MAY be eligible for an expunction before the expiration of the statue of limitations.                                                                                                                                             

** A grand jury “no bill� may serve as a judicial determination of no probable cause, but, if the arresting or prosecuting agency considers the investigation to be active, the petitioner will not be able to establish that the case is “no longer pending,� and thus, will not be able to establish eligibility for expunction under Article 55.01(a)(2)(B).

4.                  In cases where a person charged by indictment with the commission of a felony offense, pleads to a lesser-included Class C offense under the felony indictment, and subsequently has his case dismissed after completion of a deferred adjudication probation, that person must prove the expiration of the statute of limitations for the original felony offense. 

5.                  Dismissal based on trial court’s granting of a writ of habeas corpus -  A person who is convicted or receives a deferred adjudication probation and subsequently has his case dismissed after the “trial court� grants a writ of habeas corpus, is probably NOT eligible to receive a petition for expunction because he cannot establish eligibility under 55.01(a)(1) – convicted and pardoned,  55.01(a)(2)(B) – no conviction or community supervision, or 55.01(c) – convicted and acquitted “by the court of criminal appeals.�

 

**Reminder, when establishing eligibility for expunction under Article 55.01(a)(2), the petitioner must establish his eligibility under all three sub paragraphs, 55.01(a)(2)(A), (B), and (C).

 

III.             EXPIRATION OF THE STATUTE OF LIMITATIONS APPLIES TO INDICTED FELONY OFFENSES UNLESS THE PETITIONER CAN PROVE THE INDICTMENT WAS DISMISSED BECAUSE THE ORIGINAL INDICTMENT WAS ISSUED BASED UPON A MISTAKE OF FACT, FALSE INFORMATION, OR OTHER SIMILAR REASON INDICATING AN ABSENCE OF PROBABLE CAUSE AT THE TIME OF THE DISMISSAL TO BELIEVE THE PERSON COMMITTED THE OFFENSE. . . .

Where a petitioner seeks to expunge a “dismissed� felony case and the statute of limitations has not run, the petitioner must show both, that mistake, false information or other similar reason caused the indictment to be presented and that the fact of wrongful or mistaken presentment caused the dismissal.  A finding that the presentment was made because of false information or mistake requires proof that the grand jury based its decision to indict on erroneous facts. 

 

Things that generally DO NOT show an absence of probable cause include:

1.                              Proof that an indictment was dismissed because the evidence was insufficient to support a conviction does not establish an absence of probable cause. Harris County Dist. Attorney’s Office v. M.G.G., 866 S.W.2d 796 (Tex. App.–Houston [14^th Dist.] 1993, no pet.).

2.                              Showing a case was dismissed after the court granted a motion to suppress evidence – inadmissible confession, illegally seized evidence, etc. – does not establish that the factual underpinnings to the presentment and indictment of the offense were incorrect. An absence of probable cause to effect a valid search and seizure “does not vitiate the probable cause necessary for a grand jury to believe that a defendant is guilty of an offense.â€?  Harris County Dist. Attorney’s Office v. Pennington, 882 S.W.2d 529 (Tex. App.–Houston [1^st Dist.] 1994, no pet.); Kendall v. State, 997 S.W.2d 630 (Tex. App.–Dallas, 1998, no pet.). 

3.                              A dismissal based on the State’s inability to locate the victim or a witness at the time of trial will generally not establish an absence of probable cause. Texas Dep’t of Pub. Safety v. Mendoza, 952 S.W.2d 560 (Tex. App.–San Antonio 1997, no pet.).

4.                             A dismissal based on a victim’s refusal or inability to testify at trial does not establish that the case was dismissed because of false information, mistake, or other information indicating a lack of probable cause.  Barker v. State, 84 S.W.3d 409 (Tex. App.–Fort Worth 2002, no pet).

STATUTORY CHANGES

Service to governmental agencies via electronic transmission

            Article 55.02, §§ 2(c)(2)(c) and 3(c) now authorizes the District Clerk to serve governmental agencies via “secure electronic mail, electronic transmission, or facsimile transmission.�

1                    Attorney’s should change petitions and proposed orders to include service in accordance with these statutory changes. 

Private entities that sell criminal history record information are now subject to orders granting expunction.

What to do:

1.      List any private entities that sell criminal history record information purchased from DPS in your petition – as a party to be served by DPS.  The District Clerk’s Office will not serve private entities or governmental agencies not located in this state.

2.      If you know of a private company that continues to release information after an order of expunction is granted – DO NOT CONTACT ME.  Notify the private entity and/or the Texas Department of Public Safety.

Applicable provisions:

1.      A petitioner should now list in his petition, “private entities that compile and disseminate for compensation criminal history record information that the petitioner has reason to believe have information related to records or files that are subject to expunction.�  Tex. Code Crim. Proc. Ann. art. 55.02 § 2(b)(C) (Vernon Supp. 2007).

2.      When an order of expunction is final, “The Department of Public Safety shall also provide, by secure electronic mail, electronic transmission, or facsimile transmission, notice of the order to any private entity that is named in the order or that purchases criminal history record information from the department.�  Tex. Code Crim. Proc. Ann. art. 55.02 § 3(c-2) (Vernon Supp. 2007) (emphasis added).

3.      Government Code § 411.0851 provides: Duty of Private Entity to Update Criminal History Record Information; Civil Liability

(a)   A private entity that compiles and disseminates for compensation criminal history record information shall destroy and may not disseminate any information in the possession of the entity with respect to which the entity has received notice that:

            (1) an order of expunction has been issued under Article             55.02, Code of Criminal Procedure; or

 

 

Monday, October 1, 2007

It’s often said that a prosecutor could indict a ham sandwich if she wanted to. But a new procedure that goes into effect this month in Dallas County will give criminal-defense lawyers a chance to take their clients off the grand jury’s menu.

Starting Oct. 4, the Dallas County District Attorney’s Office will offer criminal-defense attorneys the opportunity to appear before grand juries to make presentations on behalf of their clients.

Under §20.03 of the Texas Code of Criminal Procedure, state prosecutors largely control grand jury proceedings, in which a panel of citizens decides in secret whether probable cause exists to indict a person charged with a felony.

The law allows an attorney for the accused to address the grand jury “if approved by the state’s attorney,” according to §20.04 of the code. Some Texas prosecutors allow criminal-defense lawyers to appear before a grand jury on a case-by-case basis, yet few large DAs’ offices have a general policy of approving those appearances.

But that’s exactly what Terri Moore, Dallas County’s first assistant district attorney, plans to let criminal-defense attorneys do — with some limitations.

“This is all about fairness,” says Moore, who proposed the change. “Obviously, they can’t be in the grand jury room while business is being conducted. They can’t question witnesses.”

Moore believes a better-informed grand jury will result in weak cases being disposed of earlier in the process instead of later — an effort she believes will benefit everyone involved in the system, including prosecutors, criminal-defense lawyers and their clients.

“This is not a railroad we are running,” Moore says. “This is a justice system.”

The Dallas County DA’s Office will become the largest DA’s office in Texas with such a practice. The Tarrant County DA’s Office is the only other large office that follows such a policy. Moore is a former Tarrant County assistant DA.

Criminal-defense attorneys criticized the Dallas County DA’s Office in the early 1990s for not screening cases closely enough before submitting them to grand juries. The result was that questionable cases clogged the felony courts, says George Milner III, a former Dallas prosecutor who now is a criminal-defense attorney. But in recent years, the office has cut down on weak cases by placing more-experienced prosecutors in the intake and grand jury divisions, adds Milner, a partner in Dallas’ Milner & Finn.

The Dallas DA’s Office, like most district attorney’s offices around the state, has had a longstanding practice of allowing criminal-defense lawyers to submit letters to grand juries summarizing their clients’ views of cases. But letting criminal-defense lawyers inside the grand jury is a different situation, Milner says.

“It’s a big change,” he says. “If there’s a specific issue, you can talk about it with the grand jury. It provides for much more dynamic representation as opposed to submitting a written summary.”

“It’s unusual,” Southern Methodist University Dedman School of Law professor Fred Moss says of the policy.

Moss says that laws in 19 states allow criminal-defense attorneys into grand jury rooms to counsel clients who choose to testify, but Texas is not one of them. The clients can exit the room to ask their lawyers questions, though, says Moss, who teaches criminal law.

“It’s an interesting gambit but certainly has pitfalls for both sides,” Moss says. “The question is why would a DA do that and why would a defense attorney want to go in there and lay out their case so early? It’s sort of a high-risk strategy on both parts.”

Not So Fast

Other Texas DAs’ offices are not so keen on a policy that lets defense lawyers inside grand jury rooms. The main reason is that grand jury deliberations are not meant to be adversarial proceedings, several district attorneys say.

“It’s advocacy, and it doesn’t seem to have a place in grand jury. I tell my staff not to advocate on true bills,” says Harris County District Attorney Chuck Rosenthal. “It’s a matter of whether we want to have someone come in and advocate for a particular position.”

Matt Bingham, Smith County’s DA, also questions the need for having defense attorneys in grand jury rooms. Grand juries often request that defendants testify. But by the same token, criminal-defense lawyers often urge their clients not to testify to keep them from incriminating themselves, he says. Bingham wonders why a criminal-defense attorney should be allowed to take the place of a client before a grand jury.

“I think the thing would be: Why is the defendant not testifying and where is the attorney’s information coming from?” Bingham asks. “I don’t call witnesses before a grand jury to speculate on what the facts are. I want to bring witnesses before a grand jury that have personal knowledge.”

Bill Wirskye, a former Dallas County assistant DA who left the office in January to become a criminal-defense lawyer, believes the practice could cause some problems for Dallas prosecutors, who present as many as 80 cases before a grand jury per day. Allowing defense attorneys to become part of the process could slow it down, he says.

“As a prosecutor you have to guard against the grand jury’s tendency of having a jury trial down in the grand jury as opposed to having a probable-cause hearing,” says Wirskye, an attorney with Dallas’ Fitzpatrick Hagood Smith & Uhl. “I can see some practical problems from the DA’s perspective.”

But overall, Wirskye believes the idea is a good one.

“It adds to the appearance that the DA’s office is doing the right thing, which is good in the long run,” he says.

The bigger risk of the new procedure may be for criminal-defense attorneys themselves, three lawyers say.

A problem could pop up if a criminal-defense lawyer tells the grand jury one thing and the client testifies later at trial to something else, says Brad Lollar, chief of the Dallas County Public Defender’s Office. The criminal-defense lawyer could have just committed a crime, Lollar says.

“If the attorney turns out to tell the grand jury something that isn’t true, can they get themselves indicted for aggravated perjury?” Lollar asks. “Obviously we were not there at the scene of the crime. Are we testifying, or are we talking to them off the record? And if we’re testifying, I don’t know too many attorneys that will want to do that. Everything we know we know through the clients.”

Moore says the plan is not to make criminal-defense lawyers witnesses.

Still, there are details involving criminal-defense lawyers’ presentations that need to be worked out, says John Grau, a Dallas County assistant DA who is chief of the intake and grand jury divisions.

“That’s one of the last little wrinkles I’m trying to figure out,” Grau says. “If the story changes, there will be a record if it changes. I don’t expect that will happen. And I think people will give versions that their client gives. But it is possible that the attorney gives a version that the client decides isn’t good” and leaves the lawyer hanging out there.

Then there’s the potential that the grand jury will ask the criminal-defense lawyer questions they aren’t prepared for or are not in their clients’ best interests to answer, Grau says.

“They might get asked questions by the grand jury, and it could be an interesting question,” Grau says. “They’re going to have to be careful as to what’s a problem for them. If they [a grand juror] ask a question that they can’t answer, is that going to torque off the grand jury worse than if they hadn’t appeared? That’s why I suggest the defense lawyer come see me. I don’t want to know your secrets, but I’m more than willing to tell them that’s a good path or a bad path.”

There’s also the possibility the grand jury may not want to hear from a criminal-defense attorney, Grau says. Grand juries are in control of which witnesses they want to hear from, he says.

“That will take a little bit of finesse on our part. Because I have had grand juries that are quintessentially conservative who didn’t want to hear anything from a defense lawyer,” Grau says.

But another aspect of the office’s policy is that new grand jurors will hear from a criminal-defense attorney during their orientation about the importance of listening to both sides of a case, Grau says.

During the grand jurors’ Oct. 3 orientation, Robert Udashen, a partner in Dallas’ Sorrels & Udashen and president of the Dallas Criminal Defense Lawyers Association, will give a presentation about the importance of the decisions they make.

“I will stress what a monumental thing it is to return an indictment — it can ruin someone’s life,” Udashen says. “Even if they’re found not guilty, it follows a person around.”

Tarrant County’s Policy

Since the 1970s, the Tarrant County District Attorney’s Office has had a policy of allowing criminal-defense attorneys to make grand jury presentations.

“We want the grand jury to know everything that is relevant out there,” says Kurt Stallings, a Tarrant County assistant DA who is chief of the Pretrial Division, which oversees the grand jury. “And it is not unusual for us to contact a criminal-defense attorney and ask them if they would like to make a presentation to the grand jury.”

“We may run into witnesses that say, “You don’t know the whole story,’ ” Stallings says. “And we’ll call the defense attorney and say, “Do you know anything about this?’ and invite them in. It’s not fair to anybody to go all the way to a jury and find out, oops, somebody was lying.”

Stallings doesn’t recall any problems with the policy.

Sometimes it works out better for the client that his defense lawyer makes a presentation instead of the client testifying, Stallings says.

“The reason this guy has a defense lawyer is he isn’t that smart,” Stallings says. “That’s the whole reason he needs a defense lawyer.”

Tim Evans, a criminal-defense lawyer with Fort Worth’s Evans Gandy Daniel & Moore, says he has made grand jury appearances periodically during his 20-year career that have resulted in 10 to 15 no bills.

Evans says not every case he handles is worth him making a grand jury appearance.

“It has to be something marginal proofwise or something that has a special equitable argument: “Yeah this happened, but is this really something you want to prosecute as a policy matter?’ ” Evans says. “I mean, Lord knows we have some real live cases that need prosecuting. But quite frankly there are some that don’t measure up and need resolving” before indictment.

Evans says Tarrant County’s policy has been good for everyone at the courthouse.

“I can’t believe that all the DAs’ offices in the state don’t do it,” Evans says. “And I’m pretty excited that the Dallas DA’s office is doing it.”