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PAMELA J. LAKATOS Attorney at Law Law Office of Pamela J. Lakatos Phone/Fax (469) 241-1970 Email pamlakatos@sbcglobal.net Collin County Bar Association "ETHICAL PITFALLS IN THE PRACTICE OF LAW" McKinney, Texas TABLE OF CONTENTS Introduction 3 Punishment Enhancement 4 Asset Forfeiture 4 Use of Internet/Computers 5 Probation Conditions 5 Driver's License 5 Possession of Firearms 11 Immigration 12 Education 13 Federal Housing 14 Food Stamps and Other Federally Funded Public Assistance 15 Employment 15 Passports 15 Civil Rights 16 Sex Offenders 16 Crimes of Moral Turpitude 16 Divorce and Custody 17 INTRODUCTION In the Texas Disciplinary Rules of Professional Conduct Preamble, subtitled A Lawyer's Responsibilities, Section 2 states: "As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the clients position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client. A lawyer acts as evaluator by examining a client's affairs and reporting about them to the client or to others." Rule 1.03 of the Texas Disciplinary Rules of Professional Conduct requires that a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information and that a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Collateral consequences of pleas are increasing explosively with each new legislative session. Every lawyer must be familiar with the collateral consequences of a plea that is entered by a client. A lawyer must inform the client of the consequences of his conduct. In the past this obligation has been seen, at least in the criminal law as an obligation to tell the client of the direct consequences of a plea of guilty or no contest. Today, with the new laws passed by each legislative session to "financially regulate" or " geographically regulate" those who enter the criminal justice system, a lawyer must go much further and inform the client of the major collateral as well as direct consequences of any plea of guilty, whether or not it results in a conviction. This paper will provide the general practitioner with most of the more draconian collateral consequences of these pleas. This paper will serve as a brief overview of the various collateral consequences of a plea of guilty to a criminal offense.
Punishment Enhancement In the past, one could enter a plea to deferred adjudication and be assured that the offense could never be used against the client. This has changed. Now deferreds are routinely reported and used as the basis of sentence enhancements and disqualifications as to employment and immigration. A deferred for assault family violence (misdemeanor) or a probation that is successfully served out can be used to enhance a subsequent family violence (misdemeanor) to a third degree felony. A previous sexual assault whether deferred or probated and served out, can be used to enhance a subsequent sexual assault so that the punishment is a mandatory life sentence. A conviction for which a person receives a felony probation can prevent one from receiving probation on a subsequent conviction. Any plea that results in a conviction on the client's record can serve as grounds for enhanced sentences, or labeling a client as a habitual offender. A state conviction can sometimes subject a defendant to federal sentencing exposure and there is the possibility that the sentences will be stacked, both as to state time and federal time. This issue is most prevalent where a defendant pleads guilty in state court and is later charged with a federal offense. In that instance, the existence of the prior state conviction may subject a client to a new federal offense for which he may otherwise have been ineligible, or may escalate the sentence faced in federal court for subsequent charges under the federal sentencing guidelines. See U.S.S.G. Section 4A1.1 (Criminal History Category). A plea can also affect the likelihood of a client receiving parole on future offenses. Also, a plea could adversely affect a person who is already on probation. Be aware of sentencing enhancements in the charging of offenses. Allegations of family violence trigger increased punishments for subsequent family violence convictions. Allegations that the offense occurred in a drug free zone can result in a sentence that is draconian. See State jail felons are not entitled to credit on their sentence for time spent in jail awaiting sentencing unless the inmate is indigent and the time assessed added to his presentence jail time would exceed the maximum punishment provided for the offense. See Ex Parte Bates, 978 S. W. 2d 575 (Tex. Crim. App. 1998) Asset Forfeiture/Loss It might be possible that if one is subject to forfeiture of property that is used to commit or facilitate the commission of certain offenses and there is a lien holder that the lien holder may be able to declare their collateral in danger and accelerate the balance owed, thus causing your client to lose his/her property long before trial. (This was brought to my attention by Judge Jerry Lewis) Use of Internet/Computers As a condition of probation it is possible that a person may lose the right to use a computer and/or internet for the period of time he/she is on probation. See Probation Conditions A court may impose any condition/conditions of probation that is reasonable and designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the probationer. This includes but is not limited to requirements that a probationer not consume alcohol during the period of probation, attend drug or alcohol treatment programs, do community service work; attend any programs that the court deems appropriate. The court cannot impose a condition that has no relationship to the crime of which the probationer is guilty, relates to conduct that is not itself criminal; and forbids or requires conduct that is not reasonably related to the probationer's future criminality or does not serve the statutory ends of probation. See Belt v. State, 127 S. W. 3d 277 ( Driver's License Suspensions A defendant who is finally convicted of certain driving, drug related offenses, or evading arrest (with or without the use of an automobile) automatically loses a driver's license by suspension of the license for a set period of time. A person who is convicted of graffiti may have a driver's license suspended upon order of the court. Texas Transportation Code 521.320 This suspension is for one year and is discretionary with the court. A person who is convicted of racing on a public street or highway automatically has his/her license suspended for a period of one year. A person convicted of acquiring motor fuel without payment under TPC 31.03, is subject to having his/her license suspended if the judgment in the case contains a special affirmative finding under TCCP 42.019 It is for 180 days for the first offense and up to a year for the second. An adult who furnishes alcohol to a minor will lose his/her driver's license for 180 days. (HB 1357)[1] For a comprehensive list of suspensions see Texas Sentencing - Fourth Edition by Ken Anderson and John Bradley Section 9(b) [1]. If an individual is convicted of an offense under 521.451 or 521.453 of the Texas Transportation Code the period of suspension shall be for period set by the court of not less than 90 days or more than one year. Offenses covered above are: (1) display, cause or permit to be displayed, or have in the person's possession a driver's license or certificate that the person knows is fictitious or has been altered; (2) lend the person's driver's license or certificate to another person or knowingly permit another person to use the person's driver's license or certificate; (3) display or represent as the person's own a driver's license or certificate not issued to the person;
(4) possess more than one currently valid driver's license or more than one currently valid certificate; or
(5) in an application for an original, renewal, or duplicate driver's license or certificate; (a) provide a false name, false address, or a counterfeit document; or (b) knowingly make a false statement, conceal a material fact, or otherwise commit fraud Also covered are fictitious license or certificates possessed by a person under the age of 21 if it is possessed with the intent to represent that the person is 21 years of age or older, a document that is deceptively similar to a driver's license or a personal identification certificate. A license is automatically suspended for 180 days on final conviction of the license holder of: (1) an offense under Texas Transportation Code 502.409(a)(4) [fictitious motor vehicle number plate or registration insignia that is attached or displayed] (2) an offense under Texas Transportation Code 548.603(a)(1) that involves a fictitious safety inspection certificate. A license is automatically revoked on final conviction of the license holder of an offense under Texas Penal Code 37.10, if the governmental record was a motor vehicle license plate or registration insignia, within the meaning of Texas Transportation Code 502, or a safety inspection certificate, within the meaning of Texas Transportation Code Chapter 548. The revocation lasts until the second anniversary of the date of the conviction. Sex Offenders who are required to register, under Chapter 62 of the Texas Code of Criminal Procedure, must apply to DPS for a license that shows they are sex offenders. Upon conviction, their driver's license is automatically revoked. Automatic Suspensions under various penal code offenses listed in Texas Transportation Code 521.341 - one year suspension (1) an offense under 19.05 of the Texas Penal Code committed as a result of the holder's criminally negligent operation of a motor vehicle; (2) an offense under Texas Penal Code 38.04 [Evading arrest and detention - no mention of the use of a vehicle] (3) an offense under 49.04 or 49.08 of the Texas Penal Code [DWI and Intoxication Manslaughter] (4) an offense under 49.07 of the Texas Penal Code, if the person used a motor vehicle in the commission of the offense; [Intoxication Assault] (5) an offense punishable as a felony under the motor vehicle laws of this state; (6) an offense under Texas Transportation Code 550.021; or 521.453 [Accident involving personal injury or death; Fictitious license or certificate possessed by a minor]. As of No points assigned to an offense of which the person convicted is an offense of speeding and the person was at the time of the offense driving less than 10 percent faster than the posted speed limit. This does not apply to an offense committed in a school crossing zone as defined by Section 541.302 Annual surcharge for points. Each year, the department shall assess a surcharge on the license of a person who has accumulated six or more points under this subchapter during the preceding 36-month period. The amount of the surcharge under the chapter is $100 for the first six points and $25 for each additional point. The department shall notify the holder of a driver's license of the assignment of a fifth point on that license by first class mail sent to the person's most recent address as shown on the records of the department. Surcharges for certain convictions and license suspensions. "Offense relation to the operating of a motor vehicle while intoxicated" has the meaning assigned by Section 49.09 of the Penal Code. Each year the department shall assess a surcharge on the license of each person who during the preceding 36-month period has been finally convicted of an offense relating to the operating of a motor vehicle while intoxicated. The amount of the surcharge under this section is $1,000 per year, except that the amount of the surcharge is: $1,500 per year for a second or subsequent conviction within a 36-month period; and $2,000 for a first or subsequent conviction if it is shown on the trial of the offense that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.16 or more at the time the analysis was performed. The surcharge is for three years only. A surcharge for conviction of driving while license invalid or without financial responsibility shall be assessed at $250 per year. (includes Sections 521.457, 601.191, or 601.371) A surcharge for conviction of driving without a valid license shall be assessed at $100. NOTE An interlock device is required if upon conviction the court enters into the judgment that the person's breath specimen or chemical specimen indicated a blood alcohol of .15 or more. If a person refuses or fails a blood or breath test following an arrest for driving while intoxicated, the person may receive a license suspension of 90 days up to 2 years. Texas Transportation Code Chapter 524, Texas Transportation Code Chapter 724, 37 Texas Administrative Code 17.7 It is possible to receive a suspension for a DWI conviction AND a suspension for a blood/breath test refusal/failure arising from the same arrest. The license suspension period ranges from 90 days up to 2 years. However, see Texas Transportation Code 521.344, which indicates that under some circumstances a court can give credit for the time of suspension served for a breath test refusal against the suspension that follows a conviction. NOTE this section also indicates that the length of suspension, in some instances can be set by the court within a certain range. A conviction for driving while intoxicated under the age of 21 will result in an automatic suspension for one year. Texas Transportation Code 521.344. Persons under 21 years of age who are convicted of the following offenses will receive a 30 day license suspension for the first offense, 60 days for a second offense, and 180 days for a third offense. Alcohol Beverage Code 106.071. Purchase of alcohol by a minor Attempt to purchase alcohol by a minor Consumption of alcohol by a minor Possession of alcohol by a minor Misrepresentation of age by a minor A person's license is automatically suspended upon final conviction of a drug offense (which does NOT have to occur while operating a motor vehicle). The suspension period for an adult is 180 days. In addition, a drug education program is automatically required and must be completed within the 180-day suspension period or the license remains suspended until such time as a certificate of completion is received by the Texas Department of Public Safety (DPS). Texas Transportation Code 521.372. NOTE Texas Transportation Code 521.374 states that a person whose license is suspended under 521.372 may attend an educational program, approved by the Texas Commission on Alcohol and Drug Abuse under rules adopted by the commission and the department, that is designed to educate persons on the dangers of drug abuse. The period of suspension or prohibition under 521.372(c) [which holds that the suspension is 180 days] continues for an indefinite period until the individual successfully completes the educational program. This would indicate you can reduce the time of license suspension by taking the course quickly. Automatic suspensions under drug laws: (1) final conviction of an offense under the Controlled Substances Act; (2) a drug offense; (3) felony under Chapter 481, Health and Safety Code that is not a drug offense. For persons under the age of 21, the period of suspension ranges from 180 days to one year, depending on the type of offense, and the convicting court determines whether the drug education program will be required. Texas Transportation Code 521.342 Automatic suspensions for minors: (1) conviction of an offense under Section 49.04 or 49.07, TPC committed as a result of the introduction of alcohol into the body; (2) an offense under the Alcoholic Beverage Code, other than an offense to which Section 106.071 of that code applies, involving the manufacture, delivery, possession, transportation, or use of an alcoholic beverage; (3) a misdemeanor offense under Chapter 481, Health and Safety Code for which Subchapter P does not require the automatic suspension of the license; (4) an offense under Chapter 483, Health and Safety Code, involving the manufacture, delivery, possession, transportation, or use of a dangerous drug; or (5) an offense under Chapter 485, Health and Safety Code, involving the manufacture, delivery, possession, transportation, or use of an abusable volatile chemical. The suspensions for a minor vary and can be found at Texas Transportation Code 521.342; 521.343 and 521.344. A minor's license can be suspended on receipt by the Texas Department of Public Safety of an order to suspend issued by a juvenile court under Section 54.042 of the Texas Family Code or a court under Section 106.115, Alcoholic Beverage Code. A juvenile held in contempt of court can also lose his/her license. NOTE: A person who does not hold a Texas Driver License at the time of conviction will be prohibited from obtaining a Texas Driver License for a period of 180 days. The prohibition period will not begin until the person makes contact with DPS for the issuance of a driver license or for reinstatement of driving privileges for non-residents. Texas Transportation Code 521.372. A person who receives 4 or more moving violations in a period of 12 months, or 7 or more moving violations in a period of 24 months, is subject to having their license suspended. Texas Transportation Code 521.292, 37 Texas Administrative Code 15.82. A person who is operating a motor vehicle while their license is under suspension, revocation, or cancellation is subject to an additional license suspension for the same period of time as the original suspension. Texas Transportation Code 521.292, 521.457, 521.343, 37 Texas Administrative Code 15.82. A person who has been convicted of two or more violations of a driver license restriction/endorsement is subject to license suspension. Texas Transportation Code 521.292, 37 Texas Administrative Code 15.82. If a person is convicted of a second offense for no-liability insurance, the person is subject to license suspension. The license suspension period is indefinite until the person files and maintains proof of financial responsibility. Texas Transportation Code 601.231, 37 Texas Administrative Code 25.19. A person who receives two serious traffic violations in a period of 3 years is subject to disqualification of commercial driving privileges for a period of 60 days. A person who receives 3 serious traffic violations in a period of 3 years is subject to disqualification of commercial driving privileges for a period of 120 days. A serious traffic violation is a conviction occurring when driving a commercial motor vehicle. Texas Transportation Code 522.081, 37 Texas Administrative Code 15.82, 37 Texas Administrative Code 16.93. Serious Traffic Violations are: Speeding 15mph or more or more above the posted speed limit Reckless driving Improper or erratic traffic lane change Following too closely Any traffic violation in connection with a fatal accident (As of No Driver License |