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David Sibley Law Office
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Discretionary Expunctions

An “expunction” theoretically erases all records relating to a criminal proceeding. For years, expunction was available in Texas only when the proceeding ended with acquittal, pardon, dismissal, or the like.

Recently, the Texas Legislature has authorized expunctions in some cases that end with conviction or deferred adjudication. This type of expunction is discretionary with the Court. In other words, the Court may grant an expunction but the Court may also refuse to grant an expunction.

Many factors likely will influence the Court including the type of crime, whether the crime is an isolated aberration or part of a life pattern, and generally whether the person “deserves” a fresh start.

The Court by the literally wording of the statute can only grant a discretionary expunction if the prosecutor recommends this. Thus, you must persuade both the Court and the prosecutor.

The largest potential problem is that the prosecutor’s recommendation apparently must be made “before the person is tried for the offense.” Thus, if you have already been convicted, it may be too late. Apparently, the legislature was envisioning the recommendation as part of a plea.

If you have already been convicted, you should definitely not focus on the timing of the prosecutor’s recommendation. It would seem a person who was convicted in the past and has behaved well since should have a stronger argument for expunction than a person in the course of a plea deal.

If your case ended in deferred adjudication in the past, your argument is that your case was never “tried.” The trial was “deferred” and never happened (assuming your probation was never revoked).

The bottom line is that in some instances the Judge can but is not required to grant you an expunction even though a conviction or deferred adjudication exists. There are some legal hurdles in some cases. Ultimately, an expunction requires persuading the Judge and prosecutor you deserve a fresh start.

This means you need to present yourself in the best light. True persuasion usually is advisable not just submission of forms. You may need to “dance” through some legal hurdles. Although success is not a sure thing, you may want to try in view of the immense benefits you may receive.

The decision on whether you should try depends on all the facts and circumstances relating to the crime and really your entire life. Of course, if you are a repeated offender with serious crimes on your record, expunction is unlikely. If you have a good record as a law abiding citizen and your crime was not particularly serious or some extenuating circumstances exist, you have a good chance.

As with many things in the law, what happens will depend in large part on the personalities, attitudes, and policies of the people involved particularly the judge and the prosecutor.

For more information, see Texas Code of Criminal Procedure Chapter 55 specifically 55.01(b)(2).

You may want to ask for a “Non-Disclosure Order” in the alternative. In other words, ask the Court to grant you a Non-Disclosure Order, if it refuses you an expunction. A Non-Disclosure Order is like an expunction but not as good. It “erases” the criminal proceeding like an expunction but it has important exceptions such as police, licensing agencies, schools, etc.

Hey Mr.David this is _________ just wanted to say Thank You!!!! You did an awesome job with _____ situation I greatly appreciate everything you have done and I will not ever forget that!! If anyone asks me for an attorney you can take it to the bank your name will be on the top of the list if there is anything I can do for you call me anytime!!! Thanks☺️☺️

Electronic Evidence: Surprises & Practicalities

Numerous electronic devices are collecting data about us continuously. I have moved around several times over the last 4 or 5 years. I have noticed that Google always quickly figures out my new “home.” Google among other things tells me how many minutes it will take me to get back to my new “home.”

Google is just one of many examples of data continuously being collected about us. Some examples are not as obvious as Google, Facebook, Smart Phones, and Security Cameras. Some are surprising. Really, we cannot feel confident that anything we do is truly private.

When we install many smart phone apps, we give the app permission to use the camera and microphone on the phone. Some modern appliances like TVs have hidden cameras and microphones, and if you read the fine print, you may consent to having your activities in your home recorded.

One large company hired new employees who brought trade secrets with them from their previous employer on a USB Drive. They were careful to not place the trade secrets on obvious data depositories such as “computers,” hard drives, and cloud services. They successfully kept the paper printouts concealed, but they made a surprising mistake despite their technological savvy.

Some modern copy machines apparently retain a digital copy of all the documents copied by the machine. Of course, digital memory is so cheap and has such huge capacity that this is feasible. The lawyers for the victimized company got an order seizing the copy machines and proved that the trade secrets had been copied on the machines thus proving that the trade secrets had been stolen.

I would say the lawyers who got the copy machines seized were unusually diligent. This probably is not going to happen in the routine case. However, this and things like this will increasingly happen in large cases both civil and criminal. The lesson to be learned first is to be honest. That is the best policy (Although it doesn’t always work, because sometimes of course dishonest people prevail over honest people). Second, don’t assume anything you do is private. It may be recorded one way or another.

This means if you are going to do something wrong maybe you just shouldn’t do it. It is difficult enough for an honest and law abiding person to defend himself when subjected to false accusations. In today’s world, don’t count on successfully defending yourself if you have done something wrong.

In a well-known recent case of corruption involving lawyers and judges in South Texas, the feds reportedly had over 30,000 recorded phone calls that they considered “evidence” in the case. It is possible now especially for the feds to gather massive amounts of evidence.

Don’t assume phone calls are private. This concern is not just applicable to the feds. The other parties to the phone calls at least in Texas may lawfully record the calls so long as a proper disclosed party to the calls. You should assume that every phone call may be recorded not only by the feds but by the other proper disclosed parties to the calls. The same applies to meetings in offices and other places. Many offices not just governmental offices also private officers now have recording systems.

This week a police officer in Fort Worth was video recorded spraying passing motorcyclists with pepper spray. The motorcyclists were not doing anything wrong. There seemed to be no sane explanation for this bizarre behavior by the officer. He got caught. You really cannot safely do stupid, unlawful, or dishonest things any more. You should try not to if not out of morality out of self-preservation. 

Post Judgment Spousal Support: Initial Eligibility Requirements

To be eligible for post judgment spousal support in Texas, one of these is necessary:

1) conviction or deferred adjudication for family violence within previous 2 years.

2) incapacitating physical or mental disability.

3) 10 years or longer marriage and insufficient earning capacity.

4) physically or mentally disabled child.

More eligibility requirements exist.

These requirements are just a start.

Also, these requirements are simplified omitting nuances.

See Texas Family Code 8.051 or a lawyer for more details.

Modern Day Witch Hunt

I just learned of a person I used to know being accused of some type of sexual abuse of a child. Curiously, several years ago, he worked on a job with two main laborers in addition to a foreman. Both of the laborers have now been accused of sexual abuse of a child. One has been sitting in jail awaiting trial well over a year.

I don't know the details of this accusation, but I have known the details of a number of these types of cases over the years. I have tried several of these cases. I have won acquittals. I lost one trial. I have represented several men who plead guilty.

I once analyzed numbers in the local newspaper for convictions for sexual child abuse in the county. I looked up the population of the county. I assumed that the typical male has an adult life time of roughly 50 years. I calculated that over 50 years, if the rate of conviction continued unchanged, every adult male in the county would be convicted of child sexual abuse.

It takes very, very little evidence to get one of these cases started. Some cases are instigated by vindictive ex wives. Some are instigated by family lawyers or school nurses. Many believe that financial incentives exist for District Attorneys, Child Advocacy Centers, CPS, and others to instigate these cases.

In one instance, a Child Advocacy Center employee asked a child three times whether her grandfather touched her within a huge circle (all the way from the belly button to the knees). The child said "no" three times. The employee asked a fourth time. The child moved her head up and down just the slightest. The employee said "yes" not the child. Undoubtedly, the employee was off camera shaking his head up and down. The child was following the employee's head thus her head went up and down a little. I have seen a prosecutor use this same "trick" in open court. This employee was later accused of fraud in connection with the child advocacy center (receiving unearned pay).

One man in Webb County was sentenced to life in prison based on the statements of a mentally disabled 2 year old child (3 years old at time of trial). The child was considered competent to testify because he knew his dog's name and various colors. I talked to the defense lawyer in that case. He said the child's mother had admitted to her sister that she was going to fabricate a false allegation. I am not sure if the jury ever heard that.

Recently, a Corpus Christi lawyer received an over 10 million dollar judgment, because his ex wife set him up for a false allegation. Fortunately, he was able to prove this. He testified that he spent hundreds of thousands of dollars in attorneys' fees to do this. Of course, most accused persons don't have that kind of money. His divorce lawyer testified that the wife's lawyer told him "we don't have to worry about that case any more because your client is being indicted this afternoon." These allegations are sometimes used as a tool in ugly divorces. This tool can be very effective.

Several times, in cases I have worked on, children have reported that family lawyers asked them to lie about their parent touching them improperly. In one instance, when I tried to address this to protect my client, the judge ruled that it was frivolous to believe the child (an obviously false proposition of law). The child's statements were strongly corroborated. Of course, if the child had lied as requested, the child likely would have been believed. This is a very ugly area. It later turned out one of the lawyers who asked the child to lie was the judge's personal lawyer and friend.

One man reported that he was falsely accused by his ex wife and her lawyers of child sexual abuse 14 times. I was personally involved with some of those accusations, and I never saw any evidence to support the accusations. It only takes an accusation to create years and many thousands of dollars of legal problems. He fortunately never went to prison but his life was disrupted for well over a decade. Those who make false accusations rarely suffer any consequences (the judgment referenced above is an exception). Usually, they benefit sometimes financially (e.g. victim's assistance funds) often by hurting people they want to hurt or by excluding the other parent from the child's life.

Of course, I am not saying that sexual abuse of children never occurs. I had one client who openly admitted to his crimes. He wrote letters to the judge admitting his guilt (obviously against my advice). It does happen. However, it is also true that lots of false allegations happen also. There is probably no area of criminal law more abused and more dangerous to innocents than this area.

First, these cases often arise in divorces and other contexts where people seek to hurt other people. Second, these cases often involve children who are manipulated into making these accusations (one child psychologist characterized this as "horrific child abuse"). Third, you have an entire well funded "industry" that exists to support and prosecute these cases. Fourth, all doubts as a practical matter tend to be resolved in favor of the accusation and the accused usually is "expendable." There is no other area where the presumption of innocence is weaker.

My main advice right now is to be very, very careful. There is no type of case that can more easily ruin an innocent person's life. No physical evidence is necessary linking you to the crime, and in fact no physical evidence is even necessary that a crime occurred. Often, an alibi is impossible because there is no specific date and time. Sometimes, if there is a specific date and time and you have an alibi, they will just change the date and time. There is a "greased chute" in support of these cases. Once the case starts it has a momentum sometimes unstoppable, and these cases are difficult to defend. Again, the advice is to be very careful.

Unfortunately, you probably should avoid children to a large extent. Children in a perfect world should have relationships with all kinds of adults in all kinds of contexts. However, in this world as it exists today, prudence dictates that adults exercise caution with respect to children. This may mean avoiding children again which is unfortunate. The "solution" to child sexual abuse (aggressive prosecution of weak cases with no physical evidence) may cause more harm than the problem itself.

One particularly dangerous situation is a girlfriend or wife with children from a previous relationship. No matter how much she might seem like a good addition to your life maybe prudence dictates avoiding this situation. Again, sad but good advice.

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Invited and Accepted Invitation to "The College of the State Bar of Texas." 

Bradley Amendment

The "Bradley Amendment" was passed in 1986. It is one of the most unfair laws ever passed. It says that past due child support cannot be reduced for any reason.There are many examples of extreme injustice arising from this law.

A man has an accident. He enters a coma. He earns no money while in a coma. When he comes out of the coma, he has a large amount of past due child support that he cannot possibly pay. The Court cannot reduce the past due child support. The man cannot get back on his feet and possibly even goes to jail.

A man is taken prisoner by a terrorist group or during a war. He earns no income while a prisoner. Again, tough. Once he is released, he cannot get on his feet and may go to jail.

More commonly, the man cannot afford a lawyer after his income drops, or he doesn't understand the importance of immediately filing a motion to modify when his income drops (child support can be changed for the future but not the past). Past due child support builds until he is in an impossible situation.

Of course, although few men are prisoners of war or terrorist groups, many men go to prison. It is not uncommon at all for a man to come out of prison and then immediately confront the risk of going to jail for child support. Men in prison usually find it nearly impossible to address their child support issues in court.

In some situations, a wildly outrageous amount of child support is awarded with no relationship to the man's earnings because the man has no legal representation or he misses a court date or whatever. He gets into an impossible situation. Fathers almost never get free representation from the State like mothers.

I represented a man years ago who didn't know he even had a child until the child was an adult. The Attorney General sought 18 years retroactive child support. You see, it is OK to award child support retroactively but not OK to reduce it retroactively. The poor man was within a few months of retiring and going on Social Security. Fortunately, the judge did not award 18 years back child support and in fact was very reasonable, but a disaster could have happened. That man would have been economically destroyed, and he may have literally gone to jail.

These types of issues explain why many times more men are homeless than women and why many more men commit suicide than women. Social safety nets are for women and traps for men.

The Bradley Amendment is an example of extremely bad law. A rigid rule was enacted based on politics. The Courts were deprived of authority to make decisions based on the equities of the specific case before them. Any time you have a political movement for "tough" and rigid laws in favor of one class of people (e.g. single mothers) against another class (e.g. fathers), the likely outcome is bad law. This is one example of many.

Of course, when this phenomena occurs, the examples given in support of the law may be compelling (e.g. a father with a good income who pays nothing), but the law inevitably becomes over broad and creates extremely inequitable outcomes.

Statutory law should not be too rigid and it should allow courts some flexibility. It is impossible for the legislature to understand all the circumstances that might arise in the future. Of course, in this instance, I don't think the horrors of this law are difficult to foresee. This was an attack on men and a gift to women.

Yes, I know sometimes the genders are reversed. Sometimes, the Bradley Amendment hurts women not men, but in the vast bulk of cases it hurts men not women not only because women usually get custody but women are just treated differently.

What do you do? Well, if your income drops, you file a motion to modify immediately (assuming you are not in a coma or a prisoner of war). When your income drops, you often cannot afford a lawyer, but even if you must file it without a lawyer, file it. A one sentence motion that states "please reduce my child support because I lost my job" is much better than nothing.

It seems to me that the past due child support can be forgiven by the person or entity entitled to receive it (often the State has the right to receive it because the State has paid assistance to the mother) even though a court cannot reduce it. It seems to me that the Court can enter an Order confirming this forgiveness even though the Court cannot forgive it on its own. However, not all women or entities entitled to receive child support are in a forgiving mood. You don't want to rely on voluntary forgiveness.

Facebook: Don't Do This

There seems to be a pattern during breakups of changing passwords to the other person's Facebook account.

In Texas, this often constitutes a crime sometimes a felony. If a message is posted under a false identity or a private message intercepted, this often is an additional crime.

It may not even be necessary to change the password or make a message under a false identity or review a private message to commit a crime. Simply signing on to someone else's Facebook account without permission all by itself may be a crime.

These things are probably true in most if not all states (and these things may also be Federal Crimes).

You should assume that doing anything at all with another person's account that a member of the public generally cannot do may be a crime, and it may be a serious crime.

I think many people don't realize this. For older people, doing this can be roughly compared to wire tapping.

Just don't do it.

Don't sign on to or change another person's Email Account, their Bank Account, or really any account belong to them. If the account is under their name, if they set the password, or they primarily use the account, it probably is their account.

Don't assume you have permission to use the account simply because they once gave you the password. If you are breaking up, you should assume you no longer have permission to use the password. An account may be "joint" but be careful.

If you need to access an account and your right to access the account is debatable, ask permission. It just isn't worth being caught up in an unintended crime. If you need something on the account and permission is denied, it is time to hire a lawyer, if you haven't already. Do what you need to do openly and if you cannot get consent, then ask a Court to help you.

If you are going to access a debatable account without permission and without court help, do it very openly. Don't hide what you are doing. Openly claim you have the right to do it. Yes, the other person might change the password, but it is always better to do debatable things in the light of day not at night.

Can you profit from the death of your ex spouse?

The answer is "yes" if your ex spouse consents. You purchase life insurance on the life of your ex spouse with you as beneficiary.

Texas has one of the most liberal "insurable interest" statutes any place. Generally, anybody can have a life insurance policy on any adult person's life so long as the person consents. Texas Insurance Code 1103.056.

However, I would suggest not granting such consent to ex spouses. I am not sure right now whether a family law court can compel such "consent," but I would strongly suggest if the issue arises that you argue against such an order.

I just don't see how it makes good sense to have an ex spouse having a financial interest in your death. I am not suggesting most ex spouses would kill you for money but some will.
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