How to sue in Justice of the Peace Courts
By Richard Senasac, Attorney
Justice of the Peace Courts, as well as small claims or some municipal courts, are designed for people to use without having a lawyer. They are also the only court where it is even vaguely safe to represent yourself. The legal arena has many pitfalls that can trip up even experienced attorneys, let alone someone not versed in the law.
JP courts are purposefully streamlined to avoid much of this. The costs of filing suit are also lower than in other courts and, if you cannot afford even these costs, you can ask the court to waive them by filing a statement of inability to pay. The court can provide forms for this.
The first thing to know is that JPs largely make their own rules. The law governing JP and small claims courts specifically exempts those courts from most of the rules by which other courts are governed. The judge decides which rules to follow. The reason for this is that JP courts are very limited in the cases they can hear. Another reason is that, if you believe the JP has made a mistake in deciding your case, it is very easy to appeal. All of this is designed to make the court far more user-friendly than other courts.
So, when can you go to JP court? JP courts can hear cases of claims and debts of $10,000 or less in controversy. They can hear evictions, suits forcing landlords to make repairs and for other statutory landlord-tenant remedies (too many and too complex to list here, but the remedy must still be for $10,000 or less). They have jurisdiction (the right to hear cases) over Photographic Traffic Signal Enforcement (the stoplight cameras). They cannot hear cases of divorce, anything to do with land ownership or land debts, slander or defamation or writs of injunctions (with limited exceptions such as writ of possession to enforce an eviction).
Talk to your local JP about what type of case you want to file and find out for sure if the JP court is right for you.
Clearing Your Record
By Clay S. Conrad, Attorney
So you were arrested. But you were innocent, the system worked and the charges were dropped. That means your record is clear, right? Many people assume that because they have been arrested but not charged or the charge has been dismissed, that they do not have a criminal record. No. Suddenly, a dozen years later, that arrest looms large when you are talking to a prospective employer, if you are lucky enough to get that far. Even an arrest without a conviction can seriously hurt job prospects, licensing or security clearances. This is the time when men’s (and women’s) thoughts turn to expunctions.
While many people refer to it as “expungement,” the term is “expunction.” Although most charges that end in conviction cannot be removed from your record, in some instances, Texas law allows you to remove information about arrests, charges or even convictions from your record. This is an expunction. In an expunction, by judicial order, all records of your case are erased and you are authorized by law to deny that the incident even occurred. To have your record expunged, you must file a civil suit against the prosecuting attorney’s office, the clerk, DPS and every office that has a record of your case. Once this is done, in many cases the State will agree to the expunction, but this is still a complex civil litigation.
So when can you have your record expunged? If you were arrested and never charged, if your case was charged but dismissed, if you had certain juvenile or class “C” (JP or Municipal Court) charges, or if you can show that you were not the person convicted, you were pardoned or your case was overturned by an appellate court, then you can have an expunction. Many convictions as a juvenile can be expunged or sealed. A fine-only offense, truancy, many Alcoholic Beverage Code offenses; all can be expunged after the child’s eighteenth birthday. Other juvenile convictions can be sealed so the records are not available to the general public.
If you are arrested as an adult, even if nothing else was ever done, that arrest remains on your record. If you were arrested but no further action has been taken over a certain period of time, which varies depending on the offense, you can request and receive an expunction. The situation is similar if a charge was filed but dismissed. Certainly, if you were tried and acquitted, you are likely to qualify for an expunction.
So, what can block an expunction? Most notably, if you have been convicted as an adult (and not pardoned), you do not qualify for an expunction. If the crime charged was “part of a criminal episode” and charges from other crimes a part of the same episode are pending, you are not eligible. You cannot have a record expunged within the statute of limitations (the time during which a charge can be prosecuted) without approval of the State. You cannot have a record expunged for a deferred adjudication or an arrest for violation of a court’s community supervision orders.
Questions that come up a lot include:
- “But I only had a fine.” If you were convicted, even if only a fine, you cannot have your record expunged.
- “What about the DNA they took?” If you have an expunction granted, your DNA records may also be expunged.
- “I had a deferred adjudication and they told me that was not a conviction.” Deferred adjudication cases that are successfully completed cannot be expunged but can be “sealed.” This means that only governmental agencies can access the records, your boss – unless you work for a government institution – cannot.
Generally, you will need to hire an attorney to file an expunction. If you have questions about whether your case qualifies, speak to a lawyer.
Am I under arrest? Am I free to leave?
By Paul Looney
“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.”
Most Americans know these words because of their use in police dramas on television such as “Law & Order”. But what are these rights – commonly known as Miranda Rights – and what happens if they are not read to you upon arrest?
In 1966 the Supreme Court ruled in Miranda v. Arizona that the Fifth Amendment of the U.S. Constitution requires that law enforcement officials advise suspects of a crime of their right to remain silent and their right to have an attorney present while being questioned in police custody. This decision comes from the self-incrimination clause of the Fifth Amendment, which reads, “nor shall any person…be compelled in any criminal case to be a witness against himself.”
Unlike police dramas where law enforcement officers read a suspect his or her Miranda Rights the moment they put them in handcuffs, officers often do not read a suspect his or her rights until much later. This is important because if you answer any questions that an officer asks you prior to being read your Miranda Rights, those answers usually cannot be used as evidence in court. So what happens if you choose to be silent before being read your rights?
In 2013, the Supreme Court ruled in Salinas v. Texas that the Fifth Amendment does not protect a defendant who has declined to answer questions asked by law enforcement before being read his or her Miranda Rights. In 1992, Salinas agreed to go with the officer to a police station in Houston to question him in connection with a double homicide. He was not under arrest and therefore was not read his Miranda Rights. As a result, Salinas refused to answer questions the police asked.
Salinas was later arrested after a witness said that Salinas committed the murders. When the case was brought to trial, the prosecution introduced evidence of Salinas’ silence. Salinas’ attorney argued that his client could use his Fifth Amendment protection whether he was in custody or not, meaning that Salinas’ silence could not be used against him. The lower court disagreed and Salinas was found guilty and sentenced to 20 years in prison. The case was appealed to the Fourteenth Court of Appeals in Harris County, the Texas Court of Criminal Appeals and later to the United States Supreme Court. All three of these courts affirmed the lower court’s decision.
So what does this mean for you? The simplest way to explain it is if you are being questioned by police, and you are not under arrest and have not been read your Miranda Rights and you choose not to answer any questions, your silence can be used against you in court.
Instead of answering any questions, you should ask the officer interrogating you “Am I under arrest?” If the answer is “no,” you should then ask, “Am I free to leave?” If you are not under arrest, the officer should say, “Yes, you are free to leave.” Salinas’ mistake was that he accompanied the officers to the police station for questioning instead of asking these questions. By denying interrogation, you do not give a police officer the chance to ask you questions and you can therefore avoid having your silence used against you in court.
Reasons an officer may pull you over in your vehicle
By Paul Looney, Attorney
Most of us have been guilty of reckless driving. Whether we were texting while driving, driving while intoxicated or under the influence, or numerous other things that caused us to be distracted, we have all done it. However, very few of us have been pulled over by an officer for failing to maintain a lane or anything else that would lead an officer to believe we were doing something criminal.
Most people think a police officer must have probable cause in order to pull someone over. While they must have probable cause to arrest someone, they do not need probable cause to pull the person over. What the officer must have is something called a “reasonable suspicion.” As opposed to probable cause (facts used to obtain an arrest warrant), a traffic stop as a result of reasonable suspicion occurs if the officer believes a crime is being committed or is about to be committed.
In 1968, the Supreme Court ruled in Terry v. Ohio that the Fourth Amendment is not violated when a law enforcement officer searches someone without probable cause for arrest. The officer must have a reasonable suspicion a crime is being committed or will be committed. The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Therefore, searches must be deemed reasonable. The Court found that any reasonable person would have suspected the defendant was committing a crime, or in the process of committing a crime, and therefore the search did not violate the Constitution.
Though the Terry case involved searching a person, the case has been extended to traffic stops – often called “Terry stops”. This means that a police officer can stop you on a reasonable suspicion instead of probable cause, but that reasonable suspicion must be based on “specific and articulable facts.”
Reckless driving does give an officer reason to pull you over. After pulling you over the officer will determine if you are doing anything that warrants an arrest, and if there is probable cause for an arrest. The smell of alcohol or any other controlled substance, drugs or alcohol out in the open, your speech, your eye movements and many other factors can give an officer probable cause for an arrest.
So how can you avoid getting pulled over because of a reasonable suspicion? Simple. Practice safe driving habits such as avoiding texting and driving, driving while tired or sleepy and avoid driving under the influence of alcohol or other controlled substances. This prevents you from driving recklessly which will prevent police officers from suspecting you of criminal activity.
What’s Mine is Yours
By Sarah Wagner, Attorney
Quite often couples are under the impression that as soon as they are married, their property becomes jointly owned by both spouses. This simply is not true. The second you get married, your belongings do not magically turn into community property. In fact, any property you came into the marriage with will remain your separate property. This includes all money, vehicles, real estate and anything else you may own.
So what exactly is included in community property? Almost anything acquired after marriage. For example, if a married person has a job, that person’s paycheck will belong to the community because it was earned during the marriage. Furthermore, any items purchased with money that was earned during the marriage will likely be community property. Items purchased with separate property funds will likely remain the separate property of the purchasing spouse.
Almost anything acquired after marriage will become jointly-owned by the spouses with a few key exceptions. Any property acquired by a spouse by gift, devise or inheritance will remain the separate property of that spouse. This means that if a married person is gifted money, land or any other item, that item will remain the separate property of the receiving spouse even if they are happily married.
Additionally, if the spouses are both gifted the same item at the same time, that item will technically remain the separate property of each spouse. For example, Mr. and Mrs. Smith are gifted a piece of land. Mr. and Mrs. Smith will each have a fifty percent separate property interest in the land instead of the land belonging to the spouses jointly. While this seems overly technical, the characterization of marital property is important in the event of divorce and in the case that either spouse passes away.
In Texas, there is the “community property presumption.” This is relevant when a married person files for divorce or dies. This presumption means a court will presume that all property owned by either spouse is community property. To rebut this presumption, either spouse must show by “clear and convincing evidence” that the property in question is, in fact, their separate property. The clear and convincing evidence standard is a very high bar to meet. So how do you get around this?
Before marriage, a couple can enter into a premarital agreement where they state that their income will remain their separate property. Upon death or divorce, there is little question as to whether the income belongs to the community estate. Additionally, after marriage the spouses can enter into a post-marital agreement. In a post-marital agreement, the spouses can partition and exchange their community property. This means that Mr. Smith can give up his interest in Mrs. Smith’s income in exchange for Mrs. Smith giving up her interest in Mr. Smith’s income.
So is a pre-marital or post-marital agreement right for you? That is a question for you to decide. You should take into account not only the legal ramifications, but the consequences to your relationship as well.
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