I knew it had to be the first day of Dove Season. I’m in court in the morning with a client on a felony case who is considering a plea bargain, and one of the first questions I get is this: “If I go on felony probation, can I still go hunting?” Well, the short answer to that, Bubba, is maybe, but how and where you do it may be a lot different than in the past.

The “how” problem is simple. Being a convicted felon does not keep you from getting a Texas hunting license. What you will use to hunt with, however, is a little bit more of a challenge. If you are a convicted felon, you can’t possess a firearm outside of your residence until five years has passed from the date you are released from probation, prison, or parole, whichever comes latest. Possessing a firearm if you are a felon under these circumstances is a separate felony offense. Obviously, if you are convicted and still on felony probation you can’t be roaming around a hunting lease with a rifle. And by the way, your deer blind does not qualify as a separate “residence” no matter how much time you spend in there and how decked-out it is.

But what if you are on deferred adjudication for a felony, and therefore, haven’t been convicted of anything?  Don’t go full Rambo just yet.  Read you conditions of probation.  Judges have wide discretion in setting the conditions of a probation, and judges routinely prohibit the possession of firearms by guys on felony probation, including deferred adjudication.

Several of my former clients who are hunters, and who are on felony probation, have come up with creative solution — they’ve taken up bow-hunting.  Granted, trying to bring down small birds on the fly with a bow-and-arrow might be a little too tricky.  You may be out of commission for dove hunting, relegated, instead, to stalking God’s furry creatures rather than the feathered ones.  But it’s legal.

The “where” problem is one that many people forget.  When you are on felony probation, you are typically prohibited from leaving your county of residence unless you have a travel permit to be elsewhere, say, for work.  If the place where you hunt is in your home county, no problem.  If your deer lease is a couple of hundred miles away, you may be in violation of your probation if you get caught trying to go there.  And if you thought that getting permission from you wife to go hunting was difficult, just watch the expression on your probation officer’s face when you ask her for a travel permit in order to stalk deer.  Might want to look for a lease close to home.

Happy hunting.

Comal County has gotten a reputation for being a tough place to defend drug cases.  However, we recently won a jury trial which shows that, at least with respect to Possession of Marijuana cases, this reputation may be based more on myth than reality.

Comal County’s image when it comes to drug cases is based largely on two facts:  the County is politically very conservative, and it has elected County Court-at-Law judges who routinely hand out stiff punishments in marijuana cases.  But juries in marijuana cases, on the other hand, are a sometimes a different story.  What you find at jury selection in marijuana cases in Comal County is that many people who go around calling themselves “conservative” are, in fact, libertarians, and actually favor the legalization of marijuana.

Last week, for instance, we picked a jury in a Possession of Marijuana case involving an arrest of a tuber on the Comal River during Fourth of July Weekend of last year.  When the State began questioning potential jurors about whether they believed that marijuana should be legal in some circumstances, such as for medical use, almost every hand went up.  When the State asked whether the jurors could follow the law and convict someone of Possession of Marijuana where there was no medical issue, fully a third of the potential jurors (including a retired Drug Enforcement Administration agent) stated that they would be unwilling to convict anyone of possession of a small amount of marijuana, that it would violate their consciences to do so.  Upon further questioning by the judge concerning their ability to follow his instructions, the judge allowed some of these jurors to remain in the jury pool.  The State then was forced to use up all of its peremptory strikes to get rid of these jurors, leaving a much less State-oriented final jury than what you normally see in Comal County.

The jury that was finally sworn in was a jury that went into a marijuana case much more willing to question the State’s evidence than a typical Comal County criminal jury.  The end result:  a “not guilty” verdict.  Even though the cop in our case testified that our client admitted to having knowingly possessed the marijuana in question, the jury was unwilling to give the cop the benefit of the doubt when it came to judging his credibility.  When we spoke to jurors after the trial, they faulted the arresting cop for sloppy evidence collection and for failure to record the conversation that he had with our client.

The lesson to draw from this trial:  If the local judiciary is inclined to bury defendants in misdemeanor marijuana cases under the courthouse, then local defense attorneys should get more inclined to push marijuana cases to jury trial dockets.  In Comal County marijuana cases, it’s time to quit believing in myths and time to start believing in jurors.

TEN MORE COMMANDMENTS FOR NOT GETTING ARRESTED ON THE COMAL AND GUADALUPE RIVERS DURING MEMORIAL DAY WEEKEND
(INCLUDING THREE THINGS YOU SHOULD NEVER SAY TO A NEW BRAUNFELS, TEXAS COP)

Last May, we posted our now infamous “Ten Commandments for Not Getting Arrested on the Comal and Guadalupe Rivers During Memorial Day Weekend”. Due to the popularity of that post, we now, naturally, present THE SEQUEL. There are, of course, far more than ten ways to get arrested on the rivers, so we now give you ten more commandments for not getting arrested on or around the rivers this Memorial Day Weekend:

1. DO LISTEN TO THE GUYS IN TACKY YELLOW T-SHIRTS THAT SAY “POLICE”.
On and along the Comal River, some New Braunfels Police officers now wear shorts and yellow T-shirts with the word “POLICE” printed on them. Yet, invariably, every year we wind up representing at least one person in an Evading Detention case who refused to obey one of these officers, because (the client will claim) he didn’t know that the guy yelling at him to come over to the river bank was a real cop (because, as well all know, real cops don’t wear T-shirts). They may not be the fashion police, but they are the real police. When they order you out of the river, come to shore.

2. DON’T DROP YOUR DRINK IN THE RIVER.
As you might imagine, there are quite a few citations for Minor in Possession of Alcoholic Beverage issued every Summer on the rivers. And quite a few people have gotten the bright idea to drop their drink into the drink, as it were, when called to shore by the cops. What they don’t realize is that they are likely to get a citation for Littering on the river, which in New Braunfels, actually carries a much higher potential fine than MIP.

3. JUST BECAUSE ITS FLOATING BY OR SINKING DOESN’T MEAN IT BELONGS TO YOU.
It’s common for people on the rivers to flip a tube or raft going over a rapid, often dumping their possessions in the river along with themselves. It’s also become more common for thieves to hang out by the rapids waiting for people to flip their tubes. Once the person’s possessions go into the river, the thieves scoop up the items before the submerged person can surface. So many complaints have been lodged in recent years that local law enforcement has taken to stationing undercover cops, posing as tourists, at some rapids, and have made arrests for Theft. Don’t get caught being a Comali River Pirate.

4. GET A FRONT LICENSE PLATE FOR YOUR CAR
Many tourists from Houston use State Highway 46 as a route to and from New Braunfels once they leave IH 10. Realizing this, law enforcement has made a Summer cottage industry out of stopping out-of-area motorists for minor traffic violations along SH 46. A traffic detention also provides a cop with an excuse to scope out the interior of your car for illegal items, ask you how much you had to drink on the river, etc. By far the most common such reason for a traffic stop on SH 46 (other than Speeding) is No Front License Plate. A front license plate is much cheaper than bonding out of jail for some unrelated offense. Get one.

5. DON’T PARK ILLEGALLY
At first glance, it’s not obvious what this has to do with the rivers. Last year, the anti-tourist faction of the New Braunfels City Council made it illegal to park in many neighborhoods surrounding the Comal River without having a city-issued parking permit. If you are coming from out-of-town to float the Comal, you ain’t gettin’ one. Needless to say, this has made parking around the Comal River a major hassle. If you park illegally while on the river, you are not only giving the local cops an excuse to write you ticket, but also drawing police attention to your car, including the contents of its interior. Most outfitters have private lots where you can park, as well as parking shuttles. Call your outfitter ahead of time for parking info.

6. DON’T JUMP INTO THE RIVERS FROM BRIDGES OR CLIFFS
First off, it’s dangerous. Almost every year, someone gets either seriously injured or killed jumping from a bridge or a cliff into one of the rivers. Secondly, it’s illegal. All bridges crossing the Comal River belong to the City of New Braunfels, and jumping from them is a violation of city ordinance. Most cliffs on the Guadalupe River, such as Preiss Heights Cliff, are on private land. Trying to jump from one is likely to get you busted for Criminal Trespass.

7. DON’T LIE ABOUT YOUR IDENTITY OR AGE
As noted, every Summer many of America’s Youth (who are our future) get citations on the rivers for Minor in Possession of Alcohol. And every Summer, many of these same young people with bright, promising futures, attempt to talk their way out of the citation by lying about their name or age. Lying about your identity to a cop who has lawfully detained you is a BFD under Texas law, and in some circumstances can carry a potential jail sentence or probation. Having an arrest record for a jail-time type offense that involves lying can also be a BFD when you go job hunting a few years down the road. Just. Not. Worth. It.

8. DON’T CLAIM OWNERSHIP OR CONTROL OF ANYTHING THAT DOES NOT BELONG TO YOU.
As I have mentioned elsewhere on this blog, I know that chivalry is not dead. I know this because every Summer I meet a nice young man who, when his group was confronted by a copy at the river or a campsite, claimed possession of some illegal item (i.e., marijuana, a handgun) that did not belong to him. He did so because he wanted to prevent his girlfriend or best buddy from going to jail. Ironically, however, in almost every instance, by the time the case goes to court, the girlfriend is now an ex-girlfriend and the buddy is now an ex-buddy and Mr. Gallant is left holding the baggy.

9. MAKE LOVE, NOT WAR, BUT MAKE SURE TO GET A ROOM
Almost every Summer I have the pleasure of meeting at least one young couple, very much in love, whose vacation passion found expression in the cab of a pickup truck, on a riverbank, in a tent that didn’t have the flap closed, a hotel swimming pool, etc., and who are now charged with Public Lewdness. Even in the wee hours of the morning, the areas around the rivers are still crawling with other tourists, as well as cops or private security. You are not as alone as you think.

10. NEVER, EVER, SAY ANY OF THE FOLLOWING THREE THINGS TO A NEW BRAUNFELS COP:

(1) “I’m from Houston.”
(2) “I’m from Dallas.”
(3) “I just floated the Comal River.”

Have a fun (and safe) Memorial Day Weekend. And if you have too much fun, always remember what we say at our office: “A reasonable doubt for a reasonable fee.” Let the Summer Games begin….

A good deal of our time these days is spent trying, not only to mitigate the punishment a client might receive in a criminal case, but also trying to lessen the effects on his ability to find a job.  One of the newest concerns we have run across is that of clients attempting to get T.W.I.C. cards.

T.W.I.C. is short for Transportation Worker Identification Credential.  It’s an identification card issued by the Transporation Safety Administration (TSA) to people who are going to be working at certain places where special security access is required, such as a port.  T.W.I.C. has been around for a few months now, and it’s estimated that in the neighborhood of a million-and-a-half workers will need one for their jobs.  In the past few months, we have had a handful of clients who are truck drivers who need T.W.I.C. cards in order to make deliveries to TSA regulated sites.

In order to get a T.W.I.C. card, you have to pass a criminal background check.  Some of the types of offenses that can disqualify you from a T.W.I.C. card include unlawful possession of a firearm (i.e., Unlawfully Carrying a Weapon or Possession of a Prohibited Weapon), “misrepresentation,” whatever that means (Does False Report to a Peace Officer or Failure to Identify count?), and possession with intent to distribute a controlled substance.  According to TSA’s website, it’s not even necessary to be convicted to be disqualifed.  A “guilty” or “no contest” plea to a plea bargain for deferred adjudication is a disqualification, as is merely being presently charged with one of these offenses.
If you are a truck driver, you should add T.W.I.C. disqualification to your long list of potential worries if you are charged with a crime.  Certainly, you should not consider entering any type of plea bargain agreement unless you have checked into the possible effects on your ability to work in areas regulated by the TSA.

The Seguin Police Department has begun running random traffic roadblocks.  With a photo of an officer captioned “Just Checking” detaining someone at a roadblock, the Seguin Gazette-Enterprise reported that the Seguin Police Department recently conducted a roadblock in a heavily-Hispanic neighborhood of Northwest Seguin, stopping over 215 drivers, with plans to run more such roadblocks over the coming months.  The Seguin Police Department apparently forgot to check whether or not such roadblocks are legal.  They aren’t.

Of the 215 drivers stopped, 43 received citations.  But besides the dubious wisdom behind stopping 172 innocent people for no good reason at all, a more important reason not to do them is that random check points have been illegal in Texas for 16 years.

In Holt v. State, 887 S.W.2d 16 (Tex.Crim.App.  1994), the Texas Court of Criminal Appeals held that police roadblocks are illegal unless they are adopted pursuant to a statewide plan authorized by the Legislature.  At every single session of the Legislature since the Holt decision, there has been an attempt to pass a statewide plan to allow roadblocks, and every single attempt has failed.  In 2008, the Department of Public Safety announced that it had requested a Texas Attorney General opinion concerning the legality of checkpoints and that it intended to roll out a statewide plan for roadblocks.  Shortly after the announcement, DPS backtracked after widespread protests from legislators and state civil rights groups.  In fact, since Holt, only one Texas appellate case has upheld the legality of checkpoints, but that case involved the authority of game wardens to randomly stops boats to check for safety equipment, which the Legislature has specifically allowed by statute.

Not only are the Seguin police detaining people illegally at roadblocks, but any evidence seized at an illegal roadblock is inadmissible in any subsequent criminal case.  In my business, you don’t usually make many guarantees, but I can guarantee you that any case our office gets out of an illegal Seguin police roadblock is getting a suppression motion filed, and any client stopped at such a roadblock is getting referred to a plaintiff’s attorney.  Does the City of Seguin have it’s liability insurance paid up?  Just checking.

Seguin has been pretty excited for the past several months, watching the construction of the new Caterpillar plant, and waiting for the jobs that it promises for an ailing local economy. But before you get too excited about, and start looking forward to, that good-paying Caterpillar position, you might want to look back a few years at that criminal record that you forgot about, the one you thought no longer existed.

Earlier today, I ran into someone who works for Caterpillar, and who is well-acquainted with their hiring practices (for obvious reasons, I will not divulge a name or where we met). According to this person, there are a lot of things that can keep you from getting a job at Caterpillar, but here is one thing that will pretty much guarantee being turned down: an arrest for a drug charge, including misdemeanor Possession of Marijuana. Even if the case is old, even if you completed deferred adjudication, even if the State dismissed the case and apologized to you in open court, that arrest for that joint in your car console so very long ago may be the final thing that stands between you and a job at Cat. Caterpillar runs complete background checks on its applicants (including for misdemeanors), and a drug arrest is a giant black mark.

As I have said several times before on this blog, your misdemeanor drug case really isn’t over until you have gone back and had the record of your arrest expunged, or the record of any deferred adjudication sealed from private parties. And your search for a good job, like the ones being offered at Caterpillar, hasn’t really begun until you get your arrest record in order. If you work as hard at getting your criminal history cleaned up as you did getting your case dismissed in the first place, maybe you can start working hard at a place like Caterpillar.

The offensive in New Braunfels against the Great Rowdy Tuber Menace marches on this week. The New Braunfels Herald-Zeitung recently reported that the City Council is on the verge of approving yet another ordinance that purports to protect public safety, but is really intended to disrupt tourism shortly before Spring Break. The ordinance would regulate the manner in which river outfitters can run shuttles for tubers. The proposal would limit shuttles only to vehicles specifically designed for commercial shuttle service and would require outfitters to carry at least one million dollars in liability insurance. This proposed ordinance comes a year after the Council restricted parking areas in the vicinity of the Comal River, which forced outfitters to scramble in order to offer expanded shuttle service to tubers — not just to get tubers to and from the rivers, but also to get tubers to and from the outfitters’ businesses and the now-distant lots at which the tubers were forced to park.

Now, no one really argues that tube shuttles shouldn’t be operated safely. However, the timing of the ordinance is designed to make it impossible for many outfitters to comply with the new regulations in time to shuttle Spring breakers. Had the regulations been suggested after the end of the last tourist season, outfitters would have had several months in which to get ready for the new rules. If the  ordinance is passed, some outfitters may face the prospect of being run out of business.

The timing, of course, is not coincidental. This is the same council that, a few weeks ago, proposed a “roommates” ordinance that would have the effect of putting many local weekend house rental companies and bed and breakfasts out of business in the name of reducing noise from tourists on weekends.

None of these ordinances are necessary. There are plenty of laws and ordinances already on the books that protect riders in shuttles and that give law enforcement the ability to maintain peace and quiet in residential neighborhoods. The real intent of theses ordinances is to destroy the tourist industry in New Braunfels. In the long love/hate relationship that New Braunfels has had with river tourism, the hate faction now has the upper hand.

Ironically, this attack on the most iconic sector of the New Braunfels economy comes at a time when this same city council announced that the city is expected to run a 3.3 million dollar budget deficit, in large part because of declining sale tax revenues. At a time when New Braunfels desperately needs tourist dollars, the council continues to cut off its proverbial nose to spite its proverbial face.

Here’s how you know that the Guadalupe River tourist season in Comal County is just around the corner: the local powers-that-be are contemplating another series of inane (insane?) ordinances to combat those “rowdy tubers.” First they took away your cooler. Then they took away your parking spot. Now they want to take away your toilet.

Many summer tourists to New Braunfels like to rent vacation houses for the weekend. Unfortunately, some of these folks vacation a little too loud for the homeowners residing nearby. But rather than simply calling the cops when the vacationers get too loud, or dealing with rental owners who allow their properties to become a nuisance, Comal County is considering flushing away the problem of loud vacation rentals by pulling the chain on their septic permits. Under one proposal being considered, homes used as vacation rentals would be required to have septic system capacity far in excess of what is usually required for a residence, even though there is absolutely no evidence that vacation rentals now have inadequate septic systems. Since expanding the size of the septic systems would be prohibitively expensive for many owners, they would no longer be able to afford to rent the houses to tourists.

Once again, instead of using statutes and ordinances that are already on the books, and that are specifically designed to solve the problem (such as the Disorderly Conduct statute, which prohibits unreasonable noise near a private residence), the County is now poised to go after perfectly innocent owners, whose rental houses aren’t causing any problems, in the name of rooting out those “rowdy tubers” at the few houses that are.

As expected, this proposal is not passing smoothly, being considered irregular by many. In fact, a spirited pissing match is expected at the next public hearing on the matter. Here’s hoping that this bad idea becomes clogged as it tries to snake its way through the system. May the toilets in Comal County continue to flow as free as the rivers.

A couple of months ago, the county court-at-law in Comal County began experimenting with something called “Driving While Intoxicated Accountability Court.” (As if they weren’t already DWI accountability courts.) The basic idea of the new court docket was well intentioned — to give someone charged with a subsequent offense DWI case an extra incentive to volunteer for intensive outpatient treatment. In practice, the incentives to participate in the program don’t outweigh the costs for many defendants.

The program is supposed to work like this: if someone is charged with a subsequent offense DWI they are given an opportunity to go into intensive outpatient treatment through the Adult Probation Department. In exchange, the person receives a few months less than the maximum amount of probation, an automatic occupational driver’s license, and a possible waiver of jail time as a condition of probation, as well as a possible reduction in fine. Sounds like a great deal, right?

Not so much. Many people simply can’t do the program. DWI probation for someone with a subsequent offense already has a lot of hoops to jump through: DWI Intervention classes, outpatient counseling, a driver’s license suspension, jail as a condition of probation, AA attendance, community service and participation at a victim impact panel. Probation through the new DWI docket, though, is like doing probation on steroids. Probationers are expected to report several times of week, which is often impossible to do if someone is trying to hold down a job. And the perks a person is supposed to get for participating in the program really aren’t that significant. The length of probation being offered in the DWI court is similar to what we being offered to defendants before the new docket was started. Probationers were previously required to apply for occupational licenses anyway. The days of jail received as a condition of probation can usually be organized around work schedules. All of the other conditions of DWI probation are still there under the new system.

The single biggest concern that a person usually has when he walks into my office charged with a subsequent offense DWI is the possibility of losing his job. Picking up a subsequent offense DWI is a major threat to someone’s job security as it is. Having to potentially miss work several times a week to report to a probation officer only makes matters worse. It’s all well and good that the courts want to offer an opportunity for more treatment for those who wish to participate in the new program, but I suspect that most defendants will choose to take their lumps under the old system and keep their jobs, instead.

Just when you thought they couldn’t get any more diabolical, I witness this at a felony Driving While Intoxicated sentencing hearing in Guadalupe County District Court:  a portable breath test being given to a Defendant in court to determine what his sentence should be.  This week I watched a defendant in the 25th District Court being sentenced for felony DWI.  But before the judge would pronounce sentence, he ordered the probation department to administer a portable breath test to the defendant in court.  In a felony DWI, when a person is going on probation, he is required to receive a certain amount of days in the county jail upfront as a condition of the probation.  The judge in this case announced that, if the test turned out negative, the court would assess 10 days jail, but if it was positive, the defendant would get 30 days.

Now it bears pointing out that, in Texas, the results of a portable breath test are not admissible against a DWI defendant to determine his guilt or innocence.  Portable breath tests are not considered scientifically reliable enough to be trusted for that purpose, and the people who give the tests are not always properly to trained to do so.  And, sure enough, when the probation officer in this case tried to give the portable breath test in court, he couldn’t get the device to work properly.  The judge finally gave up and ordered 10 days.  This raises the question, why is a local district court using something that isn’t admissible in evidence because of its unreliability in order to decide what would be a fair punishment for a given defendant?  Was the Magic-8 Ball broken?