Felony Pre-Trial Diversion in Collin County

February 17, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

The Collin County District Attorney’s Office unveiled their new Felony Pre-Trial Diversion Plan earlier this month.

What Is Pre-Trial Diversion?

Pre-Trial Diversion (PTD) is when you do an “informal” probation without pleading guilty.  The case is dismissed when you are finished and the Collin County District Attorney’s Office does not oppose a Petition for Expunction clearing your record entirely.

The diversion can last a year or more and typically includes customary probation requirements such as monthly reporting, random drug tests, classes, and community service.

PTD is considered for first-time arrestees and the previous program was far more wide-spread for misdemeanor charges such as theft or possession of marijuana.   Acceptance into PTD is predicated also on an arrestee admitting to the charge in writing (though not a plea of guilty.)

If the person in the program fails-out or does not complete diversion then their case goes back to Court where the person can still have a trial.

An important dynamic of Pre-Trial Diversion in Collin County is a participant’s inclusion is at the sole discretion of the D.A.’s office and the probation department which administers it.  This means they can refuse to admit you for a good reason, bad reason, or no reason whatsoever.

What is New with the Program?

PTD was really only for misdemeanors but some felonies qualified too.  Now the D.A.’s office has promised to review far more applicants for Felony PTD cases.

A joke I’ve told prosecutors in the past was, “The first pre-requisite for felony PTD is it can’t be a felony.”  This is to say though the D.A.’s office had previously accepted felonies into diversion — the cases accepted were as common as purple unicorns grazing on the highway.

One of the problems with the old felony PTD system, from my point of view, was the daunting layers of prosecutors who had to be convinced my client was deserving of another chance.

Prosecutors handle hundreds of cases a certain way throughout their career and when you want a specific case to be treated differently — it’s an uphill battle.  This is completely understandable but a challenge none the less.

The D.A.’s office seems very serious about expanding the program if nothing else.  They have created a web page for applications and dedicated a prosecutor to review all of the applications which shows they have very much centralized their plan.

How Do I Get In to the Collin County Felony PTD Program?

The procedure for qualifying for Felony PTD isn’t an easy one.  You must go to their web-page and fill out an online application which requires you to upload things such as letters of recommendation, your resume, and school transcripts.

DO NOT FILL OUT THEIR APPLICATION WITHOUT A LAWYER!

First of all you need to have been indicted by the Collin County Grand Jury with a felony to begin this process… that is you have to be formally charged with a felony first (not just on-bond after being released from a felony arrest).

Second, anything you upload is information law enforcement probably already does not have about you. Anything you say or upload has the potential to be used against you.

Additional advocacy and lobbying by attorneys for their clients applying to the program will be a key component of getting accepted into the program.

If they invite you to interview with the probation department directly then you’re in pretty good shape.  You and your lawyer will go over additional paper-work and discuss the interview process.

What We Don’t Know About Felony PTD Yet

There are still many unanswered questions.  We don’t know how they will treat certain cases and we don’t have much of an idea of what their acceptance rates will look like.  For example in misdemeanor cases we know they will not accept family violence cases or DWI cases for diversion.  There will undoubtedly be categories of cases they will not review simply based on the charge.

There will be much trial and error both on the D.A.’s side of the program and on the defense side which only time will resolve.  They will undoubtedly get applications they don’t know what to do with just the same as we are guessing at what they will and won’t accept.

We will have a much better idea exactly how their new, expanded program is working in time.

Until then play it safe and listen to your lawyer.

*Jeremy Rosenthal is an attorney licensed in the State of Texas and is Board Certified in Criminal Law.  Nothing in this article is intended to be legal advice.  For legal advice about any matter contact a lawyer directly.

 

 

 


When Teachers Have Sex With Students

February 8, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Texas criminalizes an “Improper Relationship Between Educator and Student” in Texas Penal Code 21.12.  It is a 2nd Degree Felony Carrying between a 2 and 20 year jail sentence upon conviction.

These cases tend to be news-worthy and create a loud splash every time they occur.  Along with the publicity come the humiliation, shame, and feelings of helplessness for the accused and their loved ones.

A Broad Dragnet of a Law

The central problem with the law is its breadth… this is to say its sweeping nature.

Think about it this way — Everyone agrees it would be reprehensible for a teacher (regardless of age) to have sexual contact in the classroom with a student they teach in the 4th grade. But what about if an 18 year old student (over the age of consent) has sexual relations with say a cafeteria worker, janitor, or even a teacher at a private residence — and the school employee has no regular supervision or contact with the student while at school?  In other words — sex between two consenting adults.

This statute is a dragnet which treats both instances the same.

A major distinction between the two scenarios is the abuse of the child under the age of 14 would be a separate offense of aggravated sexual assault of a child or indecency with a child and could still be prosecuted as such.  The latter would otherwise not be a crime at all but for Section 21.12.

How Courts Have Analyzed This Law

A round of cases after this law was passed actually challenged the constitutionality of the improper relationship between educator and student for this reason.  At least one trial Court found the statute to be facially unconstitutional before an appellate court reversed it.  See e.g. Ex Parte Morales, 212 S.W.3d 483, (Tex.App. — Austin, 2006).

In a recent case limiting the scope of the law, a Court of Appeals actually acquit a person originally convicted by a jury because as a police officer employed by the school district’s PD, he was not an “employee” of the school even though part of his responsibilities would have been to assist at the school if needed.  See State v. Sutton, 499 S.W.3d 434 (Tex.Crim.App.– 2016).

Defending These Charges

Defending charges of improper relationships between an educator and a student takes a lot of diligence and creativity.  Obviously if the sexual relationship and/or contact itself can be contested or challenged this should be done.  If the facts seem difficult then the attorney should be prepared to lodge more creative challenges.

The Sutton opinion demonstrates even the Court’s discomfort with how broadly this law can be applied – or misapplied.  If jurors share the same sentiment then challenging these cases in trial could yield positive results.

*Jeremy Rosenthal is an attorney licensed in the State of Texas and is Board Certified in Criminal Law.  Nothing in this article is intended to be legal advice.  For legal advice about any specific situation you should contact a lawyer directly.