UNFORESEEN CONSEQUENCES OF CRIMINAL CONVICTIONS

Transcription

1 UNFORESEEN CONSEQUENCES OF CRIMINAL CONVICTIONS RANDY T. LEAVITT Law Office of Randy T. Leavitt 1301 Rio Grande Austin, Texas Office: 512/ Fax: 512/ State Bar of Texas ADVANCED CRIMINAL LAW COURSE July 22-25, 2013 Dallas CHAPTER 8

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3 RANDY T. LEAVITT Law Office of Randy T. Leavitt 1301 Rio Grande Street Austin, Texas Office: 512/ Fax: 512/ Education: B.S. in Education, Southwest Texas State University, 1977 J.D., Texas Tech University School of Law, 1980 Staff & Associate Editor, Texas Tech Law Review, Licenses: State Bar of Texas, 1980 United States District Court, Western & Southern Districts of Texas United States Court of Appeals, Fifth Circuit Employment: Law Office of Herman Gotcher, Minton, Burton, Foster & Collins, P.C. (Partner), Travis County Attorney s Office First Assistant, Private practice, 2009-current Professional Activities: Member: Texas Criminal Defense Lawyers Association-Board of Directors, Austin Criminal Defense Lawyers Association College of the State Bar of Texas Travis County Criminal Law & Procedure Section-Former President Texas Bar Foundation-Fellow Austin Bar Association Texas District and County Attorneys Association Past-Member: State Bar of Texas Task Force on Habeas Counsel Training and Qualifications Austin Young Lawyers Association Board of Directors Presentations and Publications: Course Director, Advanced Criminal Law Course 2008, San Antonio, Texas Course Director, State Bar of Texas, Handling Your First (Or Next) DWI Case, Austin, Texas, March 2013 Course Director, State Bar of Texas, Making/Breaking Your Case: The Role of Forensic Evidence, Dallas, Texas, December, 2011 Planning Committee, Advanced Criminal Law Course , State Bar of Texas Planning Committee, Summer School , College of the State Bar of Texas Numerous articles of continuing legal education presented at programs throughout the State of Texas including: Defenses, Confessions, Pre-Trial Procedures, Exculpatory Evidence, DWI Field Sobriety Testing, and HGN, Cross Examination, Involuntary Manslaughter, Brady: To Tell or Not To Tell, Collateral Consequences of Criminal Convictions, for the State Bar of Texas, Texas District and County Attorneys Association, Austin Criminal Defense Attorneys Association, Texas Criminal Defense Lawyers Association, Texas Association of Counties and Travis County Bar, and College of the State Bar of Texas Fifth Circuit Survey, Criminal Law & Procedure, Texas Tech Law Review, Vol. X, No. 3, 1979 Horizontal Gaze Nystagmus, Voice for the Defense, Vol. 22, No. 9, 1993 Honors and Certifications: Board Certified-Criminal Law, Texas Board of Legal Specialization, present Selected as a "Texas Super Lawyer" by Texas Monthly Magazine, present Mediator-qualified pursuant to Texas Civil Practice Remedies Code

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5 PREFACE I wish to recognize Pamela J. Lakatos of Plano, Texas for her original work in a paper she presented to the Dallas County Bar in 2007, Ethical Pitfalls in the Practice of Law. I have taken her paper, reorganized and updated it and added a few sections with particular emphasis on recent legislation. In 2011, David Gonzalez of Sumpter & Gonzales L.L.P. of Austin, updated and greatly enhanced this paper and presented at the State Bar Advanced Criminal Law Course in Houston, Texas with the title Invisible Punishments, Enmeshed Penalties, and Unforeseen Consequences of Criminal Convictions. Recently, I added a new section and updated a few sections. While this article focuses on Texas law, there are several excellent articles devoted to federal collateral consequences. The American Bar Association Commission on Effective Criminal Sanctions and the Public Defender Service for the District of Columbia recently published Internal Exile: Collateral Consequences of Conviction in Federal Laws and Regulation (2009); see also Susan M. Kuzma, Federal Statutes Imposing Collateral Consequences Upon Conviction (2000), available at The Sentencing Resource Counsel Project released a similar list of invisible punishments with the goal of advocating for downward departures in federal criminal sentencing. See Denise Barrett and Sara Silva, Collateral Consequences Resource List (2010) available at For juvenile clients, the American Bar Association has launched the Juvenile Collateral Consequences Project, a national compendium of enmeshed penalties and invisible punishments triggered by a juvenile record. An interactive map for resources in all fifty states may be found at Finally, both the Sentencing Project ( and provide an outstanding array of resources, research and strategies for not only finding collateral consequences, but obtaining relief from them as well.

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7 TABLE OF CONTENTS I. FINANCIAL CONSEQUENCES... 1 A. Employment Texas Department of Licensing and Regulation Specific Professional Licenses Crimes of Moral Turpitude Criminal Conviction with Order of Restitution a Bar to Defenses in Civil Suit... 5 B. Loss of Funding and Assistance Education Funding Social Security Benefits for Prisoners Food Stamps and other Federally Funded Assistance Programs Medicaid Providers... 7 C. Asset Forfeiture... 8 D. Surcharges... 8 II. RESTRICTIONS ON RIGHTS AND PRIVILEGES... 8 A. Possession of Firearms... 8 B. Driver s License Restrictions C. Notifications in Domestic Violence Cases D. Loss of Passport Privileges E. Civil Rights and Privileges Voting Public Office Jury Service Ramifications of early discharge ( Tex. Code Crim. Proc.) F. Divorce and Child Custody G. Sex Offender Registration III. INDIRECT CRIMINAL CONSEQUENCES A. Conditions of Probation B. Punishment Enhancement CONCLUSION EXHIBIT A EXHIBIT B EXHIBIT C EXHIBIT D i

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9 UNFORESEEN CONSEQUENCES OF CRIMINAL CONVICTIONS On August 9, 2003, United States Supreme Court Justice Anthony Kennedy addressed the American Bar Association during its annual meeting. Speaking to an audience comprised of mostly civil lawyers, Justice Kennedy admonished: The subject of prisons and corrections may tempt some of you to tune out. You may think, Well, I am not a criminal lawyer. The prison system is not my problem. I might tune in again when he gets to a different subject.... The focus of the legal profession, perhaps even the obsessive focus, has been on the process for determining guilt or innocence. When someone has been judged guilty and the appellate and collateral review process has ended, the legal profession seems to lose all interest. When the prisoner is taken away, our attention turns to the next case. When the door is locked against the prisoner, we do not think about what is behind it. We have a greater responsibility. As a profession, and as a people, we should know what happens after the prisoner is taken away. To be sure the prisoner has violated the social contract; to be sure he must be punished to vindicate the law; to acknowledge the suffering of the victim, and to deter future crimes. Still, the prisoner is a person; still, he or she is part of the family of humankind. This challenge to the members of the American Bar Association resulted in the formation of the ABA Justice Kennedy Commission and resulted in eightysix pages of recommendations for criminal justice reform. Part of the Commission s recommendations focus upon successful reintegration programs, as well as identifying collateral disabilities that make it difficult to find employment. However, most of the unforeseen consequences of criminal convictions happen on a local and statewide level. While Congress may alter the scope and affect of federal consequences for conviction, the most significant impact is navigating through the myriad of statutes on a state by state level. The Supreme Court s decision in Padilla v. Kentucky, 130 S.Ct (2010) seemed to take those 1 recommendations to heart. The traditional belief was the Sixth Amendment s right to counsel was not triggered by a lawyer s failure to advise a client on a collateral consequence. The Court corrected this mistaken belief: We have never applied a distinction between direct and collateral consequences to define the scope of constitutionally reasonable professional assistance required under Strickland. Id. at 8. Three months after the Padilla decision, the National Conference of Commissioners on Uniform State Laws approved and recommended for enactment the Uniform Collateral Consequences of Conviction Act. Recognizing that most of the consequences for criminal convictions are spread throughout the civil codes, the proposed legislation would help manage the proliferation of enmeshed penalties. More significantly, the Act seeks to ensure that defendants are notified about collateral consequences at important points in a criminal case so the defendant can make an informed decision about how to proceed. The goal of the Act is to have all collateral consequences condensed into a single document. In Texas, this research has been compiled in a booklet entitled Statutory Restrictions on Convicted Felons in Texas, published by The Friends of the State Law Library. The booklet can be obtained for $10.00 from the State Law Library by calling (512) or online at This paper integrates the major state and federal consequences of conviction. For purposes of easily integrating this material into your practice, an Enmeshed Penalties Checklist is included as Exhibit A. Finally, it is important to note that not all consequences occur automatically. For clarification, a collateral sanction is used to mean a legal disability that occurs by operation of law because of a conviction, but is not part of the sentence for the crime. A collateral disqualification refers to a disadvantage that an administrative agency, civil court or other state actor is authorized but not required to impose based upon a conviction. Collectively, these are referred to enmeshed penalties or collateral consequences. I. FINANCIAL CONSEQUENCES Criminal convictions can have serious and sometimes surprising indirect financial consequences for the offender. These are of course in addition to direct fines imposed as part of a criminal sentence. Potential financial consequences include loss of employment, loss of government funding or assistance, and asset forfeiture. A. Employment State and federal restrictions on certain government programs, contracts, and licenses can significantly impact the employability of ex-offenders.

10 Many of these restrictions, even those imposed by regulatory agencies, are virtually automatic. Felony convictions, and convictions for crimes of moral turpitude, can lead to the automatic revocation of and ineligibility for a wide variety of federal and state licenses. 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 deferred adjudication sentences are routinely reported and used as the basis of sentence enhancements and disqualifications as to employment and immigration. 1. Texas Department of Licensing and Regulation The Texas Department of Licensing and Regulation (TDLR) is the primary state agency responsible for the oversight of businesses, industries, general trades, and occupations that are regulated by the state and assigned to the department by the legislature. As the umbrella occupational regulatory agency, TDLR is solely responsible for regulating twenty-nine (29) specific occupations and industries such as: Chapter 53 of the Texas Occupations Code specifies the consequences of criminal conviction. As will be discussed below in greater depth, this chapter of the Occupations Code does not apply to attorneys, peace officers, or emergency medical services personnel. In addition, the chapter is inapplicable to any person licensed by the Texas Medical Board, Texas State Board of Pharmacy, the State Board of Dental Examiners, or the State Board of Veterinary Medical Examiners who was convicted of drug related crimes. See TEX. OCC. CODE (2009). Chapter 53 explicitly sets forth the grounds for a licensing authority to suspend, revoke, disqualify or deny a person seeking a license. A license holder s license shall be revoked in the following scenarios: - the person is sent to prison following a felony conviction; - felony probation revocation; - parole revocation; or - revocation of mandatory supervision (federal offenses). Air-Conditioning/Refrigeration Contractor Athletic Trainer Pawnbroker Court interpreter Electrician Elevator inspector Underground Storage Tank Installer Registered accessibility specialists Personnel employment service provider Prepaid legal services provider Property tax consultant Property tax assessors & collectors Service contract provider Staff leasing service provider Polygraph Examiner Auctioneer Athletic Agent Talent Agent Tow truck operator Used Auto Parts Recycler Vehicle protection product warrantor Vehicle Storage Facility Owner Barber Boiler inspector Water Well Driller Water Well Pump Installer Boxing Promoter Cosmetologist Real Estate Inspector 2 See (b) TEX. OCC. CODE (2009). The licensing authority has discretion to suspend or revoke a license, disqualify a person from receiving a license, or deny to a person the opportunity to take a licensing examination when: - the offense directly relates to the duties and responsibilities of the occupation; - a sexually violent offense; - any 3(g) offense; or - any offense committed less than five years before the date the person applies for the license. See (a) TEX. OCC. CODE (2009). If the applicant has been convicted of any other offense other than those listed above, the licensing authority shall still issue a license to a qualified applicant, or at worse, a provisional license for a term of six months. Historically, the general public is under the impression that deferred adjudication probation will prevent adverse employment consequences because it is not a conviction. One reason the public believes that is because they hear from us over and over that deferred is not a final conviction. Logically, the person concludes that collateral employment and professional licensure consequences would not apply. This is no longer the case. Texas Occupations Code specifically authorizes the commission to deny, suspend, revoke or refuse to renew a license or other authorization if the

11 commission determines that a deferred adjudication makes the person holding or seeking a license unfit for the license. Section still specifically states that deferred adjudications are not considered convictions for purposes of triggering ineligibility for a professional license. However, the licensing authority may still suspend or revoke a license or disqualify a person from receiving a license for a deferred adjudication if (1) the person may pose a continued threat to public safety, or (2) employment of the person in the licensed occupation would create a situation in which the person has an opportunity to repeat the prohibited conduct. See (d) TEX. OCC. CODE (2009). Furthermore, there is no distinction between deferred adjudication and regular probation or conviction if the applicant is seeking a license relating to law enforcement, public health, education, safety services, or financial services in a regulated industry. See (e) TEX. OCC. CODE (2009). Any conviction, adjudication, or deferral of same vests the licensing authority with jurisdiction to suspend or revoke a license. The Texas Department of Licensing and Regulation through their rule making authority has taken the position that the new amendments expanded their ability to deny, revoke, or suspend a person s license since the conviction no longer has to be a felony or misdemeanor that directly relates to the occupation. See 16 Texas Administrative Code and 60.41, effective July 1, Under these provisions, the Commission and the Department are allowed to deny, revoke, suspend, or refuse to renew the license of a person who has a deferred adjudication or other activities that indicate that the person is unfit or lacks honesty, trustworthiness, and integrity to hold a license issued by the Department. This new rule provides notice that the Commission and Department have authority under Chapter 51, not just Chapter 53, to find that a person is ineligible for a license based on criminal history. It also provides notice that deferred adjudications and other activities, not just convictions, may impact a person s license eligibility. What is less clear is determining how the conviction directly relates to an occupation. Section lists four factors: 1. The nature and seriousness of the crime; 2. the relationship of the crime to the purposes for requiring a license to engage in the occupation; 3. the extent to which a license might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved; and 3 4. the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of the licensed occupation. Although factors 2 4 suggest an inquiry similar to a rational basis test, the nature and seriousness of the crime factor provides a loophole to deny a license with almost unbridled discretion. For example, a person with a ten year old conviction for possession of child pornography--neither a 3(g) offense nor a sexually violent crime--would likely face an uphill battle. Should convictions of this type prevent a person from selling securities, insurance or real estate? Must they rely upon government assistance for the rest of their lives? This can best be illustrated in how TDLR categories offenses for each particular license. Exhibit B is a list of the types of crimes cross-referenced to whether or not TDLR believes it relates to the license. At a glance, one can quickly see that any crime involving fraud or deceptive trade practices, prohibited sexual conduct with a child victim, property crime or crimes against the person are grounds for license revocation. Given the complexity of how a criminal conviction may be treated, a person may pay $25.00 to request a Criminal History Evaluation Letter so an applicant can find out before applying whether or not he would be denied a license due to a criminal conviction. The person must answer an essay question ( What exactly did you do (crime) and why? ) and submit a specific request form related to the particular license area. See 16 Texas Administrative Code 60.42, form available at In order to demonstrate to the licensing authority that a person is capable of performing the responsibilities of a licensed occupation, the Board shall also consider and the applicant must provide information concerning: 1. The extent and nature of the person s past criminal activity; 2. the age of the person when the crime was committed; 3. the amount of time that has elapsed since the person s last criminal activity; 4. the conduct and work activity of the person before and after the criminal activity; 5. evidence of the person s rehabilitation or rehabilitative effort while incarcerated or after release; and 6. other evidence of the person s fitness, including letters of recommendation from prosecutors, law enforcement and correctional officers to prosecuted arrested or had custodial responsibility for the person;

12 the local sheriff or chief of police in the community where the person resides; and any other person in contact with the convicted person. See (a) TEX. OCC. CODE (2009). 2. Specific Professional Licenses While TDLR is the umbrella organization that handles the majority of employment licenses, most professions handle the license consequences through their own professional board. However, most of the Boards simply reference Section of the Occupations Code and provide for conforming regulations. Since every self-regulating profession has its own chapter in the Occupations Code, a person must check to see how his specific license will be handled. The following is a non-exhaustive list of professions that each have their own Board and rules which governs the consequence of a conviction: Attorney (State Bar of Texas) Architect (Texas Board of Architectural Examiners) Dentist (State Board of Dental Examiners) Speech-language pathologist (State Board of Examiners for Speech-Language Pathology and Audiology) Professional Engineer (Board of Professional Engineers) Dental Hygienist (Dental Hygiene Advisory Committee) Psychologist (Texas State Board of Examiners of Psychologists) Physician (Texas Medical Board) Registered Nurse (RN) (Texas Board of Nursing) Pharmacist (Texas State Board of Pharmacy) Podiatrist (Texas State Board of Podiatric Medical Examiners) Certified Public Accountant (Texas State Board of Public Accountancy) Social Worker (Texas State Board of Social Work Examiners) Perfusionist (Texas State Perfusionist Advisory Committee) Athletic Trainer (Advisory Board of Athletic Trainers) Optometrist (Texas Optometry Board) Marriage/Family Therapist (Texas State Board of Examiners of Marriage and Family Therapists) Licensed Professional Counselor (Texas State Board of Examiners of Professional Counselors) Chemical Dependency Counselor (Department of State Health Services) Occupational Therapist (Texas Board of Occupational Therapy Examiners) Physical Therapist (Texas Board of Physical Therapy Massage Therapist (Department of State Health Services) Midwife (Midwifery Board) Funeral Director (Texas Funeral Service Commission) Veterinarian (State Board of Veterinary Medical Examiners) Licensed Vocational Nurse (LVN) Real Estate Broker Chiropractor (Texas Board of Chiropractic Examiners) Dietitian (Texas State Board of Examiners of Dietitians) Court Reporter (Court Reporters Certification Board) Law enforcement officer (Commission on Law Enforcement Officer Standards and Education) Similarly, graduate students with prior offenses seeking admission into one of these professions are faced with a formal hearing and review process to explain why they should be allowed to sit for a licensure examination depending upon the severity of the offense. Most grounds for professional discipline in the above professions include: Violating Rules of Professional Conduct Felony conviction Any criminal offense involving fraud or dishonesty Malpractice Practicing under influence of alcohol or drugs (or dependency) Untreated mental health concerns Almost every type of employment that could be considered a career or profession will involve a professional license. For minimum wage jobs, contract employment, and other types of unskilled labor, there are other screening tools that result in unforeseen consequences for a conviction. 3. Crimes of Moral Turpitude In most instances, before a conviction can be used to deprive one of a particular right or privilege, it must qualify as a felony or crime of moral turpitude. Most criminal background checks are looking for crimes of moral turpitude as a litmus test for employability. Convictions for crimes of moral turpitude can affect a person s ability to be licensed, obtain security 4

13 clearances, and be employed. Also, Rule 609 Tex. Rules of Evid. allows convictions for felonies and crimes of moral turpitude to impeach the witness. Moral turpitude is defined as: a. The quality of a crime involving grave infringement of the moral sentiment of the community as distinguished from statutory mala prohibita; b. Conduct that is base, vile, or depraved; and c. Something that is inherently immoral or dishonest. See Ludwig v. State, 969 S.W.2d 22, 28 (TEX.APP. Forth Worth 1998, pet. ref d). What follows is a list of crimes that have been defined as being ones involving moral turpitude or those that have not: Crimes involving moral turpitude Prostitution involves moral turpitude. Holgin v. State, 480 S.W.2d 405 (TEX.CRIM.APP. 1972) Theft is a crime of moral turpitude. Benshaw v. State, 88 S.W.2d 495 (1935) Swindling involves moral turpitude. Sherman v. State, 62 S.W.2d 146 (1933) Making a False Report is a crime of moral turpitude. Lape v. State, 893 S.W.2d 949, 958 (TEX.APP. Houston [14 th Dist.] 1994, pet ref d) Assault by a man against a woman is a crime of moral turpitude. Hardeman v. State, 868 S.W.2d 404, 405 (TEX.APP. Austin 1993, pet. dism d) Indecent Exposure is a crime of moral turpitude because by his intent to sexually arouse either himself or another, acts upon motives of baseness, vileness, and depravity. Polk v. State, 865 S.W.2d 627 (TEX.APP. Fort Worth 1993) Bigamy by a lawyer is a crime of moral turpitude, not by non-lawyer. Ruhe v. State Bar, 1994 TEX.APP. Lexis 3948, 1994 WL (TEX.APP. Dallas 1994) (unreported) Failure to Identify is a crime of moral turpitude. Lape v. State, 893 S.W.2d 949, 958 (TEX.APP. Houston [14 th Dist.] 1994, pet. ref d) Delivery of a Simulated controlled substance is a crime of moral turpitude. United States v. Ekpin, 214 F. Supp. 2d 707, (U.S. Dist., 2002) A conviction for the misdemeanor offense of violation of a protective order will be considered a crime of moral turpitude when the underlying, uncharged offense is one of family violence or the direct threat of family violence. Polk v. State, 865 S.W.2d 627, 630 (TEX APP. Fort Worth 1993) 5 Failure To Stop And Render Aid (sometimes) Tate v. State Bar of Texas, 920 S. W. 2d 727 (TEX. APP. Houston [1 st Dist.] 1996, writ denied) Crimes that do not involve moral turpitude Issuance of a bad check not a crime of moral turpitude unless it was done with intent to defraud. Dallas County Bail Bond Board v. Danny Mason, 773 S.W.2d 586 (TEX.APP. Dallas, 1989). Caveat: Even though this is not considered a crime of moral turpitude, many employers will automatically deny employment because this statute is under the Fraud section of the Penal Code. Criminally negligent homicide is not a crime of moral turpitude. Arnold v. State, 36 S.W.3d 542, (TEX.APP. Tyler 2000) Driving While Intoxicated is not a crime of moral turpitude. Stephens v. State, 417 S.W.2d 286 (TEX.CRIM.APP. 1967) Misdemeanor marihuana possession is not crime of moral turpitude. Hernandez v. State, 976 S.W.2d 753, 756 (TEX.APP. Houston [1 st Dist.], pet denied, 980 S.W.2d 652 (TEX.CRIM.APP. 1998) Unlawfully carrying weapon is not crime of moral turpitude. Thomas v. State, 482 S.W.2d 218, 219 (TEX.CRIM.APP. 1972) Resisting arrest does not involve moral turpitude. Williams v. State, 449 S.W.2d 264, 265 (TEX.CRIM.APP. 1970) Criminal Mischief does not involve moral turpitude. Gonzalez v. State, 648 S.W.2d 740, 742 (TEX.APP. Beaumont 1983, no pet.) Criminal Trespass does not involve moral turpitude. Hutson v. State, 843 S.W.2d 106, 107 (TEX.APP. Texarkana 1992, no pet.) Use of abusive language to police officer does not involve moral turpitude. Hartford Accident & Indem. Co. v. Williams, 516 S.W.2d 425, 428 (TEX.CIV.APP. Amarillo 1974, writ ref d n.r.e.) 4. Criminal Conviction with Order of Restitution a Bar to Defenses in Civil Suit Article Tex. Code. Crim. Proc. sets out the Court s authority to order restitution in any criminal case. The good part of is that any restitution ordered and paid in a criminal case can be used as a set off or reduction in a federal or state civil proceeding. See (f)(1)(2) 1. The problem, however, arises in (l) wherein it states: Conviction of a defendant for an offense involving the act giving rise to 1 The author wishes to acknowledge and thank Vee Perini of Dallas for pointing out this rather obscure provision.

14 restitution under this article estops the defendant from denying the essential allegations of that offense in any subsequent federal civil proceeding or state civil proceeding brought by the victim, to the extent consistent with state law. As criminal lawyers, we have always thought that a plea of nolo contendere would bar any use of the plea in the civil case. Specifically, Article Tex. Code Crim. Proc. states as much: A plea of nolo contendere, the legal effect of which shall be the same as that of a guilty, except that such plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based. See also Hudson v. United States, 272 U.S. 451 (1926) where Justice Stone opined that the rule of law has never been questioned, that the implied confession, as contrasted to the express confession, does not estop the defendant to plead or prove his innocence in a civil action. Additionally, it appears from the plain reading of section (l) that it does not apply to a deferred adjudication order of restitution because it simply refers to convictions. Other issues include the definition of essential allegations of the offense. Does that mean the language of the indictment or of the statute? Clearly, it is difficult to reconcile these two statutes. B. Loss of Funding and Assistance A criminal conviction can result in the loss of funding in two main ways: ineligibility for or revocation of education funding, and ineligibility for or revocation of federal assistance programs. 1. Education Funding Several forms of educational funding are unavailable to those convicted of certain offenses: a. Basic federal education grants are unavailable to those who are incarcerated in federal or state penal institutions. See The Violent Crime Control and Law Enforcement Act of 1994, Pub.L.No , 20411, 108 Stat. 1796(1994). b. Students who have been convicted of any offense under any Federal or State law involving the possession or sale of a controlled substance can become temporarily or permanently ineligible for federal loans or grants, under the Drug Free Student Loans Act of 1998, 20 USC 1091(r), That statute contains a table outlining the length of ineligibility, ranging from a one-year period for a first possession offense to an indefinite period for a third possession, or second sale, offense. There are some limitations to these provisions, however. 6 i. Convictions that have been dismissed or expunged, and juvenile court delinquency findings, do not disqualify a candidate, per 20 USC 1091(r)(2)(B). ii. The disqualification ends if the conviction is reversed. iii. A student whose eligibility has been suspended may resume eligibility before the end of the eligibility period if the student successfully completes a drug rehabilitation program that is approved by the Secretary of Education and includes at least two unannounced drug tests. c. State education funding can also be lost as a result of criminal convictions. 1. Pursuant to Texas Education Code , one who commits a felony or Class A misdemeanor, or an offense under Chapter 481 of the Health and Safety Code (the Texas Controlled Substances Act), forfeits a prepaid higher education scholarship. This includes the offenses of possession of marijuana, possession or delivery of drug paraphernalia, and falsification of drug test results. 2. One is not eligible to receive a TEXAS grant or TEXAS II grant for two years after completing a sentence for a felony or an offense under Chapter 481 of the Health and Safety Code, per Education Code and Moreover, Education Code and render one ineligible to continue to receive a TEXAS grant or a TEXAS II grant if already receiving one when convicted. This apparently would include Class B and C misdemeanors under the Texas controlled Substance Act. 3. Many schools have adopted zero tolerance policies which cover any type of criminal offense, not only those offenses that occur on campus or at sponsored activities. Thus, any criminal conviction or deferred adjudication may be grounds for disciplinary action or loss of school benefits. Most universities have disciplinary codes that allow for denial of degrees and expulsion for violations of criminal statutes. See Institutional Rules on Student Services and Activities, Chapter II, Student Discipline and Conduct, University of Texas ( ) 2. Social Security Benefits for Prisoners 42 USC 402 (x)(1)(a) sets out specific limitations on benefits from the Social Security Administration for any person incarcerated for more than thirty (30) days

15 as a result of a conviction or revocation of probation, supervised release or parole. If one receives retirement, survivors or disability benefits and is in jail and convicted of a crime, their monthly benefits will stop after they have remained in jail for more than 30 continuous days following the conviction date. If one is, however, in jail awaiting trial, they should continue receiving benefits until they are convicted. See Once released from the penal institution, one can reapply for reinstatement of benefits by contacting the Social Security Administration and providing documentation demonstrating the release from the institution. See Interestingly, a prisoner s Medicare benefits continue for Medicare Part A (hospital insurance), but cease for Medicare Part B (medical insurance). 3. Food Stamps and other Federally Funded Assistance Programs Narcotics convictions can result in the loss of federal assistance in four ways: a. Federal law imposes a lifetime ban on food stamps and federally funded public assistance for drug felons unless a state elects otherwise, under 21 USC 862a (2002). Texas does not opt out, and imposes the federal ban in its entirety. b. Federal law imposes mandatory ineligibility for federal health care benefits for those convicted of distribution offenses under 42 USC 1320a-7 (1999). There does not appear to be any exceptions. However, 1320a-7(f) and (g) provide for appeals and applications for early termination. c. Federal grant, licenses contracts, and other benefits are restricted as to drug offenders under 21 USC 862. i. Section (a) provides that, in the discretion of the court, individual convicted of a first federal or state drug distribution offense may be rendered ineligible for all federal benefits for up to five years after conviction, and second offenders for up to ten years; third offenders are permanently ineligible as a mandatory sanction. ii. Under section (b), in the discretion of the court, individuals convicted of a first federal or state drug possession offense may be rendered ineligible for all federal benefits for up to one year, and second offenders for up to five years; and third offenders are mandatorily ineligible permanently. Section (b) sanctions may be waived if a person declares himself an addict and undergoes treatment, or is declared rehabilitated. 7 d. Federal housing policies allow for the exclusion of drug offenders from federally subsidized or funded housing, per 42 USC 1437(1)(b) (2002). In fact, drug related activity alone may result in eviction from public housing, even in the absence of a conviction. Indeed, the existence of an illegal drug user in a household will cause the entire household to be evicted and barred from public housing under 42 USC 1437(d) (1) (5). For a thorough discussion of the effect of criminal convictions on federal benefits, see General Accounting Office, Report to Congressional Requesters, Drug Offenders: Various Factors May Limit the Impacts of Federal Laws That Provide for Denial of Selected Benefits (September 2005). 4. Medicaid Providers In order to receive reimbursement for services from Medicaid, all providers must clear a criminal background check. This would include any hospital, clinic, doctor, or other professional seeking reimbursement for services provided to a Medicaid patient. The Texas Office of Inspector General (OIG) for the Health and Human Services Commission conducts the background checks of all owners, directors, and managing employees, as well as individual providers. If the background check reveals any of the following convictions, the entity and its providers will not be eligible to participate in the Medicaid program: a. Criminal homicide; b. Kidnapping and false imprisonment; c. Indecency with a child; d. Sexual assault; e. Aggravated assault; f. Injury to a child, elderly individual, or disabled individual; g. Abandoning or endangering a child; h. Aiding suicide; i. Agreement to abduct from custody; j. Sale or purchase of a child; k. Arson; l. Robbery; m. Aggravated robbery; n. Theft; o. Fraud; p. Money laundering; q. Insurance fraud; r. Bribery and corrupt influence; s. Perjury and other falsifications; t. Engaging in organized criminal activity;

16 Federal Offenses: a. Racketeer Influenced and Corrupt Organizations Act; b. Mail fraud; c. Wire fraud; d. Insurance fraud; e. Medicare fraud; f. Medicaid fraud; g. Tampering with a government document; h. Violation of Federal False Claims Act An individual provider is also banned for convictions for aiding and abetting any of the above listed offenses, or for conspiracies to commit any of the above offenses, or for a conviction under the laws of another state, which prohibits the conduct described in the above listed offenses. Similar to the professional license, there is no significance to receiving a deferred adjudication or even a pretrial diversion program. The Texas Administrative Code defines conviction as including any individual or entity that has entered into participation in a first offender, deferred adjudication, or other program or arrangement where judgment of conviction has been withheld. See TEX. ADMIN. CODE (D). C. Asset Forfeiture Asset forfeiture is a possibility in both state and federal courts, especially in narcotics cases. Both civil and criminal forfeiture statutes vary widely by jurisdiction, but are often very broad, applying not just to cash and automobiles, but homes and businesses as well. 1. Some jurisdictions attempt to seize the homes of sex offenders who commit offenses in their houses on the basis that they are instrumentalities of crime. 2. In U. S. v. Bentancourt, 422 F.3d 240 (5th Cir. 2005), the defendant s interest in a five million dollar lottery win was forfeited because he could not show he made money except by dealing cocaine. 3. DWI felons can have their vehicles forfeited, as can sex offenders who use their vehicles in the commission of a sexual performance by a child or criminal solicitation of a minor. See, e.g., City of New Brighton v Ford Excursion, 622 N.W.2d 364 (Minn.App. 2001) (upholding vehicle forfeiture for a DWI offense). D. Surcharges As of September 1, 2003 the Legislature passed new legislation that imposes surcharges upon 8 individuals who have certain convictions and license suspensions. These charges apply only to offenses that occurred after September 1, This is covered by the Driver Responsibility Program as set out in Chapter 708 of the Transportation Code. Surcharges for certain convictions: 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. (See Texas Transportation Code Sections , , and ) II. RESTRICTIONS ON RIGHTS AND PRIVILEGES Perhaps the most serious collateral consequence of a criminal conviction is the potential restriction of various rights and privileges of the offender. Although there are many such potential restrictions, this section focuses on the following: restrictions on firearm ownership; temporary or permanent loss of one s driver s license; loss of one s passport; loss of certain civil rights; loss of child custody; and mandatory sex offender registration. Notably absent from this list are immigration consequences, which are beyond the scope of this paper. For a checklist on the Immigration Consequences of Conviction published by the Immigrant Defense Project, see Exhibit C. For more comprehensive legal resources, visit or see Marina Gureia Marmolejo s article, Chapter 10, Immigration and Deportation Issues for Criminal Practitioners, Advanced Criminal Law 2009, TexasBarCLE. A. Possession of Firearms Both state and federal law restrict the possession of firearms for certain convictions. For instance, Texas law prohibits a convicted felon from possessing a firearm Tex. Penal Code. Therefore, one that has been convicted of any felony, whether placed on community supervision or not, violates both state and federal law if he/she possesses a firearm unless they have been discharged from probation with an order setting aside the conviction and releasing them from all penalties and disabilities pursuant to Art

17 Tex. Code Crim. Proc. Although under these circumstances it is clear they are not in violation of state law it is not so settled under federal law. 1. State Law: It is important to recognize the impact that an order discharging a person from probation (community supervision) has on an individual s right to possess a firearm both from a federal and state perspective. Pursuant to Art Tex. Code Crim. Proc., after a defendant has satisfactorily completed one-third of the original community supervision or two years, whichever is less, the court may reduce the term of community supervision and discharge the defendant. If the court does so it may set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the complaint, information or indictment, who shall thereafter be released from all penalties and disabilities. (There are two exceptions not applicable to firearms). See Art (a)(1)(2) Tex. Code Crim. Proc. Therefore, if a defendant receives an early discharge order pursuant to Art , then he is not subject to the restrictions of 46.04(a) Tex. Penal Code felon in possession offense. On the other hand, if one only completes probation and the court does not enter an Art order, then it can be argued that the defendant s civil rights have not been restored and he is subject to both the federal and state restrictions regarding felons in possession of weapons. See Cuellar v. State, 70 S.W. 3d 815 (TEX. CRIM. APP. 2002) Also, 46.04(b) Tex. Penal Code makes it a class A misdemeanor for a person convicted of a misdemeanor family violence assault (22.01 Tex. Penal Code) to possesses a firearm before the fifth anniversary of the later of: (1) the release from confinement or (2) the date of discharge from probation. It is questionable whether an Art Tex. Code Crim. Proc. discharge would be a defense to prosecution under this section since the statute specifically prohibits possession until five years after release from community supervision. Additionally, a conviction will affect a person s ability to obtain a concealed handgun license. TEX. GOV. CODE et seq. See Tune v. Department of Public Safety, 23 S. W. 3d 358 (Tex.2000). Texas law allows a convicted felon to possess a gun at his/her residence after five years has passed since the release from confinement or community supervision, parole or mandatory supervision, whichever date is later. TEX. PENAL CODE However, Texas rules do not necessarily control federal laws. See U.S. v. Daugherty, 264 F3d 513 (5 th Cir. 2001). (But see federal section 2.c. below). 2. Federal law: Federal restrictions may be even more restrictive. 9 a. Federal law bans the possession, shipping, receiving, or transporting of a firearm or ammunition by one who is convicted of an offense with a maximum punishment of more than one year in prison. 18 USC 922(g) and (n). Moreover, one cannot acquire firearms or ammunition while under indictment for such an offense. A person is under indictment if they have been placed on deferred adjudication pursuant to Art (5) Tex. Code Crim. Proc. because their indictment is still technically pending. b. A defendant who has been convicted of a misdemeanor crime of domestic violence is prohibited from possessing, shipping, receiving, or transporting a firearm. 18 USC 922(g)(9). c. Interestingly, state law can affect federal restrictions: If a felon has had his civil rights restored by the convicting jurisdiction, and the felon is not expressly deprived of the right to possess a firearm elsewhere under state law, he can legally possess a gun. In 1986, Congress enacted a statute that modified an earlier Supreme Court decision, Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 103 S. Ct. 986, 74 L. Ed. 2d 845 (1983), that held that federal determined what constitutes a conviction for felon in possession purposes. In The current statute now reads, [w]hat constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had his civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights provides that the person may not ship, transport, possess, or receive firearms 18 USC 921 (a))20). See, e.g., United States v. Dupaquier, 74 F.3d 615, 617 (5th Cir.1996). In Caron v. United States, the Supreme Court held, however, that if a state law has any exception to the restoration of rights regarding firearms, then the felony conviction prohibits one from possessing, transporting etc. firearms. 524 U.S. 308, 118 S. Ct L. Ed. 2d 303 (1998). Such was the holding in a 5 th Circuit case where the court upheld a conviction of a 922(g)(1) (1998). Such was the holding in a 5 th Circuit case where the court upheld a conviction of a 922(g)(1) violation (felon in possession), wherein the defendant had successfully

18 completed his Texas probation but had not had his conviction set aside and had not received a full restoration of his rights under Art Tex. Code Crim. Proc. See United States v. Daugherty, 264 F. 3d 513 (5 th Cir.-2001). Daugherty s discharge order had merely recited that his probation term had expired and had been satisfactorily fulfilled and that he was discharged from probation. Daugherty at 514 FN 1. Thus, his conviction for being a felon in possession was affirmed. B. Driver s License Restrictions Texas imposes a wide variety of suspensions upon final conviction for various offenses. Below are numerous examples and periods of suspension: 1. Graffiti Tex. Penal Code - discretionary one year suspension for conviction or probation TEX. TRANSP. CODE ; 2. Racing (a) TEX. TRANSP. CODE - mandatory one year suspension. If under 18 must perform 10 hours of community supervision and can have an occupational license only for attendance to school TEX. TRANSP. CODE. 3. Acquiring motor fuel without payment - theft, TEX. PENAL CODE - coupled with an affirmative finding pursuant to Art TEX CODE CRIM. PROC. - automatic 180 suspension first offense, 1 year for second offense TEX. TRANSP. CODE; 4. Furnishing alcohol to a minor , Alcohol Beverage Code - automatic 180 day suspension first offense, 1year second offense TEX. TRANSP. CODE; 5. Possession of fake driver s license, allowing another to use one s driver s license, possessing more than one driver s license, falsifying information on an application for a driver s license, or use of a driver s license to represent one is over 21 when they are not, and TEX. TRANSP. CODE - mandatory but duration determined by the court, suspension for not less than 90 days nor more than 1 year TEX. TRANSP. CODE; 6. Fake license plate or Safety inspection certificate, (a)(4) and (a)(1) TEX. TRANSP. CODE, - automatic 180 days suspension TEX. TRANSP. CODE; 7. Criminally negligent homicide (with a motor vehicle) 19.05, Evading arrest or detention , Intoxication assault 49.07, DWI with a child passenger , Intoxication manslaughter TEX. PENAL CODE, and any state jail felony with a motor vehicle offense involving personal injury or death - automatic one year suspension TEX. TRANSP. CODE; 8. Tampering with a government record - motor vehicle registration or license plate TEX. PENAL CODE -automatic two year suspension TEX. TRANSP. CODE; 9. DWI (minor under 21) TEX. PENAL CODE - automatic 1 year suspension TEX. TRANSP. CODE. However, compare Art (n)(1) TEX. CODE CRIM. PROC days up to one year if set by the court. Note: DPS will automatically suspend for one year, unless the defendant is required not to operate a motor vehicle unless it is equipped with an ignition interlock device; TEX. TRANSP. CODE; 10. Purchase or attempt to purchase, possession or consumption of alcohol by a minor Alcohol Beverage Code - automatic 30 days suspension first offense, 60 days second offense and 180 days third offense. A prior order of deferred disposition is considered a conviction for enhancement purposes (f)(2); However, a deferred disposition on the first offense does not require suspension. 11. Drug offenses under the Texas Controlled Substance Act - automatic 180 days minimum suspension and must complete a drug education program before the suspension is lifted TEX. TRANSP. CODE. For offenders under the age of 21, the period of suspension ranges from 180 days to 1 year and the court determines whether a drug education program will be required TEX. TRANSP. CODE; 12. 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 of the Texas Family Code or a court under of the Alcoholic Beverage Code. Finally, a juvenile held in contempt of court can also lose his license TEX. TRANSP. CODE. Additionally, convictions for most of the offenses under the Alcoholic Beverage Code will result in suspensions for minors. 13. Multiple traffic violations can result in suspension, and 37 TEX. ADMIN. CODE 15.82;

19 14. Offenses involving commercial driver s license, see TEX. TRANSP. CODE and 37 TEX. ADMIN. CODE 15.82; 15. Certain Sex Offenses, If required to register pursuant to Chapter 62 Tex. Code Crim. Proc. and they fail to apply for a renewal as required by Art Tex. Code Crim. Proc., their license is revoked until at such time as they come into compliance. Despite its length, this list is necessarily incomplete. For a comprehensive list of suspensions, see Ken Anderson & John Bradley, Texas Sentencing 9(b), Fourth Edition, LEXIS Law Pub. C. Notifications in Domestic Violence Cases Article 5.05 (e) Tex. Code Crim. Proc. requires any peace officer who investigates a family violence incident or who responds to a disturbance call that may involve family violence, to provide information concerning the incident or disturbance to the bureau of identifications and records of the Department of Public Safety. The bureau shall prescribe the form and the nature of the information required to be reported to the bureau. Article requires the clerk of the court to provide written notice of conviction or deferred adjudication to any state or federal military unit to which the defendant is assigned with the intent that the commanding officer will be notified enacted by the 82 nd Legislature, effective September 1, See also Article Tex. Code Crim. Proc. setting forth reporting requirements for both the prosecutor and the court in family violence matters to any family law court considering child custody issues. D. Loss of Passport Privileges The federal government retains broad discretion in denying and revoking the passports of convicted offenders. 1. An offender may not receive a passport if he crossed an international boundary or used the passport in committing the offense, per 22 USC 2714(a)(1), (b)(1) (2000). 2. An issued passport may be revoked, even for misdemeanor drug offenses, if the government finds that the offense should give rise to such disqualification, per 22 USC 2714 (b) (2) (2000). E. Civil Rights and Privileges Criminal convictions can result in the loss of several civil rights under Texas law. See Exhibit D for 11 a chart used by the Travis County Community Supervision department at orientation for probationers. 1. Voting A convicted felon may not vote in a public election. A conviction is considered final whether the sentence is imposed or suspended, as long as it is not on appeal. Tex. Election Code (4) (4)(A) and (B) state that this ineligibility lasts until the offender has been pardoned, or has fully discharged the person's sentence, including any term of incarceration, parole, or supervision, or completed a period of probation ordered by any court. A person on felony deferred adjudication is therefore eligible to vote. 2. Public Office A defendant convicted of a felony may not run for, or be appointed to, public elective office in Texas. Probation counts as conviction. The offender is barred for life unless pardoned or otherwise released from the resulting disabilities. See TEX. ELECTION CODE (4). 3. Jury Service A person convicted of, or currently charged with a misdemeanor theft or any felony may not serve on a petit jury. This also applies to one who is serving deferred adjudication (7) TEX. GOV T. CODE and Art TEX. CODE OF CRIM. PROC. These same restrictions apply to service on a grand jury. Tex. Code of Crim. Proc. Art see, Hoffman v. State, 922 S.W.2d 663 (Tex. App. Waco 1996, pet. ref d) and Volkswagen of America, Inc. v. Ramirez, 79 S.W.3d 113 (Tex. App.- Corpus Christi 2002) (reversed on other grounds) suggest that Code of Crim. Proc (20)(c), removes this ineligibility. However, Dempsey v. Beaumont Hosp., Inc., 38 S.W.3d 287 (Tex. App. -Beaumont 2001) and R.R.E. v. Glenn, 884 S.W.2d 189 (Tex. App.- Fort Worth 1994) take the view that only an executive pardon can remove the ineligibility. Payton v. State, 572 S.W.2d 677 (TEX. CRIM. APP. 1978) 4. Ramifications of early discharge ( Tex. Code Crim. Proc.) Once a person has been convicted of a felony in Texas numerous restrictions apply to that individual even after successful completion of community supervision, sometimes for life. Professors Dix and Dawson have recognized that the consequences of a dismissal of a charge pursuant to Art Tex. Code Crim. Proc. (early discharge) are quite limited. They explain that 20 operates to restore civil rightsto vote, serve on juries, and hold public office-that were lost by the conviction or accusation of crime. However, the dismissal is not an expunction and does not preclude other collateral consequences of a

20 criminal conviction. George E. Dix and Robert O. Dawson, Texas Practice: Criminal Practice and Procedures (2d ed. 2001) In a dissent in Cuellar v. State, 70 S.W.3d 815, 834, (TEX. CRIM. APP.-2002), Judge Keasler summarizes the lingering impacts a successfully completed probation has on an individual, [s]ignificantly, regardless of the language of 20 removing all penalties and disabilities, there are a number of statutes that impose various restrictions on a person who has successfully completed his community supervision. Specifically, this person still cannot change his name until two years after his community supervision has expired, Tex. Family Code , cannot practice law until after five years Tex. R. Govern. Bar Adm n IV, Rule IV(d)(2), cannot work at a bingo establishment until ten years after Tex. Occ. Code (a)(6), cannot obtain a lottery license until ten years Tex. Gov t Code (a)(1)(A), and cannot be a corrections officer until ten years after his community supervision has expired. Tex. Occ. Code (b), These time-limited restrictions are not the only limitations. For the rest of his life he cannot be a bail bond surety or a peace officer and cannot obtain a license to carry a concealed handgun (citations omitted). He may be denied a license as a speech pathologist or audiologist. (citations omitted) Further, he still must register as a sex offender for the rest of his life, if he has committed a sex offense. See comments regarding Hall v. State, page 14. F. Divorce and Child Custody Convictions of family violence, including both physical and sexual abuse, can have serious consequences in regard to divorce and child custody issues. Family violence is a term of art, defined by Texas Family Code Article Tex. Code Crim. Proc. requires the prosecutor to notify any other court in which the family violence criminal defendant may be in child custody litigation. Upon conviction or deferred adjudication, the court shall notify the family law court with jurisdiction over the matter. If the court is considering sole or joint conservatorship, and there is evidence of abusive physical force by a party against the party s spouse; child s parent; or any person younger than 18 years of age, and it was within a 2 year period before the suit was filed or during its pendency, then the court shall consider the evidence, per Texas Family Code (a). If there is evidence of a history or pattern of physical or sexual abuse by one parent directed at another parent, a spouse, or a child, then the court may not appoint joint managing conservatorship, per Texas Family Code (b). Likewise, the court may not appoint joint managing conservators (JMCs) if one parent became pregnant due to a sexual assault by the other parent, regardless of the prior relationship of the parents, under TFC (b). If the court is considering access to a child and it has been shown by a preponderance of the evidence that there is a history or pattern of family violence during the two years preceding the date of filing the lawsuit, then the court may not allow a parent to have access to the child unless the court finds that: access would not endanger the child s physical health or emotional welfare and would be in the best interest of the child; and the court renders a possession order to protect the safety and well-being of the child and any other person who has been the victim of family violence committed by the parent, per TFC (d). A finding of a history of family violence removes the rebuttable presumption that the appointment of parents as JMCs is in the best interest of the child, per TFC If a conservator has been convicted of, or placed on deferred adjudication for, indecency with a child, sexual assault, or aggravated sexual assault, then this is a material and substantial change of circumstances sufficient to justify a temporary order and modification of an existing order regarding conservatorship or possession and access to a child, per TFC (a). A party may obtain a protective order if there are facts and circumstances of family violence, per TFC , (a) and (b), (a)(2), and (b) and (c). G. Sex Offender Registration State and federal law both impose significant restrictions and requirements on sex offenders. 1. People convicted of certain sexual offenses may be required to register, per Texas Code of Criminal Procedure Art The Adam Walsh Act (42 USCS 16901) states, among other things, that anyone who must register as a sex offender gives up any right of electronic privacy, requiring them to make their computer, other electronic communication or data storage devices or media available to police examination without a warrant at any time. It also creates a national sex offender registry to be run by the FBI, with relevant information on each person. It funds a series of pilot programs, lasting up to three years, to tag sex offenders 12

21 with tracking devices that would let them be monitored in real time. The devices include a GPS downlink (to provide exact coordinates), a cellular uplink (to transmit the coordinates to the police), and two-way voice communications. Additionally, the duty to register is imposed for life for most sex offenses. 3. During the 82 nd Session the Legislature passed SB 198 which would exempt sex offender registration in cases where the defendant was not more than four years older than the victim, and the victim was at least 15 years of age. 4. Recently, in Hall v. State, No CR, 2012 (Tex. App. - Texarkana, February 6, 2013), LEXIS 1057, pet. filed., the Texarkana Court of Appeals held that a defendant s conviction for failure to register as a sex offender in 2010 should be set aside because in 1988 he received an early discharge from probation pursuant to Art (7) (now 20) Tex. Code Crim. Proc. The court held that such an order amounted to judicial clemency and since Hall s conviction was set aside prior to the enactment of the sex offender registration act in 1991, he could not be required to register in The Texarkana court applying the principles pronounced in Cuellar v. State, 70 S.W.3d 815 (Tex. Ct. Crim. App. 2002), held that once the trial court judge signed the Article order, the felony conviction disappears, except in circumstances not applicable to our case. Hall at 820. In 1997, the Legislature amended Art Tex. Code Crim. Proc. to specifically exclude defendants convicted of a sex offense who were required to register from being able to receive this judicial clemency. III. INDIRECT CRIMINAL CONSEQUENCES Two major indirect criminal consequences of convictions are conditions attached to probation and enhanced punishment for subsequent offenses. A. Conditions of Probation 1. Courts have broad power to impose conditions upon probationers. A court may impose any condition 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. Every criminal practitioner 13 knows that conditions may include a requirement that the probationer not consume alcohol during the period of probation, that one attend drug or alcohol treatment programs, perform community service, or attend any programs that the court deems appropriate. They may also, however, include a prohibition against using a computer or accessing the internet for the period of probation. See TEX. CODE CRIM. PROC. Art (a); United States v. Crandon, 173 F.3d 122 (3d Cir. 1999). One extreme example of a condition of probation was discussed in Bennett v. State, 665 S.E.2d 365 (Ga. App. 2008). In Bennett, the court indicated that until Georgia law was changed in 2006, a defendant convicted of aggravated child molestation [could be ordered] to undergo chemical castration as a special condition of probation. Bennett, 665 S.E.2d at 386. Similarly, a Louisiana case holds that certain offenders are not eligible for probation or parole unless certain conditions, such as sterilization, are imposed... State v. Dagenhart, 908 So.2d 1237, 1242 (La. App. 2d Cir. 2005). A local Texas judge recently ordered a probationer not to procreate during her term of community supervision. Fortuitously, the probationer was pregnant at the time of her sentencing! 2. There are some limitations on the conditions a court may impose, however: A Texas case holds that courts have the power to impose conditions of probation which are reasonably related to the treatment of the probationer and the protection of the general public. Fielder v. State, 811 S.W.2d 131, 134 n.2 (TEX. CRIM. APP. 1991). By contrast: To be found invalid, a condition of community supervision must: (1) have no relationship to the crime; (2) relate to conduct that is not in itself criminal; and (3) forbid or require conduct that is not reasonably related to the future criminality of the defendant or does not serve the statutory ends of probation. Belt v. State, 127 S.W.2d 277, 281 (TEX. APP. FORT WORTH 2004). In Texas, however, it is important to note that a defendant must complain at trial to conditions he finds objectionable in order to preserve the error on appeal. Speth v. State, 6 S.W.3d 530, 534 (TEX. CRIM. APP. 1999).

22 B. Punishment Enhancement A criminal conviction can have a serious impact on an offender s punishment, both for the current offense and for future offenses. Unsurprisingly, the circumstances and features of a criminal act can profoundly affect the offender s punishment for that act; what is surprising is the extent to which this is true: 1. Current offense a. Allegations that the offense occurred in a drug free zone can result in a significantly increased sentence, and this sentence may not be run concurrently with punishment for a conviction under any other criminal statute. See TEXAS HEALTH AND SAFETY CODE b. Defendants convicted of certain offenses (including felonies in which a deadly weapon was used or displayed) are not eligible for mandatory supervision (parole), per TEX. GOV. CODE Provisions such as these can add years of actual jail time spent in prison. There are two ways in which prior criminal convictions can affect future punishment: a. When faced with a range of punishments for a given offense, a judge may consider an offender s past criminal acts when deciding the severity of his sentence. This is true even if the offender was not convicted of the past criminal act, provided the judge finds sufficient evidence to believe that he is guilty. TEX. CODE CRIM. PRO. Art (a)(1). b. Some statutory schemes allow increased punishment or create entirely new offenses for repeat offenders. c. A conviction, deferred adjudication, or successfully-completed probation for misdemeanor assault family violence can be used to enhance a subsequent family violence offense to a third degree felony. TEX. PEN. CODE 22.01(b)(2). d. A previous sexual assault can be used to enhance a subsequent sexual assault so that the punishment is a mandatory life sentence. TEX. PEN. CODE In the federal system, the existence of a prior state or federal 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). Note, however, that United States v. Booker, 543 U.S. 220 (2005) made the federal sentencing guidelines advisory rather than mandatory. Subsequent cases have made clear that federal judges must place the offender and the offense on the sentencing guideline grid, but then have discretion to deviate from the guidelines (in either direction) as much as they deem appropriate. These results may not seem especially surprising or unjust, but they do illustrate the serious consequences of criminal convictions. CONCLUSION Criminal convictions and criminal allegations carry with them a wide range of serious collateral consequences, including indirect legal ramifications; financial penalties; and loss of rights and privileges. Although some of these consequences are common and intuitive, many are quite surprising. As noted earlier in this paper, offenders are often not informed of the full range of potential consequences of their convictions and, indeed, their imposition is often at the government s discretion. This lack of information, combined with uneven enforcement, means that most criminal defendants and many lawyers do not have a realistic and comprehensive idea of the consequences of a potential conviction or criminal allegation. Therefore, a significant duty should be imposed upon lawyers to inform clients about the myriad possible consequences, direct and indirect, of a criminal conviction. A state conviction can sometimes subject a defendant to a federal sentence, and the sentences may be stacked with respect to both state and federal time. 14

23 Criminal Adjudications and Possible Consequences Chapter 8 ENMESHED PENALTIES CHECKLIST Client: Last Name First name Cause No: Client Social History & Future Aspirations Prior Record Prison State Jail Prior Probation: Felony Felony D/A Misd. Misd. D/A Revocation? Immigration U.S. Citizen Lawful Permanent Resident Refugee / Asylum Noncitizen Employment Employed Looking for work Receiving unemployment Injured Disabled State License Member of a profession or trade requiring a state license? Future plans to seek license? Trade or profession: Federal License Federal employment? Federal contracts (Defense, Ag., etc.)? Security clearance? & contracts Banking or securities? Small Business Association (SBA) loans? Student Loans Housing Receiving federal student aid? Years left in school: Future plans? Own Rent Public Housing/Section 8 Stay with family (private housing) No stable housing Health Care Health insurance? Medicaid Current conditions/medications: Public Benefits TANF Food Stamps SSI SSD Medicaid Public Housing/Section 8 School lunch Child Custody Ages: Sole Joint Divorce? CPS? Relative Placement Plans to adopt/foster? Firearms Own Possess How important is it for you to own a gun? High Medium Low N/A Driving Regular DL Commercial Suspended DL Surcharges Occupational DL in past 10 years? Civil Rights Public Office Voting Jury Service Executor Currently or plans to be executor or administrator of an estate in probate court? Military Future plans? Branch: Active Duty Hon. Discharge Dishon. Discharge Travel Frequently out of city Frequently out of state International travel Family in another country Civil Liability Restitution Asset forfeiture Civil Suit Insurance police? Scope of employment? Rehabilitation Expunction Non-Disclosure Sealing (Juv) Treatment (drugs, alcohol, violence) Offense Specific Felony Misdemeanor Could the offense be enhanced on 2 nd /3 rd offense? Could conviction trigger repeat / habitual mandatory minimum sentence enhancement upon next offense? Is this a crime of moral turpitude? Is this a drug related felony offense? Does the offense trigger sex offender registration? Would it be a business necessity to terminate employment? Would conviction trigger a driver s license suspension? Would conviction trigger a DPS surcharge? Would conviction trigger a deadly weapon finding? Check immigration consequences using Immigration Consequences of Crimes Summary Checklist: Criminal inadmissibility? Criminal deportation? Criminal bars on obtaining US citizenship? Criminal bars on asylum? Criminal bars on waiver/cancellation of removal? 15

24 Criminal Adjudications and Possible Consequences Chapter 8 DOES THE CONVICTION DIRECTLY RELATE TO THE OCCUPATION? PROFESSION DESCRIPTION OF THE CRIMINAL OFFENSE AIR CONDITIONING AND REFRIGERATION CONTRACTORS X X X X REGISTERED ACCESSIBILITY SPECIALISTS X X X X X AUCTIONEERS X X X X X X BARBERS X X X BOILER INSPECTORS X X X X COMBATIVE SPORTS X X X COSMETOLOGISTS X X COURT INTERPRETERS X X X ELECTRICIANS X X X ELEVATOR INSPECTORS X X X X INDUSTRIALIZED HOUSING AND BUILDINGS X X X Personnel Employment Services X X X X POLYGRAPH EXAMINERS AND TRAINEES X X X X X X X X X X PREPAID LEGAL SERVICES X X X X PROPERTY TAX CONSULTANTS X X X X X PROPERTY TAX APPRAISERS X X X X X X X X X X X PROPERTY TAX ASSESSOR COLLECTORS X X X X X SERVICE CONTRACT PROVIDERS X X STAFF LEASING SERVICES X X X X X TALENT AGENCIES X X X X X TEMPORARY COMMON WORKER EMPLOYER X X X X X X X TOW TRUCK OPERATORS AND PERMIT HOLDERS X X X X X X USED AUTOMOTIVE PARTS RECYCLERS AND EMPLOYEES X X X X X X VEHICLE PROTECTION PRODUCT WARRANTORS X VEHICLE STORAGE FACILITY OWNERS AND EMPLOYEES X X X X X X WATER WELL DRILLERS X X X X X WATER WELL PUMP INSTALLERS X X X X X X WEATHER MODIFICATION X X X 16

25 Criminal Adjudications and Possible Consequences Chapter 8 KEY: DESCRIPTION OF THE CRIMINAL OFFENSE 1 Crimes involving fraud or deceptive trade practices 2 Crimes involving prohibited sexual conduct or involving children as victims 3 Crimes against property such as theft or burglary 4 Crimes against the person such as homicide, kidnapping and assault 5 Crimes involving bribery 6 breach of fiduciary duty 7 Crimes involving the receipt, sale or other distribution of illegal goods or substances, including stolen property, illegal weapons, drugs, drug paraphernalia, and the like 8 Crimes involving illegal manufacture or delivery of a controlled substance 9 Misrepresentation 10 Extortion 11 Bribery 12 Crimes involving misconduct in the participation in or promotion of combative sports events 13 Crimes involving fraud or breach of a fiduciary duty would disqualify a promoter, manager, referee, judge, timekeeper or matchmaker 14 Perjury 15 Crimes involving promotion of prostitution. 16 Crimes involving breach of computer security 17 crimes of other falsification such as tampering with physical evidence or governmental record 18 other corrupt influence such as obstruction, retaliation, or tampering with a witness 19 Crimes involving abuse of office such as civil rights violations, official oppression, abuse of official capacity, or misuse of official information 20 Crimes involving illegal use or possession of controlled substances 21 Crimes obstructing governmental operations such as failure to report sexual assault of a child or failure to report a felony 22 Crimes involving stealing from an employer 23 tax fraud 24 Crimes involving insurance fraud 25 Crimes involving labor or employment, including harmful employment and theft of service 26 Crimes involving racketeering, organized crime, or criminal influence 27 Crimes involving intoxication and operating a motor vehicle, including driving while intoxicated, intoxication assault, and intoxication manslaughter 28 Crimes involving environmental law violations 29 Criminal Trespass In addition to the specific crimes listed below, multiple violations of any criminal statute should always be reviewed, for any license type. Multiple violations may reflect a pattern of behavior that renders the applicant unfit for the license. 17

26 Criminal Adjudications and Possible Consequences Chapter 8 CRIMINAL INADMISSIBILITY GROUNDS Will or may prevent a noncitizen from being able to obtain lawful status in the U.S. May also prevent a noncitizen who already has lawful status from being able to return to the U.S. from a trip abroad in the future. Conviction or admitted commission of a Controlled Substance Offense, or DHS reason to believe that the individual is a drug trafficker Conviction or admitted commission of a Crime Involving Moral Turpitude (CIMT), which category includes a broad range of crimes, including: Crimes with an intent to steal or defraud as an element (e.g., theft, forgery) Crimes in which bodily harm is caused or threatened by an intentional act, or serious bodily harm is caused or threatened by a reckless act (e.g., murder, rape, some manslaughter/assault crimes) Most sex offenses Petty Offense Exception for one CIMT if the client has no other CIMT + the offense is not punishable >1 year + does not involve a prison sentence > 6 mos. Prostitution and Commercialized Vice Conviction of two or more offenses of any type + aggregate prison sentence of 5 yrs. CRIMINAL BARS ON 212(h) WAIVER OF CRIMINAL INADMISSIBILITY based on extreme hardship to USC or LPR spouse, parent, son or daughter Conviction or admitted commission of a Controlled Substance Offense other than a single offense of simple possession of 30 g or less of marijuana Conviction or admitted commission of a violent or dangerous crime will presumptively bar 212(h) relief In the case of an LPR, conviction of an Aggravated Felony [see Criminal Deportation Gds], or any Criminal Inadmissibility if removal proceedings initiated before 7 yrs of lawful residence in U.S. CRIMINAL BARS ON ASYLUM based on wellfounded fear of persecution in country of removal OR WITHHOLDING OF REMOVAL based on threat to life or freedom in country of removal Conviction of a Particularly Serious Crime (PSC), including the following: Aggravated Felony [see Criminal Deportation Gds] All aggravated felonies will bar asylum Aggravated felonies with aggregate 5 years sentence of imprisonment will bar withholding Aggravated felonies involving unlawful trafficking in controlled substances will presumptively bar withholding of removal Violent or dangerous crime will presumptively bar asylum Other PSCs no statutory definition; see case law CRIMINAL BARS ON 209(c) WAIVER OF CRIMINAL INADMISSIBILITY based on humanitarian purposes, family unity, or public interest (only for persons who have asylum or refugee status) DHS reason to believe that the individual is a drug trafficker Conviction or commission of a violent or dangerous crime will presumptively bar 209(c) relief Immigration Consequences of Crimes Summary Checklist * Immigrant Defense Project CRIMINAL DEPORTATION GROUNDS Will or may result in deportation of a noncitizen who already has lawful status, such as a lawful permanent resident (LPR) green card holder. Conviction of a Controlled Substance Offense EXCEPT a single offense of simple possession of 30g or less of marijuana Conviction of a Crime Involving Moral Turpitude (CIMT) [see Criminal Inadmissibility Gds] One CIMT committed within 5 years of admission into the US and for which a prison sentence of 1 year or longer may be imposed Two CIMTs committed at any time not arising out of a single scheme Conviction of a Firearm or Destructive Device Offense Conviction of a Crime of Domestic Violence, Crime Against Children, Stalking, or Violation of Protection Order (criminal or civil) Conviction of an Aggravated Felony Consequences, in addition to deportability: Ineligibility for most waivers of removal Permanent inadmissibility after removal Enhanced prison sentence for illegal reentry Crimes included, probably even if not a felony: Murder Rape Sexual Abuse of a Minor Drug Trafficking (including most sale or intent to sell offenses, but also including possession of any amount of flunitrazepam and possibly certain second or subsequent possession offenses where the criminal court makes a finding of recidivism) Firearm Trafficking Crime of Violence + at least 1 year prison sentence ** Theft or Burglary + at least 1 year prison sentence ** Fraud or tax evasion + loss to victim(s) >10, 000 Prostitution business offenses Commercial bribery, counterfeiting, or forgery + at least 1 year prison sentence ** Obstruction of justice or perjury + at least 1 year prison sentence ** Various federal offenses and possibly state analogues (money laundering, various federal firearms offenses, alien smuggling, failure to register as sex offender, etc.) Other offenses listed at 8 USC 1101(a)(43) Attempt or conspiracy to commit any of the above CRIMINAL BARS ON LPR CANCELLATION OF REMOVAL based on LPR status of 5 yrs or more and continuous residence in U.S. for 7 yrs after admission (only for persons who have LPR status) Conviction of an Aggravated Felony Offense triggering removability referred to in Criminal Inadmissibility Grounds if committed before 7 yrs of continuous residence in U.S. *For more comprehensive legal resources, visit IDP at or call for individual.. case support. ** The at least 1 year prison sentence requirement includes a suspended prison sentence of 1 year or more Immigrant Defense Project CRIMINAL BARS ON OBTAINING U.S. CITIZENSHIP Will prevent an LPR from being able to obtain U.S. citizenship. Conviction or admission of the following crimes bars the finding of good moral character required for citizenship for up to 5 years: Controlled Substance Offense (unless single offense of simple possession of 30g or less of marijuana) Crime Involving Moral Turpitude (unless single CIMT and the offense in not punishable > 1 year (e.g., in New York, not a felony) + does not involve a prison sentence > 6 months) 2 or more offenses of any type + aggregate prison sentence of 5 years 2 gambling offenses Confinement to a jail for an aggregate period of 180 days Conviction of an Aggravated Felony on or after Nov. 29, 1990 (and conviction of murder at any time) permanently bars the finding of moral character required for citizenship CONVICTION as defined for immigration purposes A formal judgment of guilt of the noncitizen entered by a court, OR, if adjudication of guilt has been withheld, where: (i) A judge or jury has found the noncitizen guilty or the noncitizen has entered a plea of guilty or nolo contedere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the noncitizen s liberty to be imposed THUS: A court-ordered drug treatment or domestic violence counseling alternative to incarceration disposition IS a conviction for immigration purposes if a guilty plea is taken (even if the guilty plea is or might later be vacated) A deferred adjudication without a guilty plea IS NOT a conviction NOTE: A youthful offender adjudication IS NOT a conviction if analogous to a federal juvenile delinquency adjudication 18

27 Criminal Adjudications and Possible Consequences Chapter 8 Immigrant Defense Project Suggested Approaches for Representing a Noncitizen in a Criminal Case* Below are suggested approaches for criminal defense lawyers in planning a negotiating strategy to avoid negative immimigration status of the particular client. For further information on how to determine your client s immigration status, refer gration consequences for their noncitizen clients. The selected approach may depend very much on the particular im- to Chapter 2 of our manual, Representing Immigrant Defendants in New York (4th ed., 2006). For ideas on how to accomplish any of the below goals, see Chapter 5 of our manual, which includes specific strategies relating to charges of the following offenses: Drug offense ( 5.4) Violent offense, including murder, rape, or other sex offense, assault, criminal mischief or robbery ( 5.5) Property offense, including theft, burglary or fraud offense ( 5.6) Firearm offense ( 5.7) 1. If your client is a LAWFUL PERMANENT RESIDENT: First and foremost, try to avoid a disposition that triggers deportability ( 3.2.B) Second, try to avoid a disposition that triggers inadmissibility if your client was arrested returning from a trip abroad or if your client may travel abroad in the future ( 3.2.C and E(1)). If you cannot avoid deportability or inadmissibility, but your client has resided in the United States for more than seven years (or, in some cases, will have seven years before being placed in removal proceedings), try at least to avoid conviction of an aggravated felony. This may preserve possible eligibility for either the relief of cancellation of removal or the so-called 212(h) waiver of inadmissibility ( 3.2.D(1) and (2)). If you cannot do that, but your client s life or freedom would be threatened if removed, try to avoid conviction of a particularly serious crime in order to preserve possible eligibility for the relief of withholding of removal ( 3.4.C(2)). If your client will be able to avoid removal, your client may also wish that you seek a disposition of the criminal case that will not bar the finding of good moral character necessary for citizenship ( 3.2.E(2)). 2. If your client is a REFUGEE or PERSON GRANTED ASYLUM: First and foremost, try to avoid a disposition that triggers inadmissibility ( 3.3.B and D(1)). If you cannot do that, but your client has been physically present in the United States for at least one year, try at least to avoid a disposition relating to illicit trafficking in drugs or a violent or dangerous crime in order to preserve eligibility for the so-called 209(c) waiver of inadmissibility for refugees and asylees ( 3.3.D(1)). If you cannot do that, but your client s life or freedom would be threatened if removed, try to avoid a conviction of a particularly serious crime in order to preserve eligibility for the relief of withholding of removal ( 3.3.D(2)). 3. If your client is ANY OTHER NONCITIZEN who might be eligible now or in the future for LPR status, asylum, or other relief: IF your client has some prospect of becoming a lawful permanent resident based on having a U.S. citizen or lawful permanent resident spouse, parent, or child, or having an employer sponsor; being in foster care status; or being a national of a certain designated country: First and foremost, try to avoid a disposition that triggers inadmissibility ( 3.4.B(1)). If you cannot do that, but your client may be able to show extreme hardship to a citizen or lawful resident spouse, parent, or child, try at least to avoid a controlled substance disposition to preserve possible eligibility for the so-called 212(h) waiver of inadmissibility ( 3.4.B(2),(3) and(4)). If you cannot avoid inadmissibility but your client happens to be a national of Cambodia, Estonia, Hungary, Laos, Latvia, Lithuania, Poland, the former Soviet Union, or Vietnam and eligible for special relief for certain such nationals, try to avoid a disposition as an illicit trafficker in drugs in order to preserve possible eligibility for a special waiver of inadmissibility for such individuals ( 3.4.B(5)). IF your client has a fear of persecution in the country of removal, or is a national of a certain designated country to which the United States has a temporary policy of not removing individuals based on conditions in that country: First and foremost, try to avoid any disposition that might constitute conviction of a particularly serious crime (deemed here to include any aggravated felony), or a violent or dangerous crime, in order to preserve eligibility for asylum ( 3.4.C(1)). If you cannot do that, but your client s life or freedom would be threatened if removed, try to avoid conviction of a particularly serious crime (deemed here to include an aggravated felony with a prison sentence of at least five years), or an aggravated felony involving unlawful trafficking in a controlled substance (regardless of sentence), in order to preserve eligibility for the relief of withholding of removal ( 3.4.C(2)). In addition, if your client is a national of any country for which the United States has a temporary policy of not removing individuals based on conditions in that country, try to avoid a disposition that causes ineligibility for such temporary protection (TPS) from removal ( 3.4.C(4) and (5)). * References above are to sections of our manual, Representing Immigrant Defendants in New York (4th ed., 2006). See reverse 19

28 Criminal Adjudications and Possible Consequences Chapter 8 CIVIL RIGHTS Being placed on probation, pretrial diversion, or bond supervision may affect your civil rights as follows: THE RIGHT TO VOTE Misdemeanor Probation Deferred Felony Probation Regular or Shock Felony Probation No Effect No Effect Cannot vote until discharged from sentence. THE RIGHT TO HOLD PUBLIC OFFICE Misdemeanor Probation Deferred Felony Probation Regular or Shock Felony Probation Felony DWI, Involuntary Manslaughter, Intoxication Manslaughter, or SJF No Effect No Effect Only when discharged and rights restored. Cannot hold public office. RIGHT TO SERVE ON JURY Misdemeanor Probation Felony Deferred and Regular Probation Felony DWI, Involuntary Manslaughter, Intoxication Manslaughter, or SJF No effect Exception: misdemeanor Theft, including a deferred, cannot serve until rights restored. Effected until court sets aside accusation and dismisses charges. Cannot serve. RIGHT TO KEEP AND BEAR ARMS Misdemeanor Probation Deferred Felony Probation Regular or Shock Felony Probation No effect unless charge is domestic violence. May possess firearm, ammunition, and hunt, but cannot buy additional firearms, ammunition, or carry across state lines. May not possess, ship, transport, or receive a firearm or ammunition. 20