Restitution and Criminal Punishment in Texas: How Do They Work?
CRIMINAL DEFENSE ATTORNEY EXPLAINS RESTITUTION FOR CRIMINAL LAW CASES
Many crimes carry financial losses. Victims are often the ones forced to endure these financial losses, including the loss of personal property, medical costs after an assault, or lost income. Under the Mandatory Restitution Act of 1996, the courts can determine whether restitution is warranted, and the amount of restitution the criminal defendant must pay to the victim or the victim’s family in criminal law in Texas.
WHAT DOES RESTITUTION CONSIST OF?
Restitution in the criminal justice system refers to the funds that the defendant must pay to the victim for any financial harm caused by their actions. The court has the discretion and authority to force a defendant to pay restitution as part of his or her criminal punishment under criminal law. Some crimes carry a mandatory restitution, but this depends on the state. The high courts have backed the decision to order defendants to pay restitution. In fact, a case in 2010, where the U.S. Supreme Court ruled that the state correctly ordered restitution, proves such in criminal law.
Usually, violent felony offenses include restitution, but other cases can involve restitution if there are severe financial losses. Restitution might cover the out-of-pocket costs for the victim under criminal law, including:
Insurance deductibles and copays
Costs related to the criminal law case (e.g., travel, child care, etc.)
Lost or damaged property
Restitution is different from personal injury compensation. A victim will not receive pain and suffering or any form of compensation for his or her emotional distress. Instead, these damages only apply to what the victim physically paid for; usually, a receipt or bill is necessary to show the courts that the amounts are justified under criminal law in Texas.
WILL RESTITUTION BE ORDERED IN MY CRIMINAL LAW CASE?
It is hard to predict what the courts will do, but restitution is more likely in two situations:
The victim has substantial proof of financial losses. If the victim has evidence of financial losses, and he or she can justify every loss claimed, the courts might order restitution to recover those costs.
A violent crime has occurred, and the request for restitution ordered. Sometimes, the courts wait for the prosecution to issue a request for restitution. Other times, the courts offer mandatory restitution in extremely violent cases. For example, the brutal beating of a victim could result in restitution automatically – regardless of whether the prosecution submits a request under criminal law.
FULL VERSUS PARTIAL RESTITUTION
When restitution is ordered, the courts look at the defendant’s ability to pay. Obviously, if the accused has no way to pay the losses, it is hard to force them to do so. So, the court might reduce the amount until the offender can pay in full. Sometimes, the courts will still issue restitution in full but set monthly payments so the offender can pay off the balance in a specific amount of time under criminal law.
You should note that, if you are on probation or parole and have a restitution payment schedule, missing a payment could result in a revocation of your probation or parole. Typically, timely payments are part of your release conditions in criminal law.
CONSULT WITH A CRIMINAL DEFENSE ATTORNEY ABOUT POSSIBLE RESTITUTION
Restitution is ordered upon conviction, and is part of your criminal punishment. Therefore, you may have jail time and other penalties in addition to restitution. To avoid these harsh penalties, speak with a criminal defense attorney.
Sealing a Criminal Record Versus Expunging the Record
SHOULD YOU SEEK EXPUNGING OR SEALING YOUR CRIMINAL RECORD? A CRIMINAL DEFENSE LAWYER EXPLAINS.
Often, sealing and expunction are confused for one another, but these are two very different processes with varying qualifications required under criminal law. If you seal a criminal record, you are engaging in judicial proceedings that will limit others’ access to the file. The record still exists, and certain parties could access it, but it is sealed from most individuals. An expunction (expungement), on the other hand, deletes the criminal record entirely under criminal law.
Only certain circumstances allow for a criminal record to be sealed, and if you do have a record sealed, it will not appear on a regular criminal background check.
The USA does not have a statute that applies to expunction; therefore, it is tough to perform a successful expunction of any criminal arrests. If you have been convicted of a crime, you cannot expunge your record in the state, regardless of the circumstances under criminal law.
CAN YOU SEAL A CRIMINAL RECORD?
Yes, you can. However, Statutes Section 32A-2-26 strictly governs it. A record can only be sealed if it is a juvenile criminal record under criminal law. Your criminal defense attorney must petition the court, and then your files can be sealed after the court determines that the juvenile is not a delinquent offender.
If you are an adjudicated delinquent, you can still seal your juvenile criminal record, but your defense attorney must file a motion. You are required to wait two years before the records are sealed. There must also be no further convictions of a felony or misdemeanor in that two-year waiting period to qualify under criminal law.
You can only apply for a record sealing if you are 18 years of age, or if there is just cause for sealing the record before reaching 18. Your sealed record is treated as if it were never there.
EXPUNGING CRIMINAL ARREST RECORDS
While you cannot expunge a criminal conviction or seal an adult criminal conviction, you may be able to expunge a criminal arrest record. You can petition the department to expunge the arrest information, but only if it was a misdemeanor offense that did not involve moral turpitude under criminal law.
While there is no statute in place for record expunction, there are several questions in front of the Supreme Court regarding the matter. Hopefully, an ordinance will be created that specifically addresses record expunction under criminal law.
In conclusion, sealing is only available for a juvenile criminal record, and only after the waiting period has been completed with no further crimes committed by that juvenile. A record expunction is available for an adult, but only for arrest records and minor crimes. An adult must prove that he or she was innocent at the time of the arrest to qualify for record expunction.
WOULD YOU LIKE TO CLEAR UP A CRIMINAL RECORD?
If you have a juvenile criminal record that is affecting your life, you may qualify for a record seal under criminal law.
What is a Criminal Writ?
CRIMINAL DEFENSE ATTORNEY AND CRIMINAL CASE WRITS
Most criminal defendants will never see a writ, but there are a select few that do. A writ is a formal document or order that comes from a higher court and directs the lower-level court to take action in criminal law. Writs in criminal cases are seen in appeals. While the defendant only has one chance to appeal, it has multiple opportunities to present writs.
A writ from the higher court is difficult to obtain, and it involves advanced legal knowledge that only a criminal defense attorney possesses. If you are considering an application for a writ, it is imperative that you speak with a criminal defense attorney. The procedures for writs are highly involved; to ensure success, you need someone who understands case criminal law.
EXPLORING THE DIFFERENT TYPES OF STATE AND FEDERAL-LEVEL WRITS
The federal court system deploys only a handful of writs today, and many have been abolished slowly over the years. Writs that are still acceptable in federal court include:
Writs of Certiorari – This writ permits a review of your case in criminal law.
Writs of Habeas Corpus – Your detention is challenged in this form of writ.
Writs of Injunctions or Prohibition – This writ can compel or outright forbid actions by the government or lower-level court.
Writs of Error Coram Nobis – This writ sets aside the lower court’s conviction in criminal law.
State courts have different views on writs, and some take notice of the federal court’s approach when designing their writs. The State Court of Appeals does have similarities to the federal writs. They recognize federal writs and deploy others that are necessary to complete the exercise of their authority. Therefore, if a writ is necessary for the court to exercise its power over the government or lower courts, they will use it.
The USA recognizes writs of certiorari, injunctions, habeas corpus, and prohibition. Also, it allows additional writs like:
Writs of Attachment – This writ allows the seizure of a person or a person’s property.
Writs of Capias – This writ gives permission to issue a warrant for arrest in criminal law.
Writs of Fieri Facias – This writ gives the government authority to seize property and auction it for debt.
Writs of Venire Facias – This writ summons jurors to appear in court.
OTHER EXTRAORDINARY WRITS
The Court of Appeals also handles extraordinary writs that are needed to exercise jurisdiction in criminal law. However, these are dire measures, and the courts only grant a writ when they feel that there is no other remedy. Courts adjudicate writs quickly compared to how fast they adjudicate appeals. If a defendant is wronged in a lower level court, he or she (through an attorney) can request a writ.
Some common reasons to request a writ before an appeal include:
Inadequate defense or inappropriate objections over the errors of the case in criminal law.
An issue of urgency in the case.
The attorney did not investigate the defense.
The judgment has not been entered by the trial criminal court.
SPEAK WITH A CRIMINAL DEFENSE ATTORNEY ABOUT YOUR ELIGIBILITY FOR A WRIT
Writs are incredibly complex, and even harder to get from the appeals court. Therefore, you need a criminal defense attorney who can represent your case and help you receive a writ in criminal law.
Can I Receive Immunity for an Exchange in Testimony?
CRIMINAL DEFENSE LAWYERS DISCUSS OFFERING TESTIMONY IN EXCHANGE FOR IMMUNITY IN CRIMINAL CASES
It is your Constitutional right to remain silent when police or prosecutors ask information that forces you to self-incriminate yourself in criminal law.
However, you might be asked to provide information that is incriminating in return for immunity. Offering protection is a prosecutor’s way to override your privilege and access information you know, but also protects you against self-incrimination.
Note that in this post, you are only learning about the types of immunity you can receive. By no means does it constitute legal advice, and we do not necessarily suggest taking immunity in exchange for your testimony. Instead, you must always consult with a criminal defense attorney to see if immunity is best for your case and the consequences of testifying in criminal law.
TRANSACTIONAL IMMUNITY: COMPLETE PROTECTION
Out of the two types of immunity from prosecution offered, transactional is the broadest and most complete. Anything mentioned in your testimony becomes protected. That is why transactional immunity is often referred to as “blanket” immunity in criminal law.
Here are a few things to know about transactional immunity:
You cannot be prosecuted for admittance to criminal activity. If during your testimony you must admit to crimes, the prosecution cannot charge you with a crime or any crimes related to the information you say in that statement in criminal law.
Prosecutors can seek evidence elsewhere. While you have broad immunity, do not think that you would not be prosecuted. Prosecutors can learn elsewhere about your actions in a crime, gather evidence, and charge you with that crime later, especially if the crime is unrelated to the events you testify to in criminal law.
Prosecutors rarely offer such generous immunity. Rarely will you see a prosecutor offer this generous form of immunity. They do not want to allow a person to get away with a crime or escape punishment. Therefore, they might provide another type of immunity or no immunity in criminal law.
DERIVATIVE USE IMMUNITY
Also referred to as “use and derivative use” immunity, this is a common form of immunity issued by state prosecutors. If they decide that your testimony is worthwhile, they could extend derivative use immunity, but the scope of this protection is much narrower in criminal law.
The prosecution cannot use your statements or evidence that derives from your statements against you in a prosecution. However, there is more to this form of immunity than meets the eye:
Prosecutors can obtain independent evidence. During your testimony, if you indicate or hint that you played a role in the crime, prosecutors have the right to seek independent evidence. That independence evidence is not produced from your testimony, which gives them the right to prosecute you in criminal law.
Prosecutors might find another witness against you. Immunity for testimony becomes a vicious cycle at times. You not only receive protection, but the prosecution can also find a witness who will testify against you in exchange for immunity in criminal law.
Stipulations always apply. Typically, stipulations apply to all types of immunity. Therefore, it is important to review these stipulations, have them in writing, and have a criminal defense attorney by your side to ensure these stipulations do not increase the likelihood you will be charged with a crime too.
DO NOT ACCEPT IMMUNITY UNTIL YOU SPEAK WITH AN ATTORNEY
When prosecutors wave immunity in front of you, you might be tempted to take it. They might even tell you that the offer goes away if you speak to an attorney in criminal law.
Never accept an offer of immunity in exchange for your testimony without consulting an attorney. A criminal defense lawyer is better equipped for negotiating such deals and ensuring that you cannot be charged or arrested in the future based on what you testify to in criminal law.