FREQUENTLY ASKED QUESTIONS ABOUT MISDEMEANOR CASES IN TEXAS.

So you were recently arrested and charged with a misdemeanor offense. You are probably wondering “How serious is my case? What can I expect? Will I get probation? Will I have to go to jail? Will I have a permanent criminal record? How can I prevent having a conviction? What is Deferred Adjudication? What if I want a jury trial?” These are all important questions for you to be asking about your case. What follows are answers to some of the most commonly asked questions about misdemeanor offenses in Dallas and Tarrant Counties. This informational packet should give you a good idea of what to expect from the court system, and should put to rest some of your doubts and uncertainties about your case.

I WAS ARRESTED AND CHARGED WITH A MISDEMEANOR OFFENSE. HOW SERIOUS IS MY CASE?

Your case may be a Class B or Class A misdemeanor. Class B misdemeanors carry a range of punishment of up to 180 days in jail and up to a $2000 fine. Class B misdemeanors include possession of marijuana under 2 ounces, theft 50-500, criminal mischief 50-500, criminal trespass, and failure to I.D., to name a few.

Class A misdemeanors are more serious. Class A misdemeanors carry a range of punishment of up to 1 year in jail and up to a $4000 fine. Class A misdemeanors include assault, terroristic threat, burglary of a vehicle, unlawful carrying of a weapon, resisting arrest, theft 500-1500 and possession of marijuana 2 to 4 ounces, among others.

WHAT IF I WAS CHARGED WITH DRIVING WHILE INTOXICATED (“DWI” or “DUI”)?

Texas law treats DWI differently from other misdemeanor criminal offenses. If you are charged with DWI, please refer to “Frequently Asked Question About DWI in Texas” on this website.

WHAT KIND OF PUNISHMENT SHOULD I EXPECT FOR A CLASS A OR B MISDEMEANOR?

If you are guilty of the offense you are accused of, typically you can expect either probation, “deferred adjudication” or jail time.

WHAT IS PROBATION?

If you receive probation, the court convicts you and sentences you to jail time. However, rather than making you actually serve your jail time, the court “probates” your sentence. You can be placed on probation for a minimum of 6 months to a maximum of 2 years. During that period of time you will be required to report to a probation officer in person once per month. You would typically also have to submit to random drug tests and complete community service as a condition of probation. You would be required to complete a minimum of 24 hours of community service for a Class B misdemeanor or 80 hours of community service for a Class A misdemeanor.

WHAT IF I VIOLATE MY PROBATION?

If you violate your probation by failing to report, committing a new offense, giving a dirty drug test or failing to complete some other condition of probation, the prosecutor will file a motion to revoke your probation. You are entitled to a hearing at which the prosecutor must prove to the judge that you violated your probation. If the judge believes that you violated your probation, he can revoke you and make you serve your jail time in jail.

DO I QUALIFY FOR PROBATION?

The prosecutor generally considers you eligible for probation if you do not have any prior felony convictions, and if you have never been revoked off probation for a prior offense.

WHAT IS THE DIFFERENCE BETWEEN PROBATION AND DEFERRED ADJUDICATION?

“Deferred adjudication” is a special kind of probation where you are not convicted. You plead guilty but the judge does not find you guilty. Instead he “defers a finding of guilt” and places you on probation for a minimum of 6 months or a maximum of 2 years. If you complete the probation without any violations, the case is dismissed and you do not receive a final conviction. If anybody ever asks you if you were convicted of the offense, you can truthfully tell them no. Also, in most cases once your probation is complete you will be eligible to petition the court for a “non-disclosure” order, effectively sealing your record from the public.

DO I QUALIFY FOR DEFERRED ADJUDICATION?

Generally, the prosecutor will only consider offering you deferred adjudication if you have a clean record and you are charged with your first criminal offense. Dallas County prosecutors do not offer deferred adjudication probation to defendants charged with prostitution, public lewdness, indecent exposure, unlawful carrying of a weapon, burglary of a motor vehicle or theft from an employer, according to Dallas County District Attorney office policy. A defendant with a clean record charged with one of these offenses can still get deferred adjudication if he “pleads open” to the court and asks the judge to decide his sentence.

Texas law does not allow deferred adjudication for a driving while intoxicated case. A guilty plea on a DWI charge always results in a conviction. DWI is a somewhat different animal than other misdemeanor criminal offense. If you have been charged with driving while intoxicated, please refer to the Driving While Intoxicated Frequently Asked Questions on this website.

I HAVE NEVER BEEN ARRESTED BEFORE. THIS IS MY FIRST CRIMINAL CASE. CAN I GET A BETTER DEAL THAN DEFERRED ADJUDICATION PROBATION?

Very possibly yes. You may be able to get a pro-forma, or non-reporting probation. Also, in Tarrant County only, you may also qualify for a memorandum agreement. Please refer to the section “Best Possible Deals for First Time Misdemeanors” on this website to learn more.

IF I GET JAIL TIME, HOW WILL I SERVE MY TIME?

In Dallas County Jail, inmates serve their time at “3-for-1” credit. This means that you receive three days credit for every day of jail that you serve. You can serve a 30 day sentence in 10 days. Also, if you are employed, we can ask the judge to let you serve your time on “work release”. If you serve you time on work release, you would report every evening to the jail to sleep and you would be released every morning to go to work, until your sentence is served. In Tarrant County, you may also be able to serve your misdemeanor jail time on the county’s “labor detail” program.

WHAT IS LABOR DETAIL?

In Tarrant County only, if you are sentenced to less than 90 days on a misdemeanor offense, in most cases you will be able to serve your sentence on labor detail. “Labor Detail” is an eight hour day of work for the County. Typically you might be required to pick up trash in public parks, wash police cars, or sweep the floors in county buildings. Every day of labor detail counts 2 days against your jail sentence. So, if you were sentenced to 30 days in jail, you can work off your sentence in 15 days of labor detail. You are not required to perform labor detail every day. You must perform labor detail a minimum of one day per week, or in some cases 2 days per week. Labor detail is opened 7 days per week. It does not matter which day you work, so long as you work at least one day per week. You can work off a 30 day sentence by working eight weekends of labor detail.

WHAT IF I DON'T SHOW UP FOR LABOR DETAIL?

If you miss a week of labor detail, the court will usually revoke your labor detail privileges and issue a warrant for your arrest. You will lose your two-for-one time for the days you worked so far. You will only get day-for-day credit for those days worked. You will be required to serve the remainder of your sentence in jail. If you get on top of it quickly, you can hire your lawyer to talk to the judge and get your labor detail privileges reinstated. The judge may do this if you do not miss too many days. You will still probably lose your two-for-one credit for the days you already worked. If you missed too many days or waited too long to get on top of it, the judge will not reinstate your labor detail privileges. He may, however, allow you to serve the balance of your sentence on “work release”, where you check in to the jail every night to sleep and are released in the morning to go to work.

I DON'T WANT A CONVICTION. I WANT THIS CASE DISMISSED AND I WANT MY RECORD CLEAN. WHAT IS THE BEST WAY TO GO ABOUT THAT?

If it is obvious from the facts of the case that you are not guilty of the offense you are accused of, the prosecutor might agree to dismiss your case outright. Although this does not usually happen, this is the best way to get your case dismissed. If your case is dismissed in this fashion, then you are eligible to get your record “expunged” (erased). Every once in a while a prosecutor will agree to dismiss a case outright, but almost always a prosecutor will not agree to dismiss a case.

If the prosecutor does not agree to dismiss your case outright, the next best way to get your case dismissed is to receive deferred adjudication probation. If you get deferred adjudication you will not be convicted. At the end of your probation, your case will be dismissed. The court will keep a record of the case, and this record will be part of the government’s permanent criminal history of you. However, you can petition the court for a “non-disclosure” order. If the court grants the order, your record will be sealed to members of the public. Employers will not be able to find out about the offense.

Of course, if you are not guilty of the offense, you should ask for a trial. If you are found not guilty at trial, your case will be dismissed, you will be released from bond and you will be able to have your record expunged.

Oftentimes, a prosecutor will initially refuse to dismiss a case, and the defense lawyer will set the case for trial. When the case is reached for trial, the prosecutor will usually take a closer look at the facts and evidence. If the facts of the case are bad for the state, the prosecutor might agree to dismiss the case or offer a lesser-included offense plea, rather than try the case in front of a jury.

WHAT HAPPENS WHEN MY CASE IF FILED?

The District Attorney files your case by writing a one-page document called an “information.” The information accuses you of a specific offense committed on a specific date. The District Attorney files the information with the county clerk, and your case is assigned to a court. A court date is then set for you and your attorney to appear.

WILL I HAVE TO APPEAR AT THE FIRST COURT DATE?

In Tarrant County, and most other counties, you are required to appear at every court date. However, in Dallas County, in most cases your attorney can appear on your behalf until you are ready to plea. In Dallas County you are typically not required to appear until your plea date, or until your case is set for trial.

WHAT HAPPENS AT THE FIRST COURT DATE?

At the first court date, the prosecutor makes an “offer” to your attorney. In other words, the prosecutor offers to recommend a certain sentence to the court in exchange for your guilty plea. This is often referred to as a “plea bargain”.

WILL THE OFFER BE FAIR?

Your attorney’s job is to negotiate with the prosecutor and make sure that the offer is fair and reasonable. Your attorney will counsel you about whether he thinks the offer is fair.

DO I HAVE TO DECIDE ON THE FIRST COURT DATE WHETHER OR NOT TO ACCEPT THE STATE'S OFFER?

No. On the first court date, your attorney can sign a document requesting a continuance, and can pass your case to an “announcement” setting. You will not be required to accept or reject the state’s offer until the announcement setting.

WHAT HAPPENS IF I WANT TO ACCEPT THE STATE'S OFFER AND PLEAD GUILTY?

If you want to accept the state’s offer and plead guilty, inform your attorney that you have chosen to accept the state’s offer. At the announcement setting, your attorney will announce “plea”, and will reset your case for a plea setting. At the plea setting, the judge will accept your guilty plea and sentence you in accordance with the plea agreement. You will begin to serve your sentence on the day of the plea. If your plea is for probation, you will meet with a probation officer that morning.

IS THE JUDGE REQUIRED BY LAW TO ACCEPT THE PLEA AGREEMENT?

No. The judge, at his own discretion, can reject the plea agreement and sentence you anywhere within the range of punishment. If the judge gives you a greater sentence than what the plea agreement called for, he is said to “bust the plea”. If the judge “busts the plea”, you can withdraw your guilty plea and ask for a trial. Obviously, it is in the court’s best interest to allow prosecutors and defense lawyers to work cases out by plea agreement rather than try every case. For this reason, the judge will almost always follow the plea agreement. The judge will almost never bust the plea.

DO I HAVE TO WAIT UNTIL THE THIRD COURT DATE TO PLEAD GUILTY?

No. If the state makes a plea offer that is acceptable to you, you can usually plead guilty and be sentenced on the first court date. Your attorney will require that he be paid in full prior to your plea. If you are on a payment plan with your attorney, you can expect that your attorney will reset your case for a future plea date to give you time to finish paying his legal fee.

WHAT HAPPENS IF I DO NOT WANT TO ACCEPT THE STATE'S OFFER AND PLEAD GUILTY?

If you chose to reject the state’s offer, you have two choices. You can plead not guilty and have a trial. Or you can enter an “open plea”.

WHAT IS AN "OPEN PLEA"?

An “open plea”, or “pleading open to the court” is when you plead guilty to the judge without a plea agreement. The judge decides your sentence after hearing evidence and arguments. Your attorney can present evidence or have witnesses testify on your behalf. After holding a hearing, the judge will decide your punishment.

WILL THE JUDGE GIVE ME A BETTER DEAL THAN THE PROSECUTOR'S OFFER?

If you enter an open plea, the judge might give you a better deal, or the judge might give you a worse deal. The judge can sentence you anywhere within the range of punishment. The judge can “defer” a finding of guilt and give you deferred adjudication probation, or the judge can convict you and make you serve jail time. As long as the judge’s sentence falls within the range of punishment allowed by law, you have no right to appeal.

IF I PLEAD "OPEN", CAN THE JUDGE DISMISS MY CASE IF I TELL HIM WHAT HAPPENED?

No. The judge does not have the authority to dismiss a case or reduce your charges. Only the prosecutor can outright dismiss your case.

WHAT IF I DID NOT COMMIT THE CRIME I AM ACCUSED OF?

If you are falsely accused of a crime, you should plead “not guilty” and request a trial.

HOW SOON WILL MY CASE BE TRIED?

Once you announce “trial”, your case will be set for trial 30 to 90 days in the future. On your trial date, your case will be set for trial with 10 to 20 other cases. The court will try the oldest case first and work its way back. Your case may be tried on your trial setting date, or your case may reset to another trial date, depending on how old your case is and how backed up the court’s docket is. You will be required to attend every trial docket setting until your case is reached for trial. It is not unusual for misdemeanor cases to be tried a year or more after the date of arrest.

WILL MY CASE BE TRIED BY A JURY?

The prosecutor has a right to demand that your case be tried by a jury. Tarrant County prosecutors almost always demand a jury trial. However, in Dallas County, the prosecutor will sometimes waive his right to a jury. This means that in Dallas County you may be able to choose to have your case tried by a jury or by the judge.

SHOULD I CHOOSE TO LET THE JUDGE TRY MY CASE INSTEAD OF A JURY?

This depends on the nature of your case, and on which judge’s court you are in. Your attorney will counsel you on whether he believes you would be better off with a jury or with the judge.

WHAT IF I AM FOUND "NOT GUILTY"?

If you are found not guilty, your case is over. You are released from bond and you have no further obligations to the court or to the county. Your case is dismissed and you are eligible to have your record “expunged” (erased).

WHAT IF I AM FOUND GUILTY?

If you are found guilty, the court holds a hearing to determine your punishment. You can chose to have either the judge or the jury assess your punishment.

CAN I GET PROBATION IF I AM FOUND GUILTY AT TRIAL?

If you are found guilty, you can get probation so long as you do not have a felony conviction. However, you cannot get deferred adjudication probation following a guilty verdict at trial. You can only get deferred adjudication if you plead guilty. A guilty verdict at trial always results in a conviction.

I WAS ARRESTED IN DALLAS COUNTY. WHEN I BONDED OUT OF JAIL, I WAS GIVEN A NOTICE TO APPEAR ON THE 2ND FLOOR OF THE FRANK CROWLEY COURT BUILDING AND LOOK AT THE BULLETIN BOARD FOR MY NAME. WHAT IS THIS ALL ABOUT?

In Dallas County, when you are released from jail you will typically receive a notice to appear in court to check the misdemeanor bulletin board. On the day you are instructed to appear, if your case has been filed your name will appear on the bulletin board, instructing you to go to a courtroom. If your case has not yet been filed, your name will not appear on the bulletin board. You will be required to go to the clerk’s desk and sign a letter indicating that you appeared as instructed. The clerk will tell you to come back in approximately two weeks and check the bulletin board again.

DO I HAVE TO APPEAR AND CHECK THE BULLETIN BOARD? CAN'T I JUST CALL IN INSTEAD?

You cannot call in. However, if you hire an attorney the attorney can check the bulletin board and sign your letter for you, and you can be excused from appearing. In Dallas County, your attorney can appear for you until your case is either set for a plea or set for trial. This is only true for misdemeanor cases in Dallas County. In every other local Texas County, and for felony cases in Dallas County, the defendant is required to personally appear at every court date.

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