Texas Criminal Defense: What is an Expunction?

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We get a lot of phone calls from people who want to get an expunction of their criminal records.  What most of them really want is to have their criminal records sealed.  The expunction statutes were created to allow people who were wrongly arrested or charged an opportunity to have all the government records of their arrest and subsequent prosecution destroyed.

To qualify for an expunction, the person must have been arrested and not merely investigated.  This does not mean that they have actually been taken into custody by the police, but that they have submitted to the authority of the courts.

There are four general categories for expunction:

  • Acquittals and pardons;
  • Dismissals and no-bills;
  • Discretionary expunctions; and
  • Identity theft.

Each of these has its own rules for determining if someone is entitled to an expunction.  We will discuss each individually in future blogs.  There are also other categories for which a person may get an expunction not included in Chapter 55 of the Texas Code  Procedure.

A person is not entitled to an expunction if the person was arrested for contempt of court, a writ of attachment or violation of parole.  The expunction must be for a new criminal charge.  Also they are not able to get an expunction if they are acquitted of a charge but were convicted or remain subject to prosecution for any charge arising out of the same criminal incident.

If you believe that you may be eligible for an expunction, visit an attorney for assistance.

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Texas Divorce: What is Community Property Versus Separate Property?

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If you are undergoing a divorce in Texas, one of the primary issues that must be determined is how your property will be divided.  That does not mean that all property will be divided.  Some of your property may be determined to be your separate property and will remain your sole property.  The basics on how to determine the difference between community and separate property are below.

Separate Property

A person’s separate property consists of property owned or claimed before the marriage; property acquired by the person during the marriage by gift, devise or descent; and the recovery for personal injuries sustained during the marriage (except for loss of earning capacity).  If one spouse makes a gift of property to the other spouse, the gift is presumed to be separate property and will include all the income and property that may arise from that property.

Community Property

Community property consists of property acquired during the marriage that is not deemed to be separate property.  At the time of a divorce, all property is presumed to be community property unless it is established as separate property by clear and convincing evidence.

Conclusion

It is always best to try and work the division of property out with your spouse.  However, if you are going through a divorce, make sure that you have an expert review the status of all your property prior to agreeing to any division.  This way you will understand what position you are in.

Does My Employer Have Insurance To Cover My On The Job Accident?

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Texas is about the only state that you may need to ask this question.  Texas handles work related accidents different from all the other states.  In Texas they allow employers to decide if they are going to use the state system for work injuries, or one that the employer choses.  If the employer selects to use the state system, they are considered to be a subscriber to the Texas Workers’ Compensation system.  If the employer selects another type of insurance or they have none at all, they are a non-subscriber to the Texas Workers’ Compensation system.

Employers who are subscribers to the Texas Workers’ Compensation system are regulated by the Division of Workers’ Compensation.  The state regulates medical and indemnity (cash) benefits.  Disputes between an injured worker and their insurance carrier are resolved at a field office of the Division of Workers’ Compensation.  In exchange for being regulated by the state, employers are protected from claims of negligence for their employees work related accidents.  The only exception is claims for gross negligence resulting in death.

Employers who select to be non-subscribers may purchase any type of insurance they desire.  However, in doing this they may be liable for any negligence in causing their employees work related injuries.

Subscribers know what the benefit amount may be paid to their injured employees.  But, non-subscribers can be sued for pain, suffering, future medical and even punitive damages.

If you or a loved one has been injured in a work related accident and you don’t know if the employer is a subscriber or a non-subscriber, contact an attorney who handles workers’ compensation claims and they can look them up for you.