Monthly Archives: September 2016

What is the Extreme Hardship Waiver in Immigration?

By Peek & Toland on September 30, 2016

The extreme hardship waiver may help you overcome certain grounds of inadmissibility to the United States if you can prove a relative will face tough times in the country without you.

If you have been living illegally in the United States for more than a year, it’s possible to become a legal resident once you have left the country and served a 10-year re-entry ban.

A decade is a long time to be away but in some cases, immigrants who claim a family member may suffer extreme hardship and avoid the 10-year banishment rule by receiving an extreme hardship waiver or a “601 waiver.”

Explaining the extreme hardship waiver in immigration

The extreme hardship waiver can help arrivals to the United States

Under the existing immigration laws, certain undocumented immigrants – notably the child or a spouse of a U.S. Citizen or a permanent resident, are eligible for immigration visas to leave the U.S. for an interview at the American consulate in their country.

However, when that immigrant returns to their own country, he or she could face a three or 10-year-ban from entering the U.S. again.

Exemptions have been in place to allow some undocumented individuals to waive the ban.

What Does USCIS Base its Extreme Hardship Waiver Decision on?

U.S. Citizenship and Immigration Services carefully considers the needs of the barred individual’s immediate family members. While obtaining a waiver based on the grounds of inadmissibility will go a long way to deferring a deportation, it’s certainly no guarantee that the beneficiary will secure lawful residency.

From 2013 onwards, the provisional waiver is applicable while an immigrant was in the U.S. Before then, if you were an undocumented immigrant you had to depart the United States for the consulate interview. You then had to apply for the waiver. The 2013 waiver is only valid for spouses and children of U.S. citizens.

What is the Definition of Extreme Hardship?

Extreme hardship is when your absence leads your relative to experience greater difficulties than if you remained. It has to be a tangible detriment. It’s not enough that your relative will miss you.

A relative’s serious medical condition can count as extreme hardship. The relative’s inability to look after another sick relative or extreme debt could count if your relative depends on you. If your child is a U.S. Citizen by birth but you are undocumented, your child would depend on you to survive. These scenarios sparked the movement for reform that led to President Obama’s deferred action orders which have stalled in the courts.

People who believe they can qualify for an extreme hardship waiver should file an I-601 application for a waiver on the grounds of inadmissibility. They are also required to pay the fee.

There is no objective test. Instead, each application is weighed on a case-by-case basis. USCIS is often accused of failing to apply the standard consistently.

These waivers are a complicated area. Our Austin family immigration attorneys can take on your case and help you work your way through the minefield. Call Peek & Toland at (512) 474-4445.


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Texas Leads the Way in Criminal Law Reforms

By Peek & Toland on September 29, 2016

Texas has a reputation for being a state that’s tough and unyielding on crime and big on incarceration. However, in recent years the Lone Star State has forged a reputation for enacting important criminal law reforms.

Recently, the Texas Observer reported on how the state has pioneered important reforms.

The Observer noted Texas has an “increasingly strong bipartisan coalition.” It is continuing to push for reform in the criminal justice arena.

These are changes that would have been unthinkable in the 1990s when the state’s prison system tripled in size.

Texas pioneers criminal law reforms

In recent years the trend has been reversed, although Texas still has more prisoners than any other states and executes more inmates.

The reforms can be traced back to 2005. Policymakers under the leadership of former Republican Gov. Rick Perry undertook reforms criminal law reforms which led to a 12-percent reduction in the state’s incarceration rate since 2009. Supporters of the reforms claimed they resulted in the lowest crime rate since 1968.

Criminal Law Reforms Include Drug Courts

The changes implemented in Texas included specialized drug courts which served as an alternative to incarceration. The state shook up its parole and probation system. Legislators wanted to quickly punish violations without automatically sending an offender to prison.

The massive projected costs of new prisons almost a decade ago was one catalyst to reform. The Observer noted the state was spending $2 billion to build and run new facilities to meet rising demand. Legislators looked at how they could instead invest more than $240 million in programs in the community that would divert offenders from prison.

Fast forward to 2016 and Texas closed three prisons, reduced the number of inmates and enacted significant criminal law reforms to address wrongful convictions. It led the way in reforms in forensic science.

That’s not to say Texas is a role model yet. The state has one of the worst records in the country for miscarriages of justice. It uses the death penalty far more than any other state in the Union. Our experienced Austin criminal defense attorneys help many people who have been wronged by prosecutors to secure jail release.

During the most recent legislative session, legislators enacted more reforms including:

1 – Adjusting the property theft thresholds in a move that’s likely to decrease the number of people jailed for theft.

2 – Decriminalizing truancy

3 – Ending the ‘pick-a-pal’ system for selecting grand juries, which allowed judges to pick people they knew and the same people to serve on juries again and again.

Changes that keep defendants out of jail are to be welcomed. In the past, Texas jailed too many people for minor crimes. Once in jail, there are few mechanisms to rehabilitate prisoners and prevent them re-offending when they are released.

If you are facing a jail term in Austin, San Antonio or another city, it’s important to hire an experienced criminal defense lawyer to help you. Call us today at (512) 474-4445.

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Texas Considers Raising Its Juvenile Criminal Age to 18

By Peek & Toland on September 28, 2016

Texas has a reputation for taking a hard line on juvenile offenders. The state has classified 17-year-olds who commit crimes as adults in the criminal justice system for almost a century. Now there are moves to raise the juvenile criminal age.

However, the practice of treating 17-year-olds as adults has come under increased scrutiny and criticism in recent years, resulting in moves to change the law at the state legislature.

Recently, CBS revealed some lawmakers in Texas are seeking to change the juvenile age to 18. A bill was put forward this summer in the House of Representatives. Although it failed to make it into law, its proponents are going to keep on pressing for change. They say there are many valid reasons for raising the juvenile criminal age.

Texas is considering raising the juvenile criminal age

Texas considers upping the juvenile criminal age

The Advantages of Advancing the Juvenile Criminal Age in Texas

The present law has been in place since 1918, but there appear to be few advantages to punishing 17-year-olds by treating them as adults. Some drawbacks include:

1 Re-offending

The juvenile system has programs that are intended to prevent recidivism that are not present in the adult system. Although the juvenile system is more costly, those supporting the bill say the change would cost the state less in terms of reoffending rates.

2 Future Prospects

Adult records aren’t sealed like juvenile criminal records. When youths are caught up in the adult system, it’s harder to access services and find jobs and homes after their release.

3 Texas is in the Minority

Just nine states treat 17-year-olds as adults. Campaigns to raise the juvenile criminal age are gathering momentum in New York, North Carolina, and Wisconsin, states the Marshall Project.

4 The High Cost for Jails

If Texas does not change its juvenile law soon, its jails will face shelling out large amounts of money for renovations. They must meet the requirements of the 2003 Prison Rape Elimination Act. The legislation says youths must be kept away from inmates 18 and older by October 2017. The Legislative Budget Board, says the state faces the loss of almost $3 million in federal funding if it fails to comply.

Lawmakers have not yet reached a consensus. However, many of them believe the juvenile law should be changed in Texas.

Our criminal defense attorneys are well aware that being hit by charges as a young person can ruin your prospects. The situation may be even worse after incarceration in an adult jail.

If you are a teenager in the adult criminal justice system in Texas, it’s vital that you get help. Call us today for a consultation at (512) 474-4445.

Posted in Criminal Defense

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Can I Apply for Naturalization With an Expired Green Card?

By Peek & Toland on September 27, 2016

We are often asked whether an immigrant can apply for naturalization with an expired green card.

Many people in this situation are understandable distraught. Once you have gained a green card it’s tempting to think that’s the end of the story. You may not pay attention to when it will expire.

Often immigrants don’t realize that their green cards have expired until they try to apply for citizenship.

You can still apply for naturalization with an expired green card

If you have a 10-year green card, and it’s set to expire within six months, you should follow these instructions on how to renew it on the US Citizenship and Immigration Services website.

However, many immigrants who are considering naturalization balk at paying a $450 renewal fee for their green card. The fee includes an application fee and a biometrics fee. These costs are expected to rise even higher in the future.

This can present a quandary for those who are considering citizenship but have stalled on the application. USCIS says if you apply for naturalization six months or more before the expiration date on your card, you don’t have to apply for a new one.

If you make your application for naturalization less than six months before your Permanent Resident Card expired or if you wait until it has expired, USCIS says you must renew your card.

An Attorney Can Helo You if You Have an Expired Green Card

This is the official advice and it makes sense to apply for citizenship at least six months before the expiration of your green card. Ideally, it should be sooner. However,  you can successfully file for citizenship if your green card has expired.We would recommend you use an experienced Texas family immigration attorney to help you.

As an immigrant, you don’t lose your permanent resident status if your card expires. You do lose your proof of residency. It is still possible to successfully apply for citizenship with an expired green card.

There are instances in which your green card should be renewed before you apply for naturalization. If you travel out of the United States, you will need a valid green card to get back into the country again.

It makes sense to hire a Texas immigration lawyer to help you deal with USCIS if you have an expired green card. See our resources about citizenship here.

Do not hesitate to contact us if you need help with naturalization or have any concern or fear. Call us today at (512) 474-4445.

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Texas Man is Sentenced to 30 Years for Drug Crimes Committed in Prison

By Peek & Toland on September 26, 2016

For decades the federal authorities have targeted drug crimes with stiff sentences. However, incarceration is not always the end of the matter. Recently, a man from Texas was sentenced to 30 years on five drug-related felonies that were committed when he was in prison.

Joel Lopez, 38, committed the crimes on a cell phone from the U.S. Penitentiary in Marion in Illinois, according to media reports. He was accused of passing the phone number of a co-defendant in Texas who distributes drugs to two fellow inmates at the prison.

Prosecutors said money from the drugs deals was then wired back via bank accounts to the co-defendant who then gave some of it to Lopez’s family in Texas.

Many drug crimes lead to federal prison sentences

Drug offenders often end up in federal prison

Lopez was convicted of conspiring to distribute 21 kilograms of cocaine, more than 10 kilograms of crystal meth and more than 19 kilograms of marijuana.  He was also convicted of conspiracy to commit money laundering.  It was Lopez’s federal third conviction for drug crimes.

Many drug crimes are dealt with by the federal authorities. Offenses such as trafficking or distribution often attract long prison sentences. Our Texas criminal defense attorneys represent people who have been charged with drug offenses.

When Drug Crimes Become Federal Offenses

If you are arrested for a drug crime, it may not always be clear if you will be prosecuted at a federal or a local level. While it makes little sense for the federal authorities to become involved in crimes like marijuana possession, the feds have a drug enforcement remit.

While there is a longstanding federal strategy in place to fight the abuse and distribution of drugs, every state also has its own set of drug laws.

Typically, most federal drug convictions concern trafficking, while most of the state and local arrests are made on charges of possession. About half of all local drug arrests are for the possession of marijuana, states NOLO.

The severity of the consequences of a conviction set federal drug offenses aside from local ones.

Federal drug charges usually entail harsher punishments and longer prison sentences. While drug possession is usually charged as a misdemeanor and may involve a short jail term, drug dealers often receive long sentences at federal facilities.

If you have been charged with a federal drug crime, it’s vital that you get experienced legal representation because you could be facing a long incarceration. We will protect your rights if you are accused of drug trafficking offenses. Call us today at (512) 474-4445.

Posted in Criminal Defense, Drug Crimes

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Attorney Who Accidentally Revealed Plea Deal by Footballer Johnny Manziel Quits Case

By Peek & Toland on September 23, 2016

The new climate of text messages, smartphone apps and social media has transformed how information is sent and how quickly it’s received. It also presents new dangers as was recently illustrated by an attorney who accidentally revealed footballer Johnny Manziel was seeking a plea deal by text

Johnny Manziel is accused of kidnapping, attacking and threatening to kill his ex-girlfriend, Colleen Crowley.

Attorney who texted details of plea deal by Johnny Manziel quits

According to Sportsday, attorney Bob Hinton, who was handling Manziel’s domestic violence case, accidentally sent a message to The Associated Press that expressed doubts about his client’s ability to stay clean and said he was seeking a plea deal. The report said the attorney received a receipt that showed Manziel may have spent more than $1,000 at a drug paraphernalia store a matter of hours after he was involved in a hit-and-run crash.

In July, Manziel’s spokeswoman Denise Michaels revealed that the attorney has withdrawn from the case. Hinton’s text message indicated that it might be difficult for Johnny Manziel to get a plea deal. He is just the latest football star to end up facing criminal charges.

Hinton said sending the text had left him with little choice but to withdraw. He said he did not want to be an interference.

Manziel was charged in January with kidnapping, hitting and threatening to kill ex-girlfriend Crowley at a hotel in Dallas during a fight over another woman.

They couple split up a month earlier after dating for two years. Crowley told investigators the alleged attack occurred after the footballer invited her to his hotel room to talk and that he slapped her head. She claims the alleged attack led to the rupturing of her eardrum and the loss of her hearing.

Crowley accused Johnny Manziel of then dragging her by her hair, forcing her into a car and driving her to her hometown of Fort Worth.

The footballer is charged with a misdemeanor and faces up to a year in a county jail if convicted. Reports said he plans to plead not guilty.

At Peek and Toland, PLLC, we represent many people who are accused of crimes of assault and family violence. You can read more about the crime here.

Most people who are accused of crimes know their victims. These cases can be tricky because emotions run high when family relationships are strained and false claims can be made.

You can be charged with assault by merely causing another person to fear harm against them. You don’t have to make contact to be charged with assault.

If you are facing charges of family violence, which include assault as well as aggravated assault, it’s very important to hire an attorney who is well versed in these matters. If you have been charged with a crime, please don’t put anything about it on social media or text messages. This evidence could be used against you.

At our Austin-based law firm, Jeff Peek, Steve Toland and their team have worked with those who are charged with crimes for more than a decade. You can read our success stories, then contact Peek & Toland today at (512) 474-4445.

Posted in Criminal Defense

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Texas Rape Victim Who Was Jailed for Fear She Would Not Testify Files Lawsuit

By Peek & Toland on September 22, 2016

As Austin criminal defense attorneys, there are few things that surprise us anymore about prosecutors in the state. However, the actions of one prosecutor who jailed a Texas rape victim for fear she would not testify, have caused widespread shock.

The New York Times reported that the Harris District Attorney’s office jailed a woman they feared would not take the stand after suffering a mental breakdown.

Texas rape victim has filed a lawsuit after being jailed

Prosecutors jailed the Texas rape victim in the same jail as her attacker, Keith Hendricks. A lawsuit was brought against the district attorney’s office and county and jail officials. It alleges she was misclassified as a perpetrator of the attack, denied medication in jail, attacked by another inmate and punched by a guard.

It’s a case that raises alarming questions about the treatment of people with mental health issues in the Texas justice system. As well as the legal aspects, it raises serious concerns about such treatment of someone who has already been victimized.

The Texas rape victim was locked in the Harris County jail for 27 days. According to reports, the women, who is schizophrenic and bipolar, told prosecutors she planned to run away. She did not want to complete her testimony against Hendricks. She spent 10 days in the hospital recovering. The District Attorney’s Office claimed the woman had no place to go after being discharged. Prosecutors obtained a witness attachment and took her to jail.

The Lawsuit Brought Against Harris County by the Texas Rape Victim

The lawsuit makes some serious claims against the authorities in Harris County.

It notes that attachment orders, or “witness bonds” are occasionally used for legitimate purposes. However, they are typically invoked when a witness who is under subpoena is considered a flight risk.

Lawyers representing the woman said their proper use is in cases that involve illegal immigrants who might be scared to testify because of gang reprisal or the fear of deportation.

Although the woman was a rape victim with a mental illness, the lawsuit claims the jail staff classified her as a defendant in a sexual assault case in their system. The oversight meant she was treated like a perpetrator rather than a victim. She was placed with the general jail population rather than in a mental health ward. Here, she faced further attacks and hostility.

As criminal defense attorneys, we know many of the tricks that prosecutors use. This case highlights how glitches in the criminal justice system can and do occur, often with serious consequences.

Our attorneys have years of experience of fighting for jail release in Texas. Please contact us to get out of jail, or to find out more about the wide range of legal services that we can provide. We will be more than happy to discuss your jail release options, or to answer any questions and concerns that you may have.

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Residents in Remote Areas Face Rural Citizenship Application Difficulties

By Peek & Toland on September 21, 2016

The road to citizenship can be long enough without the added burden of living in remote areas. Here, longer distances and processing times add to the costs and the burdens. Rural citizenship applicants face unique challenges.

As experienced Austin, Texas citizenship attorneys, we help many people achieve their dreams every year. However, we are also aware of the potential pitfalls. The road is literally a long one if you are making a rural citizenship application.

Rural citizenship applications can be more difficult

An article in Daily Yonder revealed the additional hurdles people applying for naturalization face living in areas far from processing centers. You may not face these problems in big cities in Texas such as Dallas and Houston. However, the state has vast and remote areas where obstacles could discourage eligible residents from applying for citizenship.

The article quoted Stephanie Rickels from Cascade, Iowa. Rickels had to travel more than 180 miles to the U.S. Citizenship and Immigration Services office in Des Moines to complete the stages of the naturalization process.

USCIS has processing centers in Dallas, Houston, San Antonio, Harlingen and El Paso. Some applications face trips of hundreds of miles for visits.

The Daily Yonder article pointed out some states have just one processing office. In South Dakota, applicants could face traveling as far as 1,800 miles to get to an office.

In the article, Rickels described how her handprints and picture were taken at the Des Monies office. Her appointment lasted just 15 minutes after an 183-mile drive each way.

The second trip would involve an interview and a test and the third was the naturalization ceremony to officially become a U.S. citizen.

Rickels, a French national, was eligible for naturalization because she has been married to a U.S. citizen for years.

The article in Daily Yonder pointed out that as of 2014, about 6,125 new citizens lived in so-called “noncore counties” that lacked a city of 10,000 residents or more. However, more and more people are moving out to remote areas as property prices rise in the cities.

Rural Citizenship – Isolation is Not the Only Barrier

While living in a remote area can make your bid to become a U.S. citizen more onerous, it’s not the only obstacle many green card holders face.

According to the Pew Research Center, a survey of Hispanics found 26 percent of those questioned were held back due to personal reasons and 18 percent said they faced administrative barriers.

At Peek & Toland , our lawyers are willing to answer any difficult questions you may have about citizenship. It’s not a straightforward process and we can help your path to naturalization. To speak to an attorney, call us at (512) 474-4445.

Posted in Citizenship, Immigration

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Hillary Clinton Promises to Retain High-Skills H-1B Visas

By Peek & Toland on September 20, 2016

The lack of H-1B visas for workers with high skills rankles Silicon Valley. In response, Hillary Clinton, the Democratic presidential nominee, is allaying fears that it will become harder for hi-tech companies to hire skilled workers in the future.

Earlier this summer, Clinton vowed to uphold the high-skills visas that are prized by the tech industry, Think Progress reported.

Hillary Clinton to consider reforms to H1-B visas

The lack of high-skills visas limits the numbers of skilled workers who can work for IT companies from countries like India. Earlier this year, we noted how the cap on these visas for 2017 was met in matter of days.

The season for H-1B visas opened up on April 1 and the cap of 65,000 visas achieved in under a week by April 7.

In a speech this summer to the League of United Latin American Citizens (LULAC), Clinton noted the need to reform the visa system. She said immigration reform should be comprehensive. The tech industry favors immigration reform and is a strong proponent of the H-1B visa program.

An article in Vox expressed concern about Clinton’s agenda. It claimed her immigration reforms would prioritize Hispanic immigrants rather than the needs of the IT industry.

Moves to Meet High Demand for H-1B Visas

It said some people in the tech industry hope that Congress will expand the high-skilled visas program while sidestepping the more contentious aspects of immigration reform. During President Obama’s first term, Congress considered bills to expand the high-skilled visa program. The moves were ultimately voted down by Democrats.

Immigration has become a very partisan issue. Democrats are championing an overhaul of the current system. Republicans, to an extent, are cherry-picking high-skilled visas as the one component of the current system that should not only be protected but expanded.

Donald Trump, the Republican presidential candidate, has adopted an anti-immigration stance. However, the report stated he embraced the H-1B visa program as a way of creating more jobs in the U.S.

H-1B visas remain controversial. Some commentators claim they pit American workers against those from overseas.  Some of the tech companies such as Apple and eBay have been accused of “wage theft” by underpaying foreign workers brought over on these visas.

Clinton criticized the H-1B visa program in her Vox interview. She warned the program could be used to displace local workers with cheaper one from abroad.

However, the tech industry points to a skills shortage that cannot be met locally. If your company is using H1-B visas, it’s important to hire a skilled Texas immigration law firm to help you through this minefield.

See our checklist for the skilled visa cap season here. If you intend to apply for one of these visas, please contact our office to set up a consultation. An immigration employment attorney can give you an assessment of your eligibility for an H-1B petition.

Posted in Immigration Reform, Uncategorized

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Five Major Miscarriages of Justice in Texas

By Peek & Toland on September 19, 2016

Exonerations reached a record level in the United States for the second year in a row in 2015, with Texas again leading the way for miscarriages of justice.

The Houston Chronicle reported more than one in four exonerations were from drug convictions in Harris County.

Five high profile miscarriages of justice in Texas

The University of Michigan Law School’s National Registry of Exonerations noted there were 149 last year, including 58 for homicide offenses.

Texas has had some of the highest profile miscarriages of justice in the country. Here are five of the worst.

Miscarriages of Justice – Five of the Worst

James Waller

Exoneration came for James Waller in 2007 at the age of 50. He was convicted of a crime almost 25 years earlier in 2005 when rape was committed against a 12-year-old boy who was living in his apartment.

The victim had been the main witnesses against him. Waller was exonerated by a judge after a new type of DNA testing on semen and hair had shown he did not commit the crime.

Waller had been out of jail on parole since 1993. He described the fight for justice as a “long, horrible road.”

Associated Press reported how Dallas County at the time of Waller’s exoneration had recorded more of these miscarriages of justice than the whole of California.

Kerry Max Cook

Cook spent 20 years on Texas’ death row before he was released. He was convicted of the rape and murder of Linda Jo Edwards in Tyler in 1977, but his conviction was overturned. He had a second trial that ended in a hung jury before a third resulted in the conviction being again overturned after a court found it discredited by prosecutorial misconduct.

Notwithstanding three previous trials, Smith County moved to try Cook for the fourth time. He agreed to a plea deal in 1999. He pleaded no contest and was set free from jail. Later DNA testing revealed traces of another man on the clothes of the victim. Cook later wrote a book about his wrongful conviction.

Technically, Cook remains a convicted murderer because he was not exonerated. He said it’s impossible to live a normal life.

Michael Morton

Michael Morton became the poster child for miscarriages of justice in Texas and even had new legislation named after him following his high-profile exoneration.

After spending 25 years in prison for the murder of his wife, despite any evidence linking him to the crime, he was released on October 4, 2011, and exonerated two months later. DNA evidence later linked the killing of Morton’s wife to another murder two years later.

The Michael Morton Act that came into effect at the start of 2014 ushered in a new era of discovery rules for prosecutors.

James Curtis Williams and Raymond Jackson

James Curtis Williams and Raymond Jackson, two black men, received life sentences in the 1980s. They were convicted of raping and pistol whipping a white woman in Dallas in 1984.

Jackson was paroled in 2010, followed by Williams in 2011. Subsequent DNA testing found that neither man committed the rape. It also found a DNA hit to two other men incarcerated on unrelated charges. Williams and Jackson were exonerated in 2012 and received compensation.

Anthony Massingill

Anthony Massingill was convicted of aggravated robbery and aggravated rape in 1980. He served more than three decades in jail before being finally exonerated on October 17, 2014. His conviction was based on the flimsy evidence of an eyewitness who misidentified him. Incorrect identifications and the testimonies of children are common factors in miscarriages of justice in Texas.

Our legal team at Peek & Toland , provides criminal defense for crimes of murder committed in the state of Texas, as well as rape and other serious offenses.

We are well aware of some of the grave miscarriages of justice that have occurred in Texas in the past. Not only does Texas execute the most people in the country, but it has the most exonerations. Call us today at (512) 474-4445 if you have been charged with a serious crime.

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