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Monthly Archives: July 2020

4Rules to Justify Self-Defense in Texas | In Your Defense Series

By Peek & Toland on July 24, 2020

Welcome to In Your Defense. Attorney Steve Toland discusses rules to justify self-defense and goes over examples that do not justify the use of force as self-defense in Texas. 

4 Rules to Justify Self-Defense in Texas

First, you need to remember that Texas is a stand your ground state. You can stand your ground as long as you’re not the primary aggressor.

There are four rules you would need to follow to justify using force against someone else if you’re defending yourself. 

  1. You have to be reasonable in your belief that it must be immediately necessary to exact force upon another person.
  2. You’re only allowed to use the reasonable amount of force needed to stop whatever that person’s doing to you. You have to balance your response proportionately. 
  3. You have to be in a legal position. You can’t be breaking the law when you try and then justify your use of force on somebody else. 
  4. You cannot be the instigator.

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Posted in Criminal Defense

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Options You Have If Your Visa Expires During COVID-19

By Peek & Toland on July 22, 2020

Many flights are getting canceled, and different countries are closing their borders due to COVID-19. A question our firm has heard frequently as of late is, what do I do if my visa is about to expire and I can’t go back to my home country because of COVID-19? 

Immigration Attorney Jeff Peek discusses three options that could apply to your case and help you avoid illegal presence in the United States.

1. Extension of Status 

Assuming your permit has not expired, you can file through USCIS and ask for more time. You will need to explain why it is that you’re asking for an extension. You’re going to need to show proof of your intent to return, a return ticket already purchased, your plans, where you’re going to be living, and what you will be doing. It might help if you have a sponsor who is a citizen or a resident to sign a letter.

From experience in the past years, this will typically give you about 5-6 months while they process your application and decide. Therefore, this allows you to be in the U.S. without an accumulation of unlawful presence. 

2. Change of Status 

Change of status is when you change to a different type of visa. This can be a little tricky because the visa you want to switch to has to be immediately available. For instance, if you change from a B1/B2 tourist visa to an F-1 student visa, you have to ask yourself, are you going to be able to enroll in the school immediately? Is the school willing to issue an I-20 to you even though you’re technically on a B1/B2 visa? Can you do that before your temporary visitor visa expires and before the school year starts? Maybe there are other visas like an investor visa or work visas that you could apply. Still, you have to keep in mind that it has to be immediately available. 

3. Adjustment of Status 

Adjustment of status is where you change from any non-immigrant visa to the intent to reside in the U.S. permanently, so you would apply for residency. There are lucky few who are eligible for adjustment of status. Those Individuals are spouses of U.S. citizens, parents of U.S. citizens, or minor children of U.S. citizen parents.

We recommend talking to one of our attorneys to see which option is the right fit. We’ve helped many families and individuals further their stay here in the United States legally, especially in the midst of this global pandemic. 

We hope this information has been helpful. Please don’t hesitate to reach out to us with any questions. 

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Posted in Immigration, Visas

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Student Visas F-1/M-1 and DACA Immigration News Update

By Peek & Toland on July 16, 2020

Attorney Jeff Peek shares the latest news concerning immigration law that may affect you or someone you know. 

F-1/M-1 Student Visa Update 

Last week, the Trump Administration announced some changes to the F-1/M-1 student visas. The announcement indicated that if there was a full-time online program, you would be out of status as an F-1/M-1 visa holder and would have to leave the country immediately.

The great news is that the Trump Administration just announced that they’re going to rescind the previously issued order and that they will not implement that rule. Therefore, you can take a deep breath if you’re an F-1 or M-1 student visa holder. You will still maintain good status with your F-1/M-1 visa even if all classes are online. 

DACA Update 

The second piece of information is pretty interesting and exciting. In a recent speech, President Trump announced that he wants to extend the DACA program and provide a pathway to citizenship. Now it remains to be seen if he has the authority to do so. Trump hasn’t made it completely clear yet what it’s going to be, but he said that soon he would make a big announcement. 

Until then, we would advise anybody who is either renewing DACA or is eligible for DACA to continue to renew your DACA. If you are eligible, but never filed, definitely get your application ready to go and get ready to file. If you’re somebody who may have had a criminal record in the past but got the case dismissed, now it might be a great time to apply. If you live in Texas, you can get criminal cases expunged, so that it will not appear on your record. We certainly can help you with any of those questions. Watch our latest immigration videos for more information about expunctions: 

Stay tuned as we will keep you informed on any immigration law updates. In a matter of time, we will hear new news from president Trump. 

We are here to help you in any way that you can, so if you have any questions, please call us at 512-474-4445 or you can find more information on our website at www.peekandtoland.com.

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Posted in Immigration, Latest News, Visas

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Expunctions: What is it? Who Qualifies? and How Can It Help an Immigration Case?

By Peek & Toland on July 15, 2020

Welcome to Immigration Wednesdays. Attorney Jeff Peek briefly explains expunctions, who’s eligible, the process, and the benefits. 

What is it?

It’s a process in the state of Texas whereby one charged with a criminal case, whether it be DWI, misdemeanor, or felony, had that case either dismissed or found not guilty, can then erase it in all records. Records include physical state, paper files, computer, digital, and online so that it doesn’t appear anywhere. 

Process & Eligibility  

First of all, this is in the state of Texas. If arrested in another state, check with lawyers in that state because each state has a very different way of handling expunctions. In Texas, you must have either had the case dismissed or be found, not guilty at trial.

Dismissal 

There are different types of dismissals. In lawyer language, it’s called a straight dismissal, meaning there was no reduction of charges. There was no lesser punishment involved, and the charges are dropped. For example, if you were charged with DWI and they agreed to dismiss the DWI, but then you had to plead to reckless driving or obstruction of a passageway, you would not be able to expunge the DWI because you ended up taking a plea deal and punishment on a lesser case.

Sometimes, you find cases where somebody’s charged with a misdemeanor or felony, and they drop it down to a different level, and it’s dismissed at that lower level. For instance, you have a felony dropped down to a misdemeanor. Still, then you’ve got a deferred prosecution on the misdemeanor, or they dropped it down to a class C ticket, and you got a deferred disposition on the class you ticket that also ended up in dismissal. In some of those cases, you could still be eligible to expunge it. 

Found Not Guilty at Trial

If you go to trial, whether in front of a jury or a judge and you’re found not guilty, you’re also eligible to having expunction and even better. You don’t have to pay the filing fees for that.

What if you have completed probation, are you eligible for expungement? No. What if you finished a jail sentence and it’s been more than ten years, are you eligible for expungement? No. It’s very limited to those two classes. And again, if you have a diversification, there’s another process. 

Benefits 

Secondly, why would you want to do it? There’s a lot of reasons. Here are some examples:

  1. Employers have access to criminal records. They may see that you were arrested, and they may not like the fact that you have a record. Even if you got off on the case. 
  2.  You don’t want your partner or their family to see your record
  3. You want to apply for law enforcement
  4. You want to go to advance your career 

Benefits for Immigrants 

There are also two crucial reasons from an immigration side. For example, there are programs now, in central Texas and other many other counties, where you can enter what is called a Deferred Prosecution Agreement, or sometimes it’s called a Pretrial Diversion Agreement or Drug Courts. These various programs allow you to dismiss the case once you have completed all of their requirements. Sometimes they dismiss it on the front end, sometimes in the back end, but it’s a valid dismissal that your eligible do expunge. For immigration law, USCIS has begun to question whether that dismissal is an actual dismissal. And they’ve said, “No, that’s not a true dismissal, you admitted to doing the crime?” When you sign that Deferred Prosecution, you confessed statements. When you participated in that Pretrial Diversion Program or that Drug Court, you went in front of a judge and admitted that you did those activities. You took responsibility, immigration saying that’s not a dismissal. USCIS is going to count that as a conviction. Even if your paperwork shows “dismissal,” USCIS will argue that those programs require a confession or knowledge of responsibility. Therefore, you are guilty of those charges.

So, it’s vital to dismiss charges that they are entirely removed from your record to avoid running into this issue with the USCIS. 

If you are an immigrant or somebody with permanent residency, and you are in that situation, definitely talk to a lawyer who knows both criminal offense and immigration law.

If you have any questions about expunctions and the process, please call Peek & Toland Law Firm at 512-474-4445, we’d be happy to help. 

Posted in Criminal Defense, DWI, Immigration

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TN Visas Under the USMCA

By Peek & Toland on July 7, 2020


TN Visas Under the USMCA

Last Wednesday, July 1, 2020, came and went without much fanfare. Still, it was the first day of the implementation of the United States-Mexico-Canada Agreement (USMCA) which, in essence, is a new and revised North American Free Trade Agreement (NAFTA). 

The new trade agreement for North America took effect July 1, ushering in tougher labor, content, and wage requirements. The agreement includes an annex to address labor conditions and oppressed wages in Mexico. Specifically, the USMCA calls for collective bargaining and secret votes for unions to dilute the influence of business owners in Mexico and allows U.S. labor inspectors to visit facilities in Mexico. The original NAFTA text on work visas has been preserved in Chapter 16 of the USMCA.

The average Texan/American may not think that USMCA affects them. However, the trade agreement is estimated to support nearly 12 million American jobs (700,000 Texas jobs) due to the trade with Mexico and Canada. A result of $173 BILLION worth of goods between Texas and Mexico every year.  

Employers in the U.S., Mexico, and Canada will be excited to know that the TN visa was not altered under the new USMCA agreement.  The list of professions eligible for a TN visa has not changed. No occupations were added or eliminated.

If your business is interested in hiring talented employees from Mexico or Canada, please reach out to Peek & Toland. We have almost 20 years of helping immigrants and American companies work together to keep the economy moving forward. Contact our office at 512-474-4445 to set up an appointment today.

Posted in Immigration, Visas

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Students Facing Felony Charges in the War Against Vaping in Some School Districts

By Peek & Toland on July 6, 2020

A recent Texas Tribune article addresses the drastic efforts of school districts statewide to combat vaping among students. Some schools are searching students to determine if they have vaping pens when they enter school buildings. Other schools are using vape-detecting sensors, drug-sniffing dogs, and sign-out procedures for restroom breaks to cut down on vaping among students.

Penalties for students also vary widely by school districts. Students vaping nicotine often risk suspension or removal from regular classes. In extreme cases, students are placed in alternative schools based on disciplinary problems. If students are vaping THC oils or waxes, which is the active ingredient in marijuana, however, the penalties are far harsher. Students may be subject to expulsion, but also may be subject to arrest for misdemeanor or even felony charges. Particularly for 17-year-olds, who are adults under Texas law for criminal offenses, a felony arrest for possession of a vaping pen containing an illegal drug can have significant consequences and create a permanent criminal record. For these students, a single criminal offense can substantially alter the outcome of their lives in creating barriers to employment, housing, and more.

Students Facing Felony Charges in the War Against Vaping in Some School Districts

In part, schools have had challenges responding to the vaping crisis among students due to minimal guidance from the state on how to address these issues. New vaping laws cannot go into effect at this point until 2021. The problem is, schools need guidance and instruction, rather than sometime next year.

Nationwide, vaping THC has become the new alternative to smoking pot. In states in which marijuana is legal, marijuana companies report that vaping products now make up 30% of their business.

Actions to crack down on teen vaping stem from the Centers for Disease Control (CDC) investigations last summer into severe lung injuries and deaths caused by vaping in otherwise healthy people. In the state of Texas, health officials documented 200 injuries and one death linked to vaping.

The Peek & Toland criminal defense lawyers are here to represent your interests and advise you of the best course of action in your criminal matter. Set up an appointment to talk to us today and discover how we can assist you with your situation.

Posted in Criminal Defense, Drug Crimes

Texas Office of Court Administration Releases Annual Statistical Criminal Justice System Report

By Peek & Toland on July 5, 2020

The Texas Office of Court Administration recently released its FY 2019 annual statistical report for public view. The report highlights various statewide trends. For instance, the number of new misdemeanor criminal cases filed has fallen 33% from its peak in 2007 to just under 400,000 filings. This is the lowest filing rate since 1991. Drug and alcohol offenses constituted 37% of the new misdemeanor cases filed. After nine years of decline, the number of new DWI cases increased by 6% in 2019 and by 7% in 2018. Likewise, misdemeanor domestic violence charges have increased by 9% since 2017.

On the other hand, various types of misdemeanor criminal charge filings have decreased substantially over the past five years. These cases include theft by check, marijuana possession, many other minor drug offenses, driving with suspended/invalid licenses,

Texas Office of Court Administration Releases Annual Statistical Criminal Justice System Report
Texas Office of Court Administration Releases Annual Statistical Criminal Justice System Report

However, the filing rate for felony criminal offenses has consistently increased since 2014, reaching an all-time high in 2019 of over 225,000. One-third of the new felony filings involved drug charges, and the number of new felony drug possession cases increased 3% over last year to a new high of almost 62,500. New felony DWI charges increased in the previous two years after four years of decline to about 10,3000 filings. Meanwhile, new felony family violence cases have increased since 81% since 2014.

Although most new felony filings increased, including felony theft cases and auto theft cases, the rate of new misdemeanor theft filings remained the same. New burglary and robbery cases also declined.

The criminal defense lawyers of Peek & Toland have handled the cases of countless individuals who are facing criminal charges in the state of Texas. We are here to protect your rights and advocate on your behalf. As a result, we will strive to get the best outcome possible in your case. Call our office today at (512) 474-4445 to set up an appointment with our criminal defense attorneys.

Posted in Criminal Defense

What is the Difference Between a Stacked or Consecutive Sentence and a Concurrent Sentence in a Texas Criminal Case?

By Peek & Toland on July 3, 2020

In most cases, when a defendant is convicted of multiple criminal charges arising out of a criminal trial, the sentences automatically run concurrently, or at the same time. However, the court will issue an order for the sentences to be stacked, or run consecutively, in selected circumstances. When this occurs, the defendant must finish serving one sentence before he or she begins serving another. As a result, the defendant could end up serving a much longer prison term.

What is the Difference Between a Stacked or Consecutive Sentence and a Concurrent Sentence in a Texas Criminal Case?
What is the Difference Between a Stacked or Consecutive Sentence and a Concurrent Sentence in a Texas Criminal Case?

Whether a defendant opts for the jury or the judge to decide their sentence in a criminal proceeding, the judge ultimately determines whether the sentences will run concurrently or consecutively. Tex. Code of Crim. Procedure § 42.08 gives judges the authority to stack criminal sentences, whether the sentences are imposed or suspended. This provision gives judges broad discretion in stacking sentences.

In deciding whether to stack sentences, judges can consider various factors, including whether:

  • The crimes were committed separately or independently of one another
  • The crimes involved separate acts or threats of violence
  • The crimes were committed at different times or at the same time

Judges must stack sentences in one situation. If the defendant committed a crime while an inmate in a Texas prison and serving an unrelated sentence, the new sentence will be consecutive or stack with the first sentence.

The law outlines some circumstances in which judges may not stack sentences. Generally, if multiple criminal charges arise from one episode and are prosecuted together, the sentences must run concurrently. If, however, the defendant files a motion to sever the charges so that he or she will face two or more separate trials, there is a risk that the sentences will be stacked. Likewise, some other criminal offenses also may be stacked, even if they stem from the same episode of criminal conduct, including some sex offenses.

An experienced Texas criminal defense attorney can help you build a strong defense against any criminal charges. We are here to evaluate the facts surrounding your case and explore your options. We can then help you make the decisions that are mostly like to be beneficial to you based on your situation. Contact Peek & Toland at (512) 474-4445 today and see how we can help.

Posted in Criminal Defense

Trump Administration Grants Security Agency Designation to CBP

By Peek & Toland on July 2, 2020

As of January 31, 2020, the Trump Administration has granted the designation of “security agency” to U.S. Customs and Border Protection (CBP). This change in policy gives a level of secrecy to CBP by shielding a great deal of information from public scrutiny. As a result, the Freedom of Information Act (FOIA) will no longer compel CBP to disclose the names of their officers and various other records. Up until now, only agencies like the FBI and Secret Service have relied on this designation to protect their records.

The Trump Administration moved to change CBP to a security agency after a Twitter account was posting information about CBP employees that typically is available through the Office of Personnel Management (OPM). OPM handles federal employee information, some of which is publicly available, including salary information. The Twitter account that triggered the change has since been suspended. The Trump Administration deemed the change necessary for the security and privacy of CBP employees. However, the change does not seem to have increased the authority of CBP in any way.

Trump Administration Grants Security Agency Designation to CBP

Advocates of government transparency see the move as troubling, as it is likely to make it more challenging to hold CBP accountable. Lawyers and others often rely on FOIA to get internal information that relates to policy changes and interpretation, even if the information is redacted. Now, FOIA requests directed to CBP are likely to be even more heavily redacted.

Furthermore, Amnesty International and the American Civil Liberties Union have increasingly questioned the secrecy now surrounding CBP after the agency allegedly compiled a list of primarily American attorneys, reporters, and advocates that border agents should stop for questioning at border checkpoints. Likewise, CBP might also have placed alerts on the passports of people on the list.

The immigration lawyers of Peek & Toland have handled the immigration cases of countless individuals and businesses facing immigration-related issues. We are here to protect your rights and advocate on your behalf to get the outcome that you are seeking. Call our office today at (512) 474-4445 to set up an appointment with our immigration attorneys.

Posted in Immigration Reform

How Bonds Work in Criminal Cases

By Peek & Toland on July 1, 2020

Bonds are payments that people make to courts so that they can be temporarily released from jail while they are awaiting a trial on criminal charges. Bonds can be cash bonds, which means that the defendant pays the entire amount of the bond set by the judge in cash. More commonly, bonds are surety bonds, which means that a person other than the defendant accepts responsibility for ensuring that the defendant returns to court dates as scheduled, such as a bail bond agency.

The purpose of a bond is to make sure that defendants show up in court to answer the criminal charges of which they are accused. The amount of the bond differs substantially based on the severity of the criminal offense and the criminal history of the defendant. Furthermore, in setting bail amounts, the court must take into account the ability of the defendant to pay the bond, the future safety of the defendant, and the community if he or she is released on bond and whether the bond is high enough that defendant will comply with it. Judges may not, however, use an extremely high bond amount as a form of punishment for defendants who have not been convicted of a crime. 

How Bonds Work in Criminal Cases

If the defendant later fails to appear in court as scheduled for his or her criminal case, then the court will order the bond forfeited. In the case of a surety bond, bail bond agents are responsible for payment of the bond, which gives them a huge motivation to ensure that the defendant appears in court as ordered.

Once the criminal case is over, the court will refund any cash bond posted by the defendant that is left over after the payment of any costs or fees. In the case of a surety bond, there is no refund to the defendant.

In recent years, fights have continued over the need to reform the state’s bail practices. Late last year, a federal judge approved a massive settlement in a lawsuit about bail reform. Incarcerated defendants with misdemeanor charges filed the lawsuit against Harris County for keeping them in jail when they could not afford to pay their bail. The settlement largely eliminates the use of cash bail for low-level criminal offenses.

At Peek & Toland, we care about helping you through your criminal proceedings. We will focus our efforts on advocating on your behalf and representing your interests throughout your case. Our knowledgeable criminal defense lawyers know the best strategies for defending you and working toward your desired objective. Allow us to handle your criminal case by sitting down with us today and discussing your situation.

Posted in Criminal Defense

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