Monthly Archives: August 2020

4 Facts About Marijuana Penalties in Texas

By Peek & Toland on August 28, 2020

Attorney Steve Toland wraps up his series on THC infused products and marijuana laws in Texas. Today he discusses four facts regarding marijuana penalties here in Texas.

1. Marijuana is penalized the same it’s classified.
It’s classified by its descriptions, a green leafy substance, and its weight, which includes the leaves, stalk, and the stem. If it’s four ounces or less, it’s still a misdemeanor in Texas. If it’s a bit over four ounces up to five pounds, then it’s in a range of felonies from state jail felony to a first-degree felony.

2. THC infused products start at a felony.
Those include gummy bears, vape pens, cookies, brownies, all of those things. All of them start at a felony. The reason for that is that Texas quantifies THC products as penalty group two. That is the second-highest penalty group for controlled substances. And for that reason, any THC product, even a single gummy bear, starts at a felony.

3. THC infused products are quantified by their weight, which includes adulterants and dilutants.
The weight includes adulterants or dilutants, so that’s all the other ingredients that go into making the product, for example, a pot of brownies will consist of the weight of the eggs, the flour, the chocolate, etc. That extra weight could very well be a first-degree felony amount, and it’s a simple pan or pot of brownies. Many people, particularly young adults, who traveled to Colorado and came back to Texas, don’t realize that they could be committing a felony just by possessing those things.

5. The amount of THC products can be considered a controlled delivery.
In Texas, we have possession of controlled substances and then possession with intent to deliver. It is often based on the quantity of its usable amount for an individual or is it for more people. The more you have, the more likely you could be charged with a first-degree felony.

As always, if you have any questions about marijuana, THC products, or you know someone who was charged with something like this, reach out to us, we’d be glad to counsel you through it.

Posted in Criminal Defense, Drug Crimes

What Happens If You Lie to Immigration?

By Peek & Toland on August 26, 2020

Attorney Jeff Peek talks about what happens when a client, an immigrant, or their spouse or family member lies or makes a misrepresentation during the process, whether in the application itself or an interview. 


What is a misrepresentation? 

Here is an example. Let’s say you’re coming across the border, and the officer asks, “Where are you heading today?” You’re coming in on a tourist visa, and you say, “I’m going on to Austin to visit my parents.” Okay. That’s great. What if the truth is you’re going to Dallas to visit your American boyfriend, who you hopefully want to marry? Was that how big was that misrepresentation? 

One of the questions to determine misrepresentation is:

  1. If the facts were known, would you have been excludable? 

Had the officer known your intention was going to Dallas to see your boyfriend, does that block you automatically? No, not necessarily. Now, if your plan was I’m going to Dallas to marry my boyfriend and then apply for permanent residency, and you’re coming on a tourist visa, now you could be blocked because of the facts. You’re not supposed to come in on a tourist visa if you know you intended to stay and apply for residency. See the difference? One could be an innocent lie, but the other one’s a not so innocent lie.

2. Does your misrepresentation to the officer cut off or shut off a line of inquiry relevant to the alien’s eligibility? 

What does that mean? Let’s go back to the example. If you had said, “Oh, I’m going to Dallas to visit my boyfriend.” What would the next question from the officer be? “Oh, how long have you been dating? Are you going to stay with him? How long are you planning to stay here?” And if in those lines of questions, the final, one of the answers would come out and be like, “Oh yeah, we got engaged. We’re going to get married next month.” Well, those answers would’ve then have made you excludable. Therefore, if you lie about the first question and had not told the truth about visiting your boyfriend, it didn’t let the officer continue the line of questions that could have made you excludable. That could be determined as willful misrepresentation. 

It can get pretty tricky, and you need to be very careful. The best advice is, don’t lie to officers. If you have something in your past or have something about your plans that you feel like if you say the truth might cause you problems, talk to an immigration lawyer first and see how they would advise. Again, failing to mention something is not a lie. If there’s something about your trip that might’ve been excludable, but the officer never asked about you, you’re not misrepresenting by just maintaining silence. But if you say something that either is untrue or is not a good representation of the truth or as a flat out lie, you got problems. 

What if you committed a misrepresentation, do you qualify for a waiver? 

If immigration finds that you committed fraud or made what they call a willful misrepresentation, then you can be denied unless you qualify for a waiver. The waiver is not as easy to get, as you might think. 

Qualifications for a waiver:

1. You have to have a qualifying relative. 

It has to be a U.S. citizen or permanent resident spouse or fiancé, U.S. citizen or permanent resident parent. Notice you’re not allowed to use U.S. citizen or permanent resident children.

2. You have to demonstrate that the qualifying relative is going to suffer extreme hardship. 

There are case law and articles about what constitutes extreme hardship. There’s regular hardship, extreme hardship, and extreme exceptional hardship. There are three different standards, so you have to speak with an attorney to see what qualifies as an extreme hardship.

3. Discretion 

It essentially means that the positive factors of your case outweigh the negative factors. Well, what could be some positives? There is a list published through USCIS that include:

– What are the facts and circumstances of the misrepresentation, how innocent was it? How deceitful was it?

– What were the reasons and motivations that the applicant had for making this fraud or willfully misrepresenting a fact to the officer?

– What was the age or mental capacity of the person? 

– Has the applicant engaged in a pattern of fraud and deceit?

– Nature and the proceedings in which the applicant committed the fraud or willful misrepresentation?

You might be surprised, but misrepresentation happens quite often. The best way is to avoid it, to begin with. Honesty is the best policy, right? But if you do have those problems, we here at Peek & Toland are ready to help.

Posted in Immigration

THC Infused Products and Marijuana Laws in Texas

By Peek & Toland on August 21, 2020

Attorney Steve Toland continues his discussion about THC infused products and marijuana laws in Texas. Today he discusses one of the biggest misconceptions about THC infused products.

Colorado is one of the states where marijuana products are legal. If you were to purchase a gummy bear, a cookie, a vape pen with THC oil, a brownie, any edible products, and you bring those back to Texas, you are committing a felony. 

Every single product, no matter how innocuous or small gummy bears included are felonies. They start at a state jail felony and go all the way up to a first-degree felony. Many people don’t realize that, but that’s one of the more significant misconceptions about the new marijuana laws and THC. 

So how did, how did that come to be? 

Well, it starts with the definition of marijuana. In Texas, marijuana is defined by the description of its appearance, its texture, its odor, it’s a green leafy substance. THC oil though, is the oil that’s extracted from the plant itself. The oil has THC, the psychoactive component that gets you high. And it has it at such highly concentrated levels that the legislature in Texas ascribes a penalty group to assessment to that. 

If you have any questions about drugs at all, quantities amounts, marijuana charges. Reach out to me attorney Steve Toland or us here at Peek & Toland. We’re always glad to help.

We hope you’ll join us again on In Your Defense as we’ll wrap up our series on marijuana and cannabis, and we’ll talk more about the penalty ranges. 

Posted in Criminal Defense, Drug Crimes

3 Misconceptions About Marijuana Laws in Texas

By Peek & Toland on August 21, 2020

Attorney Steve Toland begins a series about marijuana laws in Texas, which are surprisingly confusing, mainly because there’s THC oil and THC infused products out there. Many of us get confused about what’s legal, what’s illegal, what’s a misdemeanor, what’s a felony. 

There are many misconceptions out there. Here at the top 3 most common misconceptions: 

1. We’re not aware of the difference between hemp and marijuana. 

Marijuana is still illegal. Texas defines it as just that green leafy substance in and of itself. However, hemp is just like marijuana, but it has a THC component of 0.03%, or lower THC is tetrahydrocannabinol, THC for short. It’s the psychoactive component that gets a person high. And so Texas legislature and its infinite wisdom said hemp has such a low amount of that psychoactive component that gets you high, so we’re going to make that legal, while marijuana is still illegal. 

2. The mass penalty range. 

Many people are unaware that marijuana is still penalized the same based on its weight; four ounces or less is a misdemeanor. We’ll talk more about this later. Anything above that up to five pounds is a felony, but THC oil is very different. Even a thimble amount, the smallest amount, a gummy bear size amount of THC oil is a felony massive amount of difference. We’re going to dive into those details in later episodes of In Your Defense.

3. Jurisdictions in Texas are handling them very differently

In some places, marijuana is not heavily criminalized. Sometimes it’s a ticketable offense, not arrestable anymore. And then in other jurisdictions in Texas, it’s handled just as seriously as it always has been. Same with vape pens, gummy bears, things like that. So it’s confusing, we understand. 

So we’re going to talk more about that as we began to unfold THC oil-infused products and gummies and those kinds of things and marijuana over the next couple of episodes as always, if you have any questions about drugs at all, quantities amounts, marijuana charges. Reach out to me attorney Steve Toland or us here at Peek & Toland. We’re always glad to help.

Posted in Criminal Defense, Drug Crimes

Two Important Legal Terms that Affect Permanent Residents

By Peek & Toland on August 19, 2020

Attorney Jeff Peek discusses two legal terms that could potentially affect permanent residents who want to apply for U.S. citizenship or have been outside the U.S. for an extended period of time. 

Those two terms are physical presence and continuous residence. When someone wants to apply for citizenship, they have to prove two things: they need to maintain continuous residency in the United States and maintain physical presence in the United States. While both terms sound similar, they are two separate things.

Continuous residence
Continuous residence has to do with where you live, where you establish your domicile or dwelling place. Typically, for a permanent resident applying for citizenship, you have to have five years of continuous residency in the United States. If you are married to a U.S. Citizen, then it’s three years.

Now, what does that mean? If you have been outside of the United States for more than six months, but less than one year, then there is a presumption that you abandoned your continuous residence in the United States. You may overcome that presumption with evidence that you went outside for a job, maintained your house or apartment when you left or had immediate family members that stayed back while you went abroad. It’s a rebuttable presumption, but once you get over a year, you’re not going to rebut that presumption. They will say you are not eligible because you did not maintain your continuous residence here in the United States.

If you’re outside of the United States for more than a year, you can potentially encounter problems when coming back to the United States. When you’re out of the country for more than one year, you probably need to call a lawyer before you try to come back in to see if that’s going to be problematic for you.

Physical Presence
Physical presence is that you have to live here more than half the time, more than 50%. So if your period is five years for applying for U.S. citizenship, you will need to be in the United States for at least two and a half years. If it’s three years, because you’re married to a U.S. citizen, it’s one and a half years. That means you will need to count up every physical day you are outside the United States. You will want to check your passport and make sure that’s not going to be an issue. If you’ve spent over 50% of your time outside the United States, it will disqualify you for citizenship.

Physical presence and continuous residency, terms that can affect your citizenship eligibility, and if not followed, you could potentially lose your residence.

If you are a permanent resident and would like to apply for U.S. citizenship or have any immigration questions, please don’t hesitate to reach out to us at 512-474-4445 to book a consultation.

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Posted in Citizenship, Green Cards, Immigration

Immigration Filing Fees Will Increase

By Peek & Toland on August 12, 2020

The Department of Homeland Security announced a final rule on the USCIS fee schedule. These changes will go into effect on October 2, 2020. Attorney Jeff Peek discusses a few of the changes that will affect most people. 

N-600/N-600K Application for Citizenship/Naturalization
Will increase $530 from $640 to $1,170 

I-130 Petitions for Alien Relative 
Will increase $25 from $420 to $535 

I-192 Application for Advance Permission to Enter as a Nonimmigrant
Will increase $815 from $585 to $1,400

Work Permits 
Will increase $140 across the board with one exception. Those with DACA are the exception, they will continue to pay $410. Everyone else will have to pay $550. 

I-601A Application for Provisional Unlawful Presence Waiver
Will increase $330 

Asylum application now has a $50 fee  

These are just a few main changes that will affect most people. However, there is a massive list of fee changes. You can view all the fee changes on the USCIS website: https://www.uscis.gov/archive/our-fees

View the new rule in its entirety: https://s3.amazonaws.com/public-inspection.federalregister.gov/2020-16389.pdf

If you have any questions about this matter or any immigration questions, please don’t hesitate to reach out to us at 512-474-4445 or visit our website www.peekandtoland.com

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Posted in Immigration

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Defense of Third Parties in Texas

By Peek & Toland on August 7, 2020

Today Steve Toland wraps up his incredible series on justification defenses in Texas. In previous episodes, he explained the rules of self-defense, defense using deadly force, and the castle doctrine. Today, he discusses the defense of third parties.

Third-Party Defense Rule 

Texas has some of the most expansive self-defense laws that you’ll find in the country. One of those areas that’s unique is the issue of standing your ground and being able to defend a third party.

The rule in justifying the use of force and defending a third party is that you step into their shoes. The fancy lawyer word for that is subrogate. Essentially, if the person that you’re stepping in for has the right to use self-defense, then you can step in for them and assert that same.

But the same rules of individual self-defense apply:

  1. It needs to be immediately necessary. 
  2. You could not have been the instigator. 
  3. You can only respond proportionately with the force that was brought upon you. 
  4. You have to be in a legal position and not be breaking the law. 

For example, if someone pushes you, you can push them back. If someone exhibits a deadly weapon, then you can respond with a deadly weapon and so on. But it gets tricky. Over the years, the cases we’ve seen with a defensive third party get complicated because what ends up happening is the initial fight ends up in a group fight. Thus, one of the cardinal rules of justification for self-defense is that once you defend yourself, you have to stop. Once the harm is out of the way, you need to stop. Otherwise, the situation can often shift where you become the primary aggressor, and a whole new line of inquiry can begin. Thus, you better make sure that you know the person you’re defending.  

You are allowed to step into the shoes of another person and assert the same rights as self-defense, but you must keep in mind that the same rules apply for third party defense. 

We hope you have enjoyed this series on defense laws in Texas, as always. I encourage you to call attorney Steve Toland or call us here at Peek & Toland if you have any questions about those issues and 

We hope you’ll continue to tune in as we explore new issues moving forward and our show In Your Defense. 

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Posted in Criminal Defense

The Castle Doctrine and the Use of Deadly Force for Self-Defense in Texas

By Peek & Toland on August 6, 2020

Over the years, I’m asked the most about the castle doctrine and the use of deadly force.

What is the Castle Doctrine?
Castle doctrine comes from a Texas law that was passed in 2007 related to deadly force. It’s not as complicated as you first might think.

Castle doctrine says you are presumed to be reasonable, as long as you didn’t provoke the incident, as well as you’re not in the middle of committing a crime. So, if you are reasonable in your belief that someone is breaking into your home, or if someone is forcibly trying to remove you unlawfully from your home, car, or workplace, the castle doctrine comes into play. It covers your home, your car, and your work. And it says that you’re going to be reasonable, and you’re not going to have to prove through asserting a preponderance of the evidence back to the government.

How is Texas Different?

Now let’s talk about a couple of examples because Texas is unique in how they define a home. Texas defines a home as a habitation. So a habitation is your home itself where you’re sleeping, but it does not cover your garage if it’s not connected to your home. It does not cover your outhouse or a shed or where you might keep gardening or lawn equipment. It does not include your home office if it is not connected to your main homestead. Believe it or not, the architectural plans and the makeup of your house would be extremely relevant if you were trying to figure out whether the castle doctrine and the use of deadly force defense applies.

If you have any questions about this issue, God forbid that problem ever happens to you personally. But if it does, we are here to help. We have lots of experience in this area of force and deadly force and would be happy to answer any questions. Please reach out to attorney Steve Toland or us at Peek & Toland.

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Posted in Criminal Defense

Examples That Do Not Justify the Use of Force as Self-Defense in Texas

By Peek & Toland on August 6, 2020

1. Consent to an activity 

You consent to an activity, and it’s agreed upon that people are going to use force upon one another. For example, boxing, football, and soccer, but it has to follow the rules of the game. If you consent to that, you can’t justify getting hit, and then argue self-defense when you hit someone back.

2. Resisting Lawful Arrest 

Even if the arrest turns out to be a mistake, that sounds counterintuitive, but let’s say the police come and arrest John Smith. And it turns out that you’re John Edward Smith, and you’re not the same person. Still, if the police come and arrest you peacefully without using excessive force upon you, you can’t resist arrest, use force, hit the police officer, and justify your actions through self-defense. 

3. Words Alone 

Words alone can never be enough to justify you using physical force upon another person. As a general rule, if you’re out in public, words alone aren’t enough to warrant you using force on the other person. 

4. If you are the one that provokes the situation

You can never justify self-defense when you’re the person that provoked the situation. You can’t create a situation that justifies you using force on someone. For example, let’s say you pick a fight with your arch enemy using words, and the conflict escalates to physical interaction. Well, if you started the situation, you can’t use self-defense later.

As we continue our discussion, we’re going to talk about defensive third parties and the use of deadly force defending yourself, defending yourself at your home, car, or your workplace. Texas has some particular examples of the castle doctrine. We’re going to dive into that in the next couple of series here on In Your Defense. Stay tuned. 

We encourage you to reach out to attorney Steve Toland if you have any questions about defenses of property, defenses of self, or any justification defenses. 

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Posted in Criminal Defense

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Can Immigration Check Your Cell Phone? | Immigration Wednesdays

By Peek & Toland on August 5, 2020

Attorney Jeff Peek will discuss the following question often asked by clients:

Can immigration search yourself cell phone when you come through an international checkpoint or airport? 

Most of you are aware of the fourth amendment and protecting your rights against unreasonable searches and seizures from the government. The fourth amendment says, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…” 

There are two notable exceptions to the fourth amendment. 

The first exception is searches incident to arrest. Meaning you’ve been arrested. The cops handcuffing you, maybe let’s say a perfect example is driving while intoxicated. At that point, he’s going to pat you down. He’s doing that for his safety, for your safety to make sure there’s no contraband, make sure there are no weapons. But what happens when they find a cell phone in the pocket? At that point, historically, cops used to check your cell phone, which was used as a vital piece of information. But there’s a critical Supreme Court case, 2014 Riley v. California. For the first time, it protected a person from having the police officer check their cell phone if they had it on them during the arrest. Riley said if you have that kind of suspicion, you better get a warrant and show it. So it took away the ability to search a cell phone, from that exception to the fourth amendment. 

Another exception to the fourth amendment is, any time you come through the airport checkpoints or any port of entry to the United States after international travel. You’re subjecting yourself to revision at that point. You don’t have the right to say, “Oh, you can’t search my, my luggage; that’s my personal effects.” They have a right to search for it. And right up to this point, immigration officers and customs officials can search those cell phones when you come in. It was very uncomfortable for a citizen named George Anibowei, who recently came in through Dallas-Fort Worth airport. He’s a naturalized U.S. citizen and a lawyer. He was going through customs when they wanted to search his cell phone. That bothered this lawyer because, first, just the privacy violation, but also because he’s representing clients who are suing the federal government for various things. He had information potentially on his phone revolving those cases. So, he is currently with a lawsuit pending that’s in the fifth circuit on appeal right now.

This topic has already been meted out by a couple of circuit courts in the country:

  • The 11th circuit felt it was constitutional at border checkpoints, that border officers could indeed review your cell phone without a warrant. 
  • The 9th circuit says they at least have to have reasonable suspicion. 
  • The 4th circuit says, “Hey, that’s unconstitutional; you will need a warrant.” 

We now have various courts who have disagreements about the standard that should be used.

As somebody who greatly values his fourth amendment right, I hope that this 5th circuit comes back and says, “We don’t feel comfortable authorizing searches of people’s papers and effects that exist in these cell phones.” 

That’s all we have today, we’ll see you next Wednesday with more interesting immigration information.

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Posted in Immigration, Interesting

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