What is an Allocution Under Texas Law?

By Peek & Toland on February 12, 2020

Under Texas law, defendants in criminal cases have the right to make a statement in the courtroom before the judge issues their sentences, which is referred to as an allocution. Texas CCP § 42.07 instructs judges to ask defendants if they have anything to say as to why they should not receive a specific sentence from the court. This procedural requirement, or opportunity for an allocution, occurs following a criminal trial or after the parties have submitted a plea bargain to the court for approval.

What is an Allocution Under Texas Law?

In most cases, defendants exercise their right to remain silent and do not make a statement to the court. Especially when defendants have signed plea agreements, and they know what sentence they will receive from the court, defendants have no reason or need to speak. The most common circumstance in which defendants engage in an allocution is when the court is going to sentence them, and there has been no plea agreement. As a result, they do not know what sentence they will receive for the crime, so they may want to take one last chance to speak before they receive their sentences.

If judges forget or fail to ask if the defendants want to speak before sentencing, defendants (or their defense lawyers) must object in open court. Otherwise, defendants will waive their rights to allocution.

Texas CCP § 42.03 also gives crime victims the right to allocution in some situations. In contrast to a defendant’s right to allocution, a crime victim only has the right to address a defendant after the judge has announced the defendant’s sentence for the crime. Victims of crimes in these circumstances are free to express their views about the crime and the defendant’s actions. The defendants have no right to respond to crime victim allocutions. However, victim allocutions will not have an impact on the sentence that the defendants receive, because victims do not speak until the defendants already have received their sentences.

If you or a family member is facing any criminal charges, we may be able to help. As experienced Texas criminal defense attorneys, we have the knowledge needed to help you navigate through often-complex criminal proceedings. Call us today at (512) 474-4445 and schedule an appointment with one of our criminal defense lawyers and learn how we can assist you.

Posted in Criminal Defense

U.S. Puts Brakes on Refugee Resettlement Program, Leaving Hundreds in Limbo

By Peek & Toland on February 10, 2020

According to a recent CNN article, the U.S. halted the refugee resettlement program in October 2019 altogether. The move left hundreds of refugees stranded and in limbo after the U.S. canceled their incoming flights. This lapse in the resettlement program extended through November 5, 2019. Soon after that date, about 600 refugees of FFY 2020 entered the country as the Trump Administration resumed program operations.

In conjunction with this delay, the Trump Administration issued executive orders that both drastically reduced the refugee resettlement cap to 18,000 for FFY 2020 and allowed states and cities to begin objecting to refugees being resettled in their communities by requiring their written permission before resettlement occurs. In the history of the 40-year program, states and cities have never been able to refuse the resettlement of refugees.

U.S. Puts Brakes on Refugee Resettlement Program, Leaving Hundreds in Limbo

In response to the executive orders, three refugee resettlement agencies now have filed suit against the Trump Administration. These agencies content that the order will irreparably harm the program, which already has experienced an 80% drop in refugee admissions since the President took office.

The impact to this program is of particular interest to the state of Texas, which has more refugee resettlements than in any other state. Active resettlement programs in major Texas cities such as Houston, Dallas-Fort Worth, Austin, and San Antonio have well-organized procedures in place to welcome new refugees and large immigrant populations. Nonetheless, the state government has often opposed resettlement efforts, especially under the leadership of Governor Greg Abbott, who frequently spars with local government authorities over programs that he views as overly “socialistic.” Whatever your situation may be, you will need skilled legal assistance to work toward a resolution of your immigration matter.

The Texas immigration attorneys of Peek & Toland know how to help you navigate through the maze of immigration forms, regulations, and policies, and get the relief that you need. Take the first step today and secure the future of your family in the U.S. Contact our office today and set up an evaluation with one of our highly skilled Texas immigration lawyers.

Posted in Immigration Reform

What is an Occupational Driver’s License?

By Peek & Toland on February 6, 2020

An occupational driver’s license (ODL) allows eligible individuals to legally drive even after their licenses have been suspended or revoked. This special restricted license will enable you to drive a personal vehicle back and forth to work and school, as well as to run essential errands, such as getting medical attention and groceries.

What is an Occupational Driver’s License?

You must get a court order finding that you are eligible for an ODL and telling the Texas Department of Public Safety (DPS) to allow you to get an ODL. However, not everyone qualifies for an ODL. For instance, you are ineligible for an ODL if you:

  • Lost your license due to physical or mental disabilities
  • Lost your license due to a failure to pay child support
  • Need your license to drive a commercial motor vehicle
  • Are a threat to public safety if permitted to drive
  • Do not have an essential household need that requires you to drive
  • Received two ODLs in the past ten years following a conviction that affected your license

Another situation that might make you ineligible for an ODL is if you have a hard suspension waiting period because of a previous DWI arrest or conviction. For example, if your license was suspended because you refused to take a breath test when arrested for DWI and you had a license suspension due to an alcohol or drug-related arrest within the previous five years, you are subject to a 90-day hard suspension. This means that you cannot get an ODL during those 90 days.

Once the judge orders that you are eligible for an ODL, you can use a certified copy of the court order as proof of your ODL for up to 45 days after the effective date of the order. You typically will receive your official ODL from DPS during that timeframe. If you don’t receive it within those 45 days, however, you cannot drive until you receive it or go back to court to get the deadline extended. 

When you are facing any criminal charges in the state of Texas, you need an experienced criminal defense attorney to represent your interests. Contact Peek & Toland at (512) 474-4445 today and set up an appointment to speak with our legal team.

Posted in Criminal Defense

U.S. Detains Record Numbers of Unaccompanied Minors

By Peek & Toland on February 4, 2020

At the end of federal fiscal year 2019, U.S. Customs and Border Patrol (CBP) had detained more than 76,000 unaccompanied minors at the U.S.-Mexico border, which is a 52% increase over the number held in FFY 2018. About 10,400 of those children came from migrant, but the most significant percentage came from the Central American countries of Guatemala, Honduras, and El Salvador. The increase in total family units detained also increased exponentially from FFY 2018 to FFY 2019. CBP detained over 473,000 families at the border, as opposed to about 107,000 in FFY 2018, which represents a 342% increase.

The Trump Administration has unsuccessfully fought to deter unaccompanied minors from entering the U.S. by separating families at the border and making it more difficult for minors to apply for asylum. Mexico has experienced similar increases in the number of unaccompanied children attempting to enter that country. When Mexico detains children, however, they immediately go into the national child protection system to find them housing and care.

U.S. Detains Record Numbers of Unaccompanied Minors

Some experts say that it is the vast increases in detention rates for families and unaccompanied minors that have clogged up an already overburdened immigration court system. The current system of detention and court proceedings is not designed to handle families and children, which makes the current surges in migrant families at the border unsustainable.

While most migrant families and children now are returned to Mexico to await their chance to apply for asylum, conditions have worsened and grown more dangerous at the border. Mexico does not have the shelters, food, or other resources to handle the massive influx of families, who often must wait for months at the border before being able to apply for asylum. Crime also has increased in this area of the country, along with injuries and deaths to children and families.

The immigration attorneys of Peek & Toland have the experience that you need when you are seeking any relief or benefit under federal immigration laws. We will determine the facts and evidence that are relevant to your case, evaluate your options, and help you decide the best course of action for your situation. We intend to place you in the best position possible to achieve your goals. Contact our Texas immigration attorneys at our office today and learn how we can assist you through this complicated situation.

Posted in Asylum

DOJ Changes Immigration Judge Hiring Practices to Stack BIA

By Peek & Toland on January 29, 2020

With little fanfare, the Department of Justice (DOJ) has made significant changes to its hiring practices. The purpose of these changes is to populate the powerful Board of Immigration Appeals (BIA) with immigration judges whom immigration advocates have accused repeatedly of bias in their decisions. These rule changes are indicative of many of the steadily growing political nature of the immigration court system, which some claim has led to unfair and biased court proceedings.

The DOJ changed its hiring practices to add six immigration judges to the 21-member BIA in August 2019. All six judges have among the highest asylum denial rates of immigration judges throughout the country. In 2017, some of these judges also had the highest numbers of decisions that the BIA sent back to them for reconsideration. Individuals have filed public complaints against at least three of the six judges, although the Director of the Executive Office of Immigration Review noted no negative information about any of the judges that would preclude their appointments.

DOJ Changes Immigration Judge Hiring Practices to Stack BIA

Nonetheless, the DOJ appointed these six judges without subjecting them to the usual two-year probationary period. Instead, these six judges received a permanent position on the BIA, effective immediately. With no probationary period, it is virtually impossible to remove permanently appointed judges from office.

Furthermore, the DOJ paved the way for some candidates for the open BIA positions by no longer requiring that the judges work from a central location in Virginia. Instead, the BIA members can work remotely from any immigration court across the country. The new BIA members are also not limited to reviewing appellate cases, which is the typical function of the BIA. The new board members also may serve as trial immigration judges, as well as review appellate decisions. This dual appointment has never occurred before.

Traditionally, the BIA consists of board members from different backgrounds. Their job is to review judicial decisions from the immigration courts that parties have appealed. Three-member panels of the BIA can issue rulings that set binding precedents on various aspects of immigration law, including asylum and stays of deportation. As these decisions are binding, immigration judges and adjudicators must rely on these decisions in making rulings in future cases.

The immigration lawyers of Peek & Toland have handled the legal immigration matters of countless individuals and businesses. We are here to protect your rights and advocate on your behalf. Our goal is to get the best outcome possible in your situation. Call our office today at (512) 474-4445 to set up an appointment with our immigration attorneys.

Posted in Immigration

Drunk Driving Penalties for Individuals Under the Age of 21

By Peek & Toland on January 27, 2020

If you are a minor or under the age of 21, it is illegal for you to drive with any detectable amount of alcohol in your system. As a result, consuming any amount of beer, wine, or liquor could result in criminal charges of Driving Under the Influence of Alcohol by a Minor (DUIA by a Minor). The consequences of this offense vary according to your history of previous crimes and your age. For a first offense, you could face the following penalties for a Class C misdemeanor conviction:

  • A fine of up to $500
  • A 60-day driver license suspension
  • Completion of 20 to 40 hours of community service
  • Mandatory attendance at an alcohol awareness class

The penalties can increase, even for a first-time offense, if you are over the age of 17 and are caught driving with a blood alcohol concentration (BAC) of .08 percent or higher. In this situation, you can face a fine of up to $2,000, three to 180 days in jail, and a license suspension ranging from 90 days to one year. In most cases, individuals generally do not face jail time for a first offense, but older minors often will be required to serve some jail time for a second or subsequent offense.

Drunk Driving Penalties for Individuals Under the Age of 21

Not surprisingly, second and subsequent drinking and driving offenses for minors carry the potential for more significant penalties than those that might result from a first offense. For instance, the license suspension for a second offense for a minor is typically 120 days and increases to 180 days for third and subsequent offenses.

Minors also are subject to the state implied consent law, which subjects individuals to license suspensions when they refuse to take a chemical test for their BAC during a DWI arrest. Minors who refuse chemical testing can be subject to a 180-day license suspension for a first offense and a one-year suspension for a second offense. 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 then can 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 DWI

DPS Crime Lab Backlog Exceeds 2,500 Cases

By Peek & Toland on January 23, 2020

The Texas Department of Public Safety (DPS) Director, Steven C. McCraw, recently acknowledged to the state House of Representatives Transportation Committee, which funds DPS, that the agency’s crime lab is unable to keep up with forensic evidence requests. The backlog is adversely affecting the proper functioning of the criminal justice system, as defendants linger in jail for months or even years awaiting test results. McCraw attributed the backlog to high rates of staff turnover and the length of time necessary to hire and train new staff, which can average about 18 months. For instance, McCraw pointed out that the Welasco crime lab had not been fully staffed in five years.

DPS Crime Lab Backlog Exceeds 2,500 Cases

DPS revealed that as of September 17, 2019, the Weslaco crime lab had over 2,650 unreleased evidence requests. Almost half of that total was unreleased biology and DNA requests. DNA test results are especially crucial to both prosecutors and defense attorneys in many criminal cases, as these results have the potential to prove guilt or innocence.

Currently, the average processing time for forensic biology testing is 218 days, and for DNA testing, 300 days. Firearms testing cases average 228 days, and fingerprint testing cases average 255 days. On the other hand, drug cases typically take 90 days to process. DPS does prioritize some cases, such as those that involve threats to public safety, high profile incidents, and situations in which defendants may be incarcerated for lengthy periods pending test results.

DPS has received just under 6,000 requests for evidence testing this year alone. The bulk of these tests involve toxicology and seized drugs. Still, DPS has released test results in over 6,000 cases this year, as well. If you or a family member is facing weapons charges or any other criminal charges, we may be able to help. As experienced Texas criminal defense attorneys, we have the knowledge needed to help you navigate through often-complex criminal proceedings. Call us today at (512) 474-4445 and schedule an appointment with one of our criminal defense lawyers and learn how we can assist you.

Posted in Criminal Defense

New Restrictions on H-1B Visas

By Peek & Toland on January 21, 2020

According to a recent Forbes article, the year 2020 promises new restrictions on H-1B visas that are likely to decrease the number of H-1B visas further that the federal government issues. First, employers will be required to participate in electronic registration by paying a $10 fee and providing some information about their proposed applications. These registrations then are placed in a lottery each April for the 65,000 available H-1B visas and the 20,000 cap-exempt visas for individuals with advanced degrees from U.S. colleges and universities. As a result of the ease with which employers can enter the lottery at a relatively low cost, many expect that the electronic registration process will increase the number of applicants significantly. This process could have the effect of pushing out smaller employers in favor of larger employers with more applications. Additionally, since details on the selection and timing of applications following the lottery have been somewhat unclear, employers anticipate time pressures to figure into the ability to submit H-1B visa applications.

Another new development concerns an anticipated rule that would redefine “specialty occupation,” “employment,” and the “employer-employee relationship.” For instance, internal USCIS documents have revealed a proposal to exclude computer programming from specialty occupations. Another possibility is that professions that do not require a minimum of a bachelor’s degree would not qualify as specialty occupations. Redefining “employment” also could affect information technology (IT) service companies, which already are seeing a much higher denial rate of their H-1B visa applications.

New Restrictions on H-1B Visas

Various other policies that could impact H-1B visas are currently the subject of litigation, whose outcomes are uncertain at this point. One such issue relates to the Non-Speculative Work Rule, under which U.S. Citizenship and Immigration Services (USCIS) has demanded that companies provide a list of all work assignments that an H-1B visa holder will have for as many as three years into the future. This litigation is indicative of an increasing trend toward challenging H-1B visa denials in court.

Our goal is to assist you with your immigration concerns, whether family or business-based. We can evaluate your situation and develop a strategy that is most likely to be efficient and effective in your case. Regardless of the immigration matter that you are facing, the attorneys of Peek & Toland have the experience, knowledge, and reputation that you want and need to advocate on your behalf. When results matter most, contact us at (512) 474-4445.

Posted in Visas

Proposed Changes to Rules for H1-B, H-4, and Various Other Visas

By Peek & Toland on January 20, 2020

According to a recent Forbes article, the Department of Homeland Security (DHS) has issued a document that outlines the proposed rules that it intends to put into effect in 2020. These rules will have far-reaching implications for employers, international students, foreign workers and investors, and individuals who are seeking asylum.

First, DHS intends to further tighten the restrictions on the H-1B visa program for skilled foreign workers. Denial rates for this popular visa program already have quadrupled over the past four years. The DHS unified agenda states that it will continue to take steps to ensure that only the best foreign nationals obtain visas through this program. It intends to revise the definition of the employer-employee relationship for the visa program and ensure that U.S. employers are paying appropriate wages to these visa holders. These changes, which DHS already appears to be informally implementing, given the suddenly high denial rates, are harming IT services companies and positions for computer programmers, who seem to be subject to increased scrutiny in recent years.

Proposed Changes to Rules for H1-B, H-4, and Various Other Visas

Another aspect of the H-1B program that the Trump Administration long has vowed to change is the work authorization for many H-4 spouses of H-1B visa holders. Over the past several years, these individuals have received work permits that allow them to work in the U.S. while their spouses were H-1B visa holders, a feature that made the visa program much more attractive for many foreign nationals. DHS intends to publish the proposed rule in March 2020.

DHS also has announced proposed changes to the L-1 visas by revamping the definition of the employer-employee relationship and ensuring that U.S. employers pay these workers appropriate wages. U.S. companies report, however, that DHS already has cracked down on the L-1 visa program substantially. Informal policy changes to this visa program have led to 80 to 90% denial rates at U.S. consulates in India, and similar denial rates at U.S. consulates in China. Many of these denials are based on allegations by consular officials that U.S. companies should have only a limited number of employees with specialized knowledge. However, there is no basis in the law for this restriction.

The Trump Administration also is planning to move toward the elimination of the Optional Practical Training (OPT) program, which allows international students to work in the U.S. for limited periods in specific fields following graduation. Another change that could affect international students is the intention of DHS to block students from re-entering the U.S. for ten years if they violate their immigration status, even unknowingly, while attending U.S. colleges and universities.

An experienced Texas immigration attorney can help you with all aspects of immigration law. We are here to evaluate the facts surrounding your case and present your options. Finally, we can help you make the decisions that will be most beneficial to you based on your circumstances. Contact Peek & Toland at (512) 474-4445 today and see how we can help.

Posted in Immigration Reform, Visas

House Reaches Agricultural Immigration Reform Agreement

By Peek & Toland on January 17, 2020

House members introduced the Farm Workforce Modernization Act, which is a bipartisan bill that would offer a path to citizenship for undocumented farmworkers. The bill also establishes funding for farmworker housing and aid programs. The purpose of this bill is to modernize the H-2A visa guest worker program and ensure worker rights to safe working conditions and fair wages. The bipartisan authors of the bill, Representatives Zoe Lofgren (D-California) and Dan Newhouse (R-Washington), called it a compromise solution that offers stability for American farms.

Under the proposed legislation, an uncapped number of visas would become available for farmworkers through a merit-based system, called Certified Agricultural Worker (CAW) status. These visas would last for five-and-a-half years and be renewable. Existing undocumented immigrant farmworkers would be eligible to enroll in the program if they worked at least 180 days over two years or 100 days over three years in the agricultural industry. Farmworkers also would undergo a criminal background check.

Applications would be available for only 18 months after the effective date of the law, with the option for the Department of Homeland Security to extend the application period for an additional one year. CAW applicants would receive interim work authorization after applying for this visa program. Qualified workers would not have to return to their home countries to apply.

House Reaches Agricultural Immigration Reform Agreement

Individuals who complete eight years of CAW status would be eligible to apply for green cards. A path to citizenship via green card also would be available for individuals who completed four years of CAW status and who have ten years of previous agricultural work experience.

The bill also would establish a mandatory nationwide E-Verify system for all agricultural workers. Various organizations representing both farmers and farmworkers support the bill, including Western Growers, United Farmworkers, National Milk Producers Federation, and the National Council of Farmer Cooperatives. An experienced Texas immigration attorney can help you with all aspects of immigration law. We are here to evaluate the facts surrounding your case and present your options. Finally, we can help you make the decisions that will be most beneficial to you based on your circumstances. Contact Peek & Toland at (512) 474-4445 today and see how we can help.

Posted in Immigration Reform

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