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Public Charge Changes to Immigration Law: What does this mean for immigrants seeking green cards or to renew their visa stays?

By Peek & Toland on September 24, 2019

A large component of U.S. immigration law since its inception has been the idea that immigrants seeking to become legal permanent residents and citizens must demonstrate their ability to care for themselves without becoming public charges of the State. In the past, this rule has been quite ambiguous. To combat this, DHS recently clarified the rules of inadmissibility of public charges.

On August 14, 2019, the U.S. Department of Homeland Security (DHS) clarified it’s rules on Inadmissibility of Public Charge Grounds, which codified regulations governing the application of the public charge inadmissibility ground under INA section 212(a)(4).

The rule changes the definitions of public charge and public benefits and changes the standard that DHS uses when determining whether an immigrant is likely to become a “public charge” and thus inadmissible and ineligible for admission or adjustment of status. 

When does this new rule apply?

This rule change specifically applies in the following three scenarios:

  • When an immigrant is seeking to adjust his or her status to become a lawful permanent resident (green card holder) in the U.S.
  • When an immigrant holds a nonimmigrant visa and seeks to extend their stay in the same nonimmigrant classification.
  • When an immigrant holds a nonimmigrant visa and seeks to change their status to a different nonimmigrant classification.

What will DHS consider to be public benefits when considering eligibility?

As part of its determination, DHS will consider the following public benefits when considering eligibility:

  • Any federal, state, local, or tribal cash assistance for income maintenance   
  • Supplemental Security Income (SSI) 
  • Temporary Assistance for Needy Families (TANF) 
  • Federal, state or local cash benefit programs for income maintenance (often called “General Assistance” in the state context, but which may exist under other names)  
  • Supplemental Nutrition Assistance Program (SNAP, or formerly called “Food Stamps”) 
  • Section 8 Housing Assistance under the Housing Choice Voucher Program 
  • Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation)  
  • Public Housing under section 9 the Housing Act of 1937, 42 U.S.C. 1437 et seq. 
  • Federally funded Medicaid (with certain exclusions

Note that DHS has stated that non-cash benefits are generally not taken into account for the public of a public charge determination.

What are some examples of non-cash benefits that are NOT CONSIDERED public charge under this new rule?

Non-cash or special-purpose cash benefits are generally supplemental in nature and do not make a person primarily dependent on the government for subsistence. Therefore, past, current, or future receipt of these benefits do not impact a public charge determination. Non-cash or special-purpose cash benefits that are not considered for public charge purposes include:

  • Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases; use of health clinics, short-term rehabilitation services, and emergency medical services) other than support for long-term institutional care
  • Children’s Health Insurance Program (CHIP)
  • Nutrition programs, including Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs
  • Housing benefits
  • Child care services
  • Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)
  • Emergency disaster relief
  • Foster care and adoption assistance
  • Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary, or higher education
  • Job training programs
  • In-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)

State and local programs that are similar to the federal programs listed above are also generally not considered for public charge purposes.

What has DHS said it will not consider when determining eligibility?

DHS clarified it will only apply the rule when the applicant received the benefit him or herself or where the applicant is the listed beneficiary of the public benefit. DHS will not attribute receipt of public benefit by one or more members of the applicant’s household to the applicant unless the applicant is also a listed beneficiary of the public benefit.

In other words, if your family member is participating in Medicaid, if your child is receiving Medicaid, or if your family members is receiving supplemental security income, this will not be counted against you in your application. This rule only applies if you receive this public benefit as well.

In making this determination, DHS stated it will not consider:  

  • The receipt of Medicaid for the treatment of an emergency medical condition;  
  • Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act;  
  • School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under state or local law;  
  • Medicaid benefits received by an alien under 21 years of age; or  
  • Medicaid benefits received by a woman during pregnancy and during the 60-day period beginning on the last day of the pregnancy.   

What time period must an immigrant receive public assistance for them to become ineligible under this rule?

DHS has stated that if the immigrant receives public benefits for more than 12 months in aggregate in any 36-month period, such that receipt of two benefits in one month counts as two months.

How will DHS determine if someone is “likely to become a public charge”?

DHS stated that it must weigh the negative and positive factors that may contribute to an immigrant’s potential to “likely at any time become a public charge”. Thus, DHS must consider the applicant’s:

  1. Age
  2. Health
  3. Family Status
  4. Assets, resources, and financial status;
  5. Education and skills;
  6. Prospective immigration status;
  7. Expected period of admission; and
  8. Sufficient form I-864.

Finally, DHS said the following factors weigh heavily in favor of finding an immigrant likely at the time to become a public charge:

  • The immigrant is not a full-time student is authorized to work but cannot show current employment, recent employment history, and a reasonable prospect of future employment
  • The immigrant has received or has been certified or approved to receive, one or more public benefits for more than 12 months in the aggregate within any 36-month period, beginning no earlier than 36 months before the alien applied for admission or adjustment of status on or after Oct. 15, 2019. 
  • The immigrant has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with his or her ability to provide for him or herself, attend school, or work and he or she is uninsured and has neither the prospect of obtaining private health insurance nor the financial resources to pay for reasonably foreseeable medical costs related to a medical condition. 
  • The immigrant has previously been found by an immigration judge or the Board of Immigration Appeals to be inadmissible or deportable based on public charge grounds.  

What factors help an immigrant demonstrate he or she is not likely to become a public charge?

  • The immigrant has household income, assets, resources, and support from a sponsor, excluding any income from illegal activities or from public benefits, of at least 250% of the Federal Poverty Guidelines for his or her household size. 
  • The immigrant is authorized to work and is currently employed in a legal industry with an annual income of at least 250% of the Federal Poverty Guidelines for a household of his or her household size. 
  • The immigrant has private health insurance appropriate for the expected period of admission, so long as the alien does not receive subsidies in the form of premium tax credits under the Patient Protection and Affordable Care Act to pay for such health insurance. 

Are there any exempt parties to the rule?

There are certain groups of people who are either exempt from public charge, or may get a waiver for public charge when applying for a Green Card or other benefits with USCIS. These include:

  • Refugees
  • Asylum applicants
  • Refugees and asylees applying for adjustment to permanent resident status
  • Amerasian Immigrants (for their initial admission)
  • Individuals granted relief under the Cuban Adjustment Act (CAA)
  • Individuals granted relief under the Nicaraguan and Central American Relief Act (NACARA)
  • Individuals granted relief under the Haitian Refugee Immigration Fairness Act (HRIFA)
  • Individuals applying for a T Visa
  • Individuals applying for a U Visa
  • Individuals who possess a T visa and are trying to become a permanent resident (get a Green Card)
  • Individuals who possess a U visa and are trying to become a permanent resident (get a Green Card)
  • Applicants for Temporary Protected Status (TPS)
  • Certain applicants under the LIFE Act Provisions

Are military service members who are actively enlisted or serving in the U.S. armed forces subject to this rule?

No. DHS clarified that this rule does not consider the receipt of designated public benefits received by an immigrant who is serving actively in the U.S. armed forces or in any Read Reserve component of the U.S. armed forces to be part of the group who receives public benefits by spouse and children.

If you are considering adjusting your status or extending or changing your nonimmigrant visa, you should be sure to have an experienced immigration attorney by your side to help advise you on the public charge rule change and ensure your application and the process goes smoothly for you. To set up an appointment or meet with an experienced immigration attorney, contact our office at 512-474-4445.

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Report Shows Austin Police More Likely to Stop Black and Hispanic Drivers

By Peek & Toland on May 11, 2019

The Austin Police Department recently released a racial profiling report indicating that when police officers pulled over black and Hispanic drivers in 2018, they were twice as likely to search them and their vehicles for contraband, as compared to white drivers whom they pulled over. Overall, officers searched only 6% of white drivers during traffic stops, as opposed to 14% of Hispanic drivers and 17% of black drivers.

Nonetheless, of the drivers whom police officers searched, Hispanic and black drivers were only slightly more likely to be in possession of contraband. These searches resulted in police finding contraband about 30% of the time, regardless of the driver’s race. More specifically, the rates of finding contraband were 27% for white drivers, 30% of Hispanic drivers, and 31% of black drivers during traffic stops.

Report Shows Austin Police More Likely to Stop Black and Hispanic Drivers

This report is in line with previous reports from the Austin Police Department. In 2017, for example, the report showed that police officers searched Hispanic drivers whom they pulled over twice as often as white drivers, and black drivers three times as often as white drivers.

According to the police chief, part of these numbers may be that the department assigns more officers to part of the city with high crime rates. These same areas tend to be less affluent neighborhoods with disproportionately higher numbers of minorities. As a result, more traffic stops tend to occur in these same areas, which may give rise to some of the reasoning behind the searches of drivers pulled over during traffic stops.

The Austin Police Department has taken steps in recent years to put all officers through fairness and impartiality training in order recognize and address biases. The Department also provides ongoing training to ensure as much racial equity as possible. The criminal defense lawyers of Peek & Toland have handled the legal defense of countless individuals who are facing criminal charges, including charges involving bribery. We are here to protect your rights and advocate on your behalf in order 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 today.

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What is an I Visa?

By Peek & Toland on March 3, 2019

All citizens of foreign countries who wish to enter the U.S., either permanently or temporarily, must do so pursuant to some sort of visa. Many types of visas are available, and among those visas is the I visa for foreign members of the media.

According to the U.S. Department of State – Consular Affairs, members of the foreign media, whether representing press, radio, film, or print industries, may use an I visa to temporarily travel to the U.S. to work in their profession. The individuals must be engaged in informational or educational media activities that are essential to the foreign media function. The media organization whose representatives wish to enter the U.S. temporarily on an I visa must have a home office in the foreign country. The activities occurring in the U.S. must be associated with the news-gathering process and reporting on current events.

Examples of individuals who might qualify to travel to the U.S. pursuant to an I visa include:

• Employees of public or private media in foreign countries filming a news event or documentary
• Foreign media members engaged in the production or distribution of foreign films
• Journalists working on news or information stories
• Accredited representatives of foreign tourist bureaus
• Employees of organizations that distribute technical industrial information who will work in the U.S. offices of those organizations

What is an I Visa?

Members of the media generally must have credentials through their countries’ professional journalist association in order to qualify for I visas. Consular officials require individuals to undergo a personal interview before granting an I-visa, with the exception of children under the age of 13, adults over the age of 80, and some foreign media members who are renewing their visas.

No matter the type of immigration issue you are facing, the skilled and knowledgeable immigration lawyers of Peek & Toland are here to assist you. We handle many different types of immigration cases every day and have the kind of strategic experience and skills that are necessary to reach the desired outcome. By calling our office as quickly as possible after your legal issue arises, we will have the best opportunity to successfully resolve your immigration law case.

Posted in Immigration, Uncategorized

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What is the VIBE Program?

By Peek & Toland on January 12, 2019

According to U.S. Citizenship and Immigration Services (USCIS), the Validation Instrument for Business Enterprises (VIBE) program is a web-based tool that is designed to help USCIS more efficiently and uniformly adjudicate certain employment-based immigration petitions and applications. Essentially, VIBE uses commercially available data from Dun & Bradstreet, an independent information provider (IIP) to validate basic information about companies or organizations who are seeking to employ foreign nationals. Some of the information that USCIS receives through the VIBE program includes:

·         Type of business

·         Financial standing, in terms of sales volume and credit standing

·         Number of employees

·         Types of offices

·         Type of legal entity, date of establishment, and identification of company executives

By having this information immediately available from the IIP, USCIS can avoid having to solely rely on paper information provided by the petitioning company, which may be insufficient, in some cases. USCIS uses this information to ensure that the company is qualified to employ the foreign national as requested.

What is the VIBE Program?

USCIS does not rely exclusively on the information provided by VIBE in making its decisions on employment-based immigration petitions. Rather, it uses the information in conjunction with the information provided by the employer in its application to make decisions. If there are vast inconsistencies between the information provided by VIBE and by the employer, then USCIS will contact the employer to clarify and obtain additional information as needed. Once USCIS receives this information, it will make a decision on the application based on the totality of the circumstances.

While a private U.S. company or organization is not required to update its information with the IIP, Dun & Bradstreet, the company can create, verify, or correct the information that the IIP has. This can help minimizing inconsistences between the data that the IIP provides to USCIS and what the employer provides in its application.

No matter the type of immigration issue you are facing, the skilled and knowledgeable immigration lawyers of Peek & Toland are here to assist you. We handle many different types of immigration cases on a daily basis and have the kind of strategic experience and skills that are necessary to reach the desired outcome. By calling our office as quickly as possible after your legal issue arises, we will have the best opportunity to successfully resolve your immigration law case.

Posted in Immigration, Uncategorized

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Is It Possible to Abandon or Lose Your Permanent Resident Status?

By Peek & Toland on December 24, 2018

There are circumstances under which you can lose your permanent resident status. One of these circumstances is related to conditional permanent resident status, which is typically based on marriage or a qualifying investment. If, for example, U.S. Citizenship and Immigration Services (USCIS) later discovers that a marriage was fraudulent, they have the right to terminate your conditional permanent resident status.

 

Permanent Resident Status

If you are placed in deportation proceedings and an immigration court judge issues a final order of removal for you, then you also will lose your permanent resident status. For instance, if you are convicted of an aggravated felony or a crime of moral turpitude, you may be placed in removal proceedings. If the judge orders you removed following a hearing, then you are subject to losing your immigration status.

You also can intentionally abandon your permanent resident status in some cases. This might occur in the following circumstances:

·         You move to another country and intend to reside there permanently.

·         You remain outside of the U.S. for an extended period of time, unless you intend your absence to be temporary, as shown by:

o   The reason for your trip

o   How long you intend to be absent from the U.S.

o   Other circumstances related to your absence

o   Events that may have prolonged your absence (health problems, deaths, etc.)

o   Obtaining a reentry permit from USCIS before leaving (good for up to two years)

o   Obtaining SB-1 returning resident visa from a U.S. consulate while abroad

·         Failing to file income tax returns while living outside of the U.S. for any reason

·         Declaring yourself a nonimmigrant on your U.S. income tax returns

·         Choose to abandon your status and voluntarily surrender your green card for any reason

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

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Probation Violations in Texas

By Peek & Toland on December 4, 2018

While being sentenced to community supervision, or probation, as a result of a criminal offense is certainly preferable to jail, the court still has a significant amount of control over your life. Depending on the terms and conditions of your probation, you typically must report to a probation officer on a regular basis, pay fees, complete a certain number of hours of community service, undergo drug or alcohol testing, and seek permission from your probation officer before leaving the state.

If your probation officer believes that you have violated any of the terms of your probation, then he or she can file a motion to revoke your probation. If you are on deferred adjudication probation, then he or she can file a motion to adjudicate. Regardless of what is called, the results are the same; a motion to revoke or a motion to adjudicate both will result in a warrant for your arrest. After your arrest on a probation revocation, you must appear before a judge within 48 hours. However, only the judge who issued the arrest warrant can set bail for you in a probation revocation.

Probation Violations in Texas

You also have the right to be represented by counsel at a court hearing to determine whether you violated a condition of your probation. This hearing is very important, because it will be your only chance to explain why you don’t believe that you have violated your probation. As a result, contacting an attorney as soon as you believe that you may become subject to a probation violation is crucial.

Some common probation violations may include:

·         Being charged with a new criminal offense while on probation

·         Failing a drug or alcohol test

·         Not reporting to your probation officer as scheduled

·         Failing to complete community service hours as ordered

When you are charged with any type of criminal offense in the state of Texas, including probation violations, you need an experienced criminal defense attorney to represent your interests from the very beginning of your case. We are here to evaluate the facts surrounding your case, present your options, and provide you with the strongest defense possible. Contact Peek & Toland at (512) 474-4445 today and set up an appointment to speak with our legal team.

Posted in Drug Crimes, Uncategorized

SB 4 Requiring Police to Wrongfully Detain U.S. Citizens for ICE

By Peek & Toland on November 2, 2018

According to a recent policy brief issued by the Cato Institute, the passage of Texas law SB 4 will result in local law enforcement officials wrongfully detaining U.S. citizens upon a request from Immigration and Customs Enforcement (ICE). SB 4 made it illegal – with jail time, steep fines, and removal from office as potential penalties – for police to fail to detain anyone whom ICE requests them to detain.

 

SB 4 Requiring Police to Wrongfully Detain U.S. Citizens for ICE

For example, over a 12-year period ranging from 2005 to 2017, ICE officials requested Travis County law enforcement agencies detain 814 individuals who claimed U.S. citizenship and presented officials with a social security number. Ultimately, ICE ended up canceling or declining to execute about a quarter of their original requests, which means that at least 228 U.S. citizens were wrongfully detained by police in just one county in Texas. If the same rate of wrongful detainer applies statewide, then there are thousands of U.S. citizens who are wrongfully detained by local police in the state of Texas; that number does not even take into account the number of U.S. citizens whom ICE did take into custody from local law enforcement agencies and later release after determining them to be citizens.

SB4 requires local law enforcement agencies to detain individuals under threat of jail time, even if they are quite sure that they have detained a U.S. citizen. Law enforcement should have the flexibility to review these requests for detainer and release U.S. citizens if warranted, prior to ICE declining to execute on their requests or taking the individuals into custody and later releasing them.

The immigration attorneys of Peek & Toland have the experience that you need when you are seeking any type of relief under federal immigration laws, regardless of your situation. 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 case. It is our intention 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 and your family through this difficult situation.

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What Crimes Under Texas Law Can Cause You to Be Placed on the Sex Offender Registry?

By Peek & Toland on September 29, 2018

Convictions for over 20 types of criminal offenses in the state of Texas require individuals to register as a sex offender. Additionally, sex offender registration can be a condition of parole or community supervision, in some cases. Individuals convicted of similar sex offenses in other states also can be required to register if they move to Texas. Texas Code of Criminal Procedure Art. 62.001 et seq. sets forth the criminal offenses that subject individuals who must register as sex offenders, as well as the requirements imposed on those who must register.

If individuals are convicted of certain sex offenses in Texas, they must register for a ten-year period. These criminal offenses include prostitution under Texas Penal Code Sec. 43.02(c)(3), online solicitation of a minor, second indecent exposure offenses under Sec. 21.08, unlawful restraint, kidnapping, or aggravated kidnapping if the victim or intended victim was under the age of 17, and attempt, conspiracy, or solicitation to commit some sex offenses, among others.

What Crimes Under Texas Law Can Cause You to Be Placed on the Sex Offender Registry?

Other sex offenses under Texas law require lifetime registration for individuals who are convicted of them. Some of these offenses include:

·         Continuous sexual abuse of or indecency with a young child or children under Sec. 21.02 and 21.11 (a)(1)

·         Sexual assault and aggravated sexual assault

·         Sexual performance by a child

·         Possession or promotion of child porn

·         Prohibited sexual conduct

·         Trafficking of a person under Sec. 20A.02(a)(3), (4), (7), or (8)

·         Obscenity under Sec. 43.23(h)

Those individuals who are subject to Texas sex offender registration must comply with all of the requirements under Texas law. Some of these requirements include submission of a recent color photograph, a listing of the type of offense of which the individual was convicted, the age of the victim(s) involved in the offense, and a DNA sample. If individuals who are required to register as sex offenders spend more than 48 hours three times per month or more in a different municipality or county, they must provide certain information to the local law enforcement agency.

The criminal defense lawyers of Peek & Toland have handled the legal defense of countless individuals who are facing criminal charges, including sex offenses. We are here to protect your rights and advocate on your behalf in order 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 today.

Posted in Criminal Defense, Uncategorized

Heroin Charges Under Texas Law

By Peek & Toland on September 20, 2018

Facing heroin or any type of drug charges can be a frightening situation. Texas drug laws are notoriously harsh, and the highly addictive quality of heroin has caused it to be classified among the most dangerous of drugs. As a result, drug charges involving heroin are quite serious, can result in severe repercussions. No matter your situation, however, we are here to protect your rights and work toward minimizing any consequences of these criminal charges.

Heroin possession laws in Texas carry harsh penalties pursuant to the Texas Controlled Substances Act, as follows:

·         Less than one gram of heroin is a state jail felony with up to two years in prison and a $2,000 fine.

·         One to 3.99 grams is a third-degree felony with two to ten years in prison and a $10,000 fine.

·         Four to 199 grams is a second-degree felony with two to 20 years in prison and a $10,000 fine.

·         200-399 grams is a first-degree felony with five to 99 years in prison and a $10,000 fine.

·         400 grams or more is an enhanced first-degree felony with ten to 99 years in prison and a $100,000 fine.

 

Heroin Charges Under Texas Law

These figures represent the maximum penalties allowable under law, so actual punishments can fall on the lower end of the range, depending on the circumstances. However, keep in mind that these are only the penalties for possession of heroin. If there is evidence that you possessed heroin with intent to sell it, there can be separate and harsher penalties. Evidence of intent to sell can be possession of a very large amount of heroin and paraphernalia commonly using in selling drugs, such as baggies and scales.

At Peek & Toland, we are dedicated to protecting your rights and defending you from any potential criminal charges. We are here to investigate the facts surrounding your case, consider your options, and help you develop the strategy that is best designed to achieve a successful outcome in your case. Do not waste time attempting to handle legal matters on your own; contact our office as soon as you are charged with a criminal offense so that we can provide you with the help that we need.

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What is Expunction?

By Peek & Toland on September 3, 2018

Even if an individual is never convicted of a crime, criminal records remain. An individual’s arrest record, any criminal charges that were filed, and trial proceedings all will remain public records, even if a criminal case is ultimately dismissed or an individual is found not guilty. These records can have a negative effect on a person’s career, social life, and overall ability to function normally in society. Therefore, it is not uncommon for an individual in this situation to try and have those records removed from the public record.

What is Expunction?

The process of expunction, which is often referred to as expungement in other states, is available only in narrow circumstances under Texas law. This is the process that you must go through in order to get rid of criminal records. Essentially, expunction occurs when you file a lawsuit to clear your criminal record, or to have the records resulting from a criminal arrest destroyed. You may qualify for an expunction of your criminal records if you meet the following criteria:

  • You went to trial and were acquitted or found not guilty.
  • You were pardoned.
  • You completed pre-trial diversion or intervention.
  • Your criminal charges were dismissed due to fraud, a lack of probable cause, or a similar situation.
  • Your criminal charges were dismissed and unless it was a Class C misdemeanor, you had no court-ordered probation, and the statute of limitations has expired.

Additionally, many counties have their own policies and procedures regarding expunctions, so having an attorney who is accustomed to handling expunctions in the county at issue can be key to a quick and successful resolution of your case.

If you find yourself charged with any type of criminal offense, you need legal advice that only experienced Texas criminal defense attorneys can offer you. As a result, you should immediately contact a skilled defense lawyer for help if you have been accused of a criminal offense. Peek & Toland provides strong legal representation on a regular basis for individuals who are charged with various crimes. It is our priority is to represent your interests and protect your rights. Call us at (512) 474-4445 and schedule an appointment to speak with us today.

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