Transcript

Emily Doron: I think that telling our clients first and foremost to make a report and then having the opportunity to have a meeting with them and determine how we’d like to see it handled, whether or not the police officers or the agency listens, but at least vocalizing that, letting them know. I think that makes a big difference.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: Today I’m excited to welcome our own Emily Doron to the Texas Family Law Insiders podcast. Emily is an associate attorney at the Draper Law Firm. She grew up in Dallas and graduated from the American University in 2012 with a degree in criminal justice. She went on to obtain her law degree from the University of Texas at Austin. Prior to joining the Draper Law Firm, Emily spent five years working as an assistant district attorney in Collin County, where she worked on domestic violence offenses, violent felonies and narcotics cases. Emily also has experience with protective orders and CPS cases. When she’s not working, she enjoys spending time with her husband and daughters, reading, being outside and traveling. Thanks so much for joining us today.

Emily: Thanks for having me, Holly.

Holly: So why don’t you tell us a little bit about your background?

Emily: Sure. I grew up in the Dallas area. And after graduating from law school, I wanted to move back. And so I started right away at the Collin County DA’s office. I started out there trying misdemeanors. A lot of driving while intoxicated cases, a lot of petty drug cases. And then I moved into the domestic violence division for a couple of years. And I did protective orders and misdemeanor domestic violence cases at that time. About two and a half years into my career, I moved up to the felony trial team, and I tried all kinds of felony cases. Drug offenses, aggravated offenses, assaults, things of that sort. And then I started here at the Draper firm in January.

Holly: So now you’ve been here for nine months or so. So what is the biggest difference between practicing family law and your prior life in the DA’s office?

Emily: A lot of things are different, but there’s been a shockingly high amount of overlap. So things that are different is in the criminal world, you prepare for things, but you a lot of the times fly by the seat of your pants. You never know what the other side is going to bring in. And there’s a lot more back-end work in this world, the family law world. You have to be a lot more detail oriented in things like pleadings and motions. And I find that I interact with our clients substantially more, of course.

On the DA side, you don’t have clients who represent the state. You do have to talk to victims and people of that sort. But here, it’s more of a balancing act of, you know, considering the law on doing the right thing, and making sure that we’re zealously advocating for our clients, while also communicating that to our clients and making sure they’re on the same page and not only understand but agree with what we’re doing, and want us to proceed in that way. So that’s definitely a big change for me.

Holly: So I know you did a lot of jury trials, during your time at the DA’s office. How many roughly would you say you’ve done?

Emily: Around 30, where I was first chair.

Holly: Were most trials jury trials or bench trials?

Emily: Almost all of them were jury trials. There were only very specific cases that we would take to judges and that depended on the facts and the judge a whole lot of variables, but most of the time we went to a jury.

Holly: So the reason why I wanted to bring you on the podcast was, it has been shockingly valuable to have that criminal knowledge in our firm. And I kind of wanted to share that with other family lawyers a little bit and help them understand the value of, you know, having someone on your team who has that criminal background. And if you’re too small of an operation to have somebody if you’re solo or something like that, where you’re not going to have someone actually be on your team, to have relationships with people who have that knowledge.

Because there are so many things, you know, I think back on the years of doing family law, where we just assumed like if couldn’t pull it up on the district clerk’s website that it didn’t exist. Or that you know, there were limited ways of us finding out information and having you work with us, we’ve certainly learned there are a lot more, a lot more ways to get that information out there. And it’s been immensely helpful. So how do you feel that your prior experience working as a prosecutor helped you in family law?

Emily: So I think the connections I’ve made obviously are huge. I do have contacts that I can reach out to and obviously they have rules and regulations that they have to follow. But can I you know, do I need to look into this? Or is this something you could tell me about or do I need to file the appropriate paperwork. And that’s been very helpful. And also, like you said, knowing that things exist beyond the scope of the website that what we can see and knowing that it’s worth digging into has helped.

On top of that, I think that the background in the courtroom has been huge. I have that experience and it’s given me a lot of confidence that no matter what I know, I can handle myself in a courtroom. I know that, you know, things can get thrown at you or questions can get asked. And I know that I may have to take a beat and think, but that I can handle it. And then I can take those questions or whatever comes up in a courtroom. I think that’s been very helpful, at least in several of the cases that I’ve already had to handle.

And that ability to pivot has helped in a courtroom. And also in just case strategy. We have conversations amongst ourselves amongst the other attorneys of what do you think of this? Could we try this? And I think that not only being new to family law, but also having that background allows me to look at things a little bit differently. Sometimes when you spend so many years focusing on something, on the law, on the code, on what we expect judges to do, it’s hard to think outside of that.

And to come up with a creative solution that may work or may not, sometimes, but may work in a situation. And being new to this. And having that different way of thinking, I think it has helped. And then I think the other strong thing is being able to talk to people. Going through something really difficult, whether it’s a victim, or in this case, someone going through a traumatic event in their personal life, divorce, child custody, learning how to do that was invaluable.

Holly: So kind of going back to one thing both of us have touched on is the ability to know what’s out there and find documents or information beyond what we can just find on the clerk’s website. What are some sources that family lawyers can look to if they think someone’s been arrested? Or they think there’s prior history involving criminal issues? Where should we be looking?

Emily: Don’t be afraid to just make a phone call. Sometimes you can call a police department and just ask are there records involving this person. They may not be able to tell you what specifically in those records, but that can tell you if it’s worth your time to make an open records request. Everybody in the state of Texas has to comply with those. They have to respond to them within 10 business days. If there’s an ongoing open investigation, you may get an email of sorry, we can’t give you anything. But at least then you know, there’s an open ongoing investigation. That’s a different answer than nothing exists.

On top of which a lot of times they will give you those records. You may get offense reports, there’s videos, every police officer, most police officers wear body cameras in the state of Texas now. Lots of things are set on those that may not appear in a report. Officers are tired, they’re exhausted when they’re writing those reports, it’s after their shift is ended or it’s two o’clock in the morning. And they that’s not their favorite part of the job.

So knowing to check for those things is helpful. And sometimes just to call and getting the right person in the records department of the police office, the police officers will tell you. They may just say yeah, you can make that request, we’ve got records. Same thing with CPS cases, you can call the CPS officer, or whoever it may be, and they with a letter of representation will almost always talk to you. They’ll tell you why they’re investigating. What they found out.

I think people assume someone is not going to share information with you. And they often will, with the right documentation, they often will share that and are open to doing it. The DA’s office may or may not share that information. But they have to follow with that same rule of open records request that as long as the case is already closed, they have to provide that information. But you can get a response one way or another no matter what.

Holly: So I think a lot of family lawyers assume that we need to subpoena records from various places. So can you talk about the benefits of an open records request, and what’s involved with that, and why we may want to look to that instead of a subpoena?

Emily: It’s definitely quicker and cheaper. And, you know, you can go on to, let’s say, the Plano Police Department, you can go on their website, and there’s a link for open records requests, it takes a total of a minute and a half to put in your name, the date of the offense and what information you want. If they kick back, hey, we’re not going to provide it to you, you may need a subpoena. You know, CPS DFPS, they usually need a subpoena for hard records. But they’ll talk to you on the phone. So knowing and being able to talk to them and figure out if it’s worth your time or and energy to get that subpoena done and issued can be helpful. But sometimes you need a subpoena to get the records you want. And if it’s an ongoing investigation, you’re probably going to need it.

Holly: So you mentioned doing an open records request and listing the date of the offense. So what if we don’t know? What if we just suspect that you know, the husband on the other side has had some sort of criminal history in Plano for example. Are you able to do an open records request for a much broader period of time. Just any offense report, or any records you have related to John Doe husband?

Emily: You can. If it’s too broad sometimes they’ll say you’re requesting criminal history and they aren’t entitled to turn their full history over. But you can give a range. Sometimes I’ll say okay, why new within the last two years they got arrested for a family violence offense or an assaultive offense. And so I find that the more specific you can be, the more likely you are to get information. But yes, you don’t have to have the exact date. Usually with a name, date of birth and a couple of descriptors on their website. They can at least pull it. And they may tell you, you need to narrow it down, but they can pull that information

Holly: Is an open records request a possibility with CPS records? Because I know a lot of attorneys deal with trying to get records from CPS and it can take 18 months in some cases. And if an open records request has to be responded to in 10 days, is that a viable option?

Emily: I would think that if, you know, their law enforcement or fall under that umbrella and in the state of Texas that it should be, but I’ve yet to see it work out. And generally, they say you need to subpoena it. And it does, it takes forever. And you know, just so that everybody feels a little bit better as a prosecutor it took forever also. It wasn’t a quick phone call. It would take us weeks months, sometimes longer to get those requests, which you would think wouldn’t be a difficult thing. But I have yet to see an open records request suffice with the CPS investigation.

Holly: One of the interesting things I’ve found in having you in our office is thing, your ability to, you know, talk to police officers find out information, like you know, is John Doe, a known entity in your jurisdiction, for drug issues, things like that. Which, when you don’t have experience dealing with law enforcement on a regular basis, I don’t think it ever occurs to you that hey, even though this guy may not have a criminal record, the police may know who he is.

Emily: Right. Yeah. And, you know, the relationships that I have with a lot of those officers, that helps, right? So and being able to send a text or call up and say, hey, can you just tell me if this person, if I should be concerned about this person? Do they have, are they known to you, that’s helpful. But I think people have this innate fear or nervousness of just calling a police officer, calling a detective. And really they have the same goal as we do right is to protect people or to keep people safe. And of course, we have different end games of that.

But that can play into the same thing. I think that if at certain departments that have narcotics divisions, or officers in specialized divisions, whether that’s sex abuse, or child pornography, or whatever the situation is. I think a lot of those detectives would entertain a phone call of is this person known to you? You don’t have to tell me a whole lot of specifics, I can make an open records request. But is this a known entity? Do they, are they a name that you recognize? And most of these departments, you know, this may be different in huge departments like Dallas, places like that.

But Plano, Richardson, Allen, those size departments, if it’s a name that they know, they all know it, and it will ring a bell. And they may say, yep, I know that name. And whether or not they’ll share more information with you might depend on the type of day they’re having, you know, the kind of report you can build with them. But I would think that most of them will acknowledge at the very least, yes, they we know them. And just not being afraid to pick up the phone and call them. They’re open to those conversations.

Holly: So we’ve seen a lot of overlap. And I think probably almost all family lawyers see the overlap of criminal and family law at some point in their practice. One of the areas where we see a lot of overlap is dealing with protective orders. Can you talk a little bit about, I know, you’ve worked in protective orders in the DA’s office and have now done them and family law. Can you talk about the differences and a little bit about that overlap?

Emily: Sure. Um, on the criminal side, oftentimes, the other side was not represented. It would happen early on enough in their criminal cases that they either hadn’t hired a criminal defense attorney or hadn’t been appointed one yet. And so a lot of the time, they would either no show for the hearing, and it would be granted by default, or they would show up and represent themselves. Which I luckily have not seen much of pro se individuals on protective orders since joining the firm here. And I think that that’s a good thing. I think that protective orders have serious long-term implications, as everyone knows, and it’s important that people have attorneys for that.

But as a prosecutor, it was different because almost always they didn’t. And so it was a lot less, a lot less of the work on the front end. You had to know the case, you had to know it was going on, and you had to know you’re, the victim in that situation, they weren’t necessarily your client, but the victim. But there wasn’t as much preparation as far as exhibits and questions and things of that sort. Whereas here, we spend a lot of time preparing for those, and knowing everything that you can know about all the players. Knowing what kinds of questions to prepare and exhibits and all of that.

So it’s certainly different on this and having the time and wherewithal to give it that extra legwork. I think it is important on those kinds of cases and valuable. And as a prosecutor, you probably don’t have the time to do it. But here I think it’s shown not only what information you can gather and what extra things you can dig up with all of that, but it’s played out well most of the time for us knowing what to expect walking into the courtroom.

Holly: So if a family lawyer has a potential client or say they’re representing a client in the divorce and there’s a protective order issue. Under what circumstances would you advise that client to, you know, have the family lawyer handle a protective order, versus go with the DA because the DA is not going to charge them anything.

Emily: So the DA’s office doesn’t accept all protective orders. They get a stack hundreds of cases deep. And usually, there’s only one or two prosecutors assigned to that division, depending on the size of the office. And they simply can’t handle all of them. They do not have the manpower. So on the ones that they do accept, I think that the prosecutor assigned us as much legwork as they can. But they certainly can’t devote the time and energy like we can to these cases. You know, when I left the DA’s office, in Collin County, as a felony prosecutor, you had a caseload of 250 to 300 cases at any given time. And that’s an insane number. And it’s hard to make sure that the cases get the focus and dedication that they need.

Here, I think that we have the ability to really zone in on these cases and look into everything, make sure that we’re making the best possible arguments, make sure that we know all of the information, and we’re able to devote a lot more time and energy. Of course, the DA’s office, doing it that way is free. So if that’s a concern, the prosecutors who handle them are great at their job, and they will fight for you. And they will do everything that they can. But knowing the time constraints and the caseload that they’re handling, it is hard. And so if you can afford it, I think it’s helpful to have a private attorney handle it.

Holly: So oftentimes, we see, you know, divorce cases overlapping with protective order cases, or I suppose you could have a child custody case that wasn’t a divorce that was overlapping with the protective order case. And we see somebody violate the protective order. If we’re representing a client and the other side violates a protective order, what are the proper steps to take?

Emily: I think, first and foremost, to make a police report. We, like I tell our clients, I cannot help you in an emergency. I am not helpful if someone is threatening to hurt you or you are fearful. The only person who can help you is a police officer. They should be your first call. And depending on the type of violation, right? Did they send a nasty text? It wasn’t threatening, but it was harassing. Did they show up at your home? Did they show up at the kid’s school?

Those different things may change how the police officers react and what they choose to do. They have an obligation to arrest that person if they’re on scene, or to issue a warrant if there’s a family violence allegation made. If it’s just a text, maybe they just write an incident report. And I think that that’s something that also we as their family lawyers can help with of, hey, you need to document this. But you can tell the officers you don’t want them arrested, the officers don’t have to listen to you.

They can make an arrest with or without your consent, but vocalizing that letting them know what your thoughts are. Are you concerned for your safety or are you just letting them know that this person violated, that can matter. And I think that telling our clients first and foremost, to make a report and then having the opportunity to have a meeting with them and determine how we’d like to see it handled whether or not the police officers or the agency listens, but at least vocalizing that, letting them know. I think that makes a big difference.

Holly: And when you say having a meeting with them, are you referring to the police department or the officers involved?

Emily: Sure, I mean, that us and our clients and in the appropriate situation, meeting with the officers. They want to meet with your client, they want to talk to your client, they need your client to cooperate, to go forward and file solid charges. And I think going with your client not only shows them that you are there for them, you’re on their side, you’re willing to support them in this, but also lets the detective know that you’re involved and that there’s an extra set of eyes. Sometimes that can make a difference. Sometimes they want to make sure that they’re not hurting your case or not hurting the DA’s case. And that’s a balancing act. But them seeing that you’re involved can be very helpful.

Holly: So what if you as a family lawyer representing the person who is this has a protective order against him or her? And there are concerns this person might be violating the protective order. What would you do in that situation? Other than the draw, because that might be the first thing that we want to do is not violating a protective order.

Emily: Other than that, I’d have a very serious conversation with them of the implications of it, and then strongly advise them to get a criminal attorney. There are things that we can and can’t do. And I think that if they are possibly violating a protective order, they need to hire counsel. The police officer or the detective, somebody is going to be reaching out to them. And no matter how smart people think they are, or how clever or sympathetic or I just want to tell my side, it will never help you to speak to the police without an attorney. No one under any circumstances, if they’re being looked at as a suspect should be doing that. And so that would be number one would be stop doing that. Number two would be here’s a list of criminal defense attorneys I’d like you to reach out to and set up consults with.

Voiceover: This episode of the Texas Family Law Insiders podcast is sponsored by the Draper law firm, providing family law appellate representation across Texas. For more information, visit Draperfirm.com or call 469-715-6801.

Holly: Yeah, I think that’s great advice outside of the protective order context too, where, you know, we as family lawyers need to recognize when our client needs another lawyer besides us. And I know there’s some families out there that do both, but most don’t. So again, having those relationships with defense lawyers. Having people that you can refer clients to so that they don’t wind up in a bad situation because we failed to point them in the right direction.

Emily: Right, and it can have negative criminal implications. And it can of course, negatively impact our case, if they end up back in jail for violating a protective order or worse.

Holly: So another place where we see overlap is CPS cases. And it’s not that unusual to have CPS allegations made when we are in the midst of a custody case. So what are some things that family lawyers should think about or advise their clients when CPS is getting involved?

Emily: Um, first and foremost, I guess it depends on which side of that CPS case they are right. If they were the reporter, or the receiver of that investigation. But assuming that they’re the ones on the wrong side, or the side that we prefer our clients not to be, you know, I’d advise them that they need to be very careful. That they should let the CPS investigator or whoever it is, let them know that they’re represented by counsel. Let them know that they’d like that person does speak to us.

Oftentimes, the CPS investigator will tell them you can have an attorney present during this. And if they’re given that opportunity, they should take it. Whether that’s us or again, a defense, it’s a criminal defense attorney, of course, it depends on the allegations. But having an attorney there who is not emotionally invested on whatever these allegations are, is huge. When someone makes awful allegations about you true or false, it makes people emotional. And you lash out and you say things that you shouldn’t, and you try to defend, and sometimes that doesn’t look good.

And so having another party there who can say let me answer that one for you or take a breath before you answer this or whatever it may be. I think that can be helpful. Knowing that you should be cooperative and not evasive, also, I think plays a huge role. If a CPS investigator wants to meet with you, and you brush them off for six months, it maybe doesn’t look great. Now, if there are legitimate concerns that you think you maybe shouldn’t be speaking to them, again, that’s something I would talk to a criminal defense attorney about because a lot of their investigations can turn criminal.

Holly: Does a parent who has had CPS allegations made against them have the right to always have an attorney with them before they talk with anyone from CPS?

Emily: I’m not sure if it’s necessarily a right, but I’ve never had a CPS investigator say no to that request. You know, if someone asks for it, I’d be shocked if they say no. Sometimes they want to speak to the children without a parent or an attorney present. Another adult in the room can make children scared. But again, you don’t have to agree to that either. Now, if it ends up at the child advocacy center and a child is being forensically interviewed or something of that sort, your attorney can be present in the building. They can observe, but they are not going to let us or any attorney into that room with the child and their forensic investigator. Just like they won’t let the parent in. So I think it kind of depends on where the investigation goes as far as the children. But as far as an adult, if you ask for it, I’ve yet to see an investigator say no to that.

Holly: So when you have allegations that are working their way through the CPS side, and there’s a possible criminal case, does that cause you to, do you treat it then as if the client has been charged? For you know, for example, with testifying in court, and things of that nature.

Emily: I don’t think I’d treat it the same way. In a criminal case, if the prosecutor gets a hold of that transcript, even if your client pleads the fifth to everything that they think is incriminating, or we think is incriminating, the prosecutor is probably going to find other things to use. And so that I would say is a very delicate situation. With the CPS investigation, if it’s, if there’s a possibility of it turning criminal, I’d feel the same way. If it’s not necessarily criminal, but maybe both parents could improve or there’s some things going on that they want to look further into. I’d be less hesitant to put my client on the stand than if there was a criminal charge.

Holly: Another place where we see an overlap of criminal and family law is when one of the parties gets arrested during a case. And you know, I’ve been on both sides of that where my client was arrested. I’ve been on it where the other side was arrested. Sometimes there’s good reasons. Sometimes there’s some false allegations going along, going around. So if we have a client that is the one who’s arrested, what should we do?

Emily: If they’re currently in jail, I would figure out where. First and foremost, what county are they arrested in. Is that the same county they’re being charged in? Because oftentimes, you’ll be. if they get arrested in Dallas, or Denton and their case is in Collin County, it’ll be several weeks before they’re even transferred and can get an attorney appointed or hire an attorney or have a bond hearing. And so knowing where they are, and what the allegations are, is important. On a lot of these county websites, you can pull the PC affidavit, the arrest warrant, the offense report off of their jailing page.

And being able to read that and see what it says, that can be helpful. At the very least you can ask your client about it when you’re given the opportunity of did this happen? Or is there something fishy going on? Or what? And so those are important things to know. Making sure that, you know, if they are in jail, do they have access to a criminal attorney? Can they get out? I think those things are important. And once they’re out of jail, making sure that they’re aware of their bond conditions, and not violating them is huge.

Not only will that be used against them in a criminal case, but they’ll get thrown back in jail, and then we can’t do our job as their family attorneys. So on top of the criminal implications, it can affect everything on our side also of they may end up in jail for six or nine months waiting for trial or a plea deal. And in that time, the other side has the kids for the whole time or, you know, is filing things and we can’t respond. And that just puts us in a very precarious position.

Holly: Do you ever let a client who has pending criminal charges that may or may not be really connected to the case testify?

Emily: I probably wouldn’t. No. It’s, you know, of course, facts specific. But like I said a little bit before, I’d be hesitant. If the prosecutor gets that transcript. Now they might not, right, they might have no idea what’s going on. They might not care it’s going on if it has nothing to do with them. But if they’re friends with another attorney, or someone says hey, you should get a copy of that transcript, or even if they’re sent that transcript by someone involved, pleading the fifth on the actual, specifically incriminating questions, that’s helpful. But they may say something that they don’t realize is going to hurt them in the criminal case. And so I would certainly do my best to keep them from testifying.

Holly: So let’s flip it and say, you know, the other party in our custody case or divorce case, gets arrested or has been arrested. What do we do?

Emily: So if we’re representing the victim on whatever criminal case it is, I would let them know, don’t be afraid to reach out, don’t be afraid to call the DA’s office and speak to someone. Whether that’s victim’s assistance, or the prosecutor assigned the case. Let them know you’re cooperative, give them your phone number, take their calls. But also know that they’re busy, and you may not get a call back right away, or you may not get a response email that same day, they are very busy. And your case may not be the front of their mind on that day. But I’d be available, I’d let them know you’re cooperative, I would let your client know that you’re willing to go meet with whoever wants to meet with them with your client.

People are afraid like I said, people are nervous around police officers. People are nervous walking into a DA’s office. Even if they’re the victim, it makes people nervous. And having that support system there with them, whether it’s as their attorney or just someone that they trust and can counsel with in the appropriate situation, I think it makes a huge difference. And as a prosecutor, knowing the victim is cooperative and staying on top of things can directly impact how you handle the case.

Holly: So we often, you know, we find out that, you know, John Doe husband got arrested this weekend or a month ago or whatever. And from diving in to get the evidence or to find out what happened, what steps would you take?

Emily: The first, I would see if you can find their arrest. Figuring out what city or what police department arrested them, sometimes your client can fill that information in for you. And sometimes they can’t. And if they can’t, it’s very difficult. Of course, I’d check you know, their county and surrounding counties’ websites. But sometimes it doesn’t pop up or sometimes they got arrested somewhere else. But looking into that and pulling any magistrate records or jail bonding records can show you that PC affidavit, their arrest warrant, whatever it is. Not always, not all counties include that. But some do. After that point until the case is filed and resolved, an open records request is probably going to get shot down with this as an open investigation, we can’t provide it. And knowing that it’s pending would probably point me in the direction of just going ahead and getting a subpoena if I can.

Holly: So will you be able to get more records with a subpoena? Or do you need a court order saying they have to produce it? What do you usually get with a subpoena that you could not get with an open records request?

Emily: So the only difference I would say is generally if it’s an ongoing investigation or not, if it’s an open case, if the person has not been convicted or put on probation or the case dismissed, whatever the outcome, then usually for an open records request, they’re gonna say, we cannot provide that to you. And they say, we’ll appeal it up to the Attorney General’s office, and you’ll get a letter and almost always the letter agrees with them. And that’s for an ongoing investigation.

If it’s an open case, you would need a subpoena or court order or a court order or something. And, you know, again, you can call the police department, are you going to file these charges or are you going to, you know, not file them? If they’re not going to file them it’s not an open case. But otherwise, I’d say in a situation of an open case, you’re going to need a court order of some sort.

Holly: Do you find that the family law attorney can have a meaningful conversation or get meaningful information from talking to the ADA?

Emily: I’d say depending on the prosecutor, and depending on the county, sometimes. They have information that they can share and have information that they can’t. Oftentimes, as a prosecutor, if a civil attorney or family attorney is calling you, you’re doing more listening than speaking, because they may have information for you. And that’s great. If it’s an open case, prosecutors are pretty limited in what they can share. They may be able to tell you, yep, his next court date is on this day, or this is the current plea offer, or we anticipate going to trial, but they probably aren’t going to give you intricate details about the case.

Holly: Can they give you any leads in terms of you know, you should go request records from this place, or kind of point you in the right direction.

Emily: They might. It’s a delicate balance of sharing too much information about their case. You know, you can also look at any subpoena requests they’ve made. If you look at the criminal case, those subpoena records are going to be part of the court record also. And so that also might tip you off as to what direction you should be going. A lot of criminal cases, they’re not subpoenaing records, you don’t have the time and you don’t have the bandwidth to do it. But certain charges, child pornography, stalking, things like that they are going to be making subpoena requests. And you can see those if you log into the court website.

Holly: If we have a client that may or may not be the victim, but has some concerns about the other parent or the husband or the wife, because of their criminal case, being around the child or doing certain things. Is it appropriate for a family lawyer to, for a family lawyer or our client, to request that things be added to bond conditions?

Emily: Absolutely. If there are conditions they should or that they want. I’m worried about them being around my kids because of ABC. I’m worried about them driving my children because of ABC. Whatever it might be, they should absolutely vocalize that. The DA’s office may or may not choose to do something with it. If it’s before the person has been arrested. If the police officer is talking to them, as a part of the investigation, police officers can request bond conditions. As a part of their arrest warrant they can let the judge know the magistrate judge, hey, in addition to the standard family violence conditions, I would like A, B and C added.

Usually when we saw officers ask that, if they were reasonable, the judges were ordering them. They know that there’s a reason they’re being asked for. If you ask the prosecutor after it’s been filed, or after it’s at the DA’s office, but before it’s been indicted, or even after, if there’s a legitimate reason for it, they’ll certainly do their best. Knowing that you have to have a hearing and put on evidence for it. And so that may be a barrier of they don’t want to put our client or the victim or someone on the stand. Because they don’t want to give the defense attorney a chance to cross examine them.

And so there is that weighing of pros and cons, but I think it should absolutely be vocalized. You know your spouse or the parent of your children, or whatever the relationship is there, better than a prosecutor ever will. Better than we ever will as your attorneys. And so you are the best person to gauge what risks they pose. And it’ll be up to the prosecutor to handle whether or not it’s appropriate.

Holly: So if our client comes to us then and says, oh, he’s violating bond conditions, A, B and C, what do we do with that information?

Emily: They need to call the DA’s office. If they are violations that are criminal, some of the bond conditions are you can’t use illicit drugs, you can’t violate a protective order. You can’t commit a new crime. If it’s those kinds of things, it’s a new offense, you should call the police. If it’s he can’t contact you, or things of that sort, you should notify the DA’s office. Send an email, make a phone call, let them know. That’ll again, be a weighing factor of do I want to let the defendant know that I know they’re violating, or do I want to hold on to that and use it against them in trial as punishment evidence. And that’s kind of a weighing scale, they’ll have to do. They’ll balance the victim’s risk, safety, things of that sort. And they’ll walk you through why I’m not going to do anything with it, or why I need you to come and testify so I can.

Holly: So we often see long-term implications related to certain types of criminal convictions or charges, namely family violence findings or sex offender registration. Can you talk a little bit about what those long-term implications are?

Emily: Sure. Family violence findings, I’ll start with that one. Federally, you’re never allowed to own a firearm again. ou can never possess a firearm again. The state of Texas is a bit more lenient. And depending on what the violation was, what the finding was. Was it a protective order, was it a misdemeanor, or was it a felony, you’re not allowed to possess a firearm for a certain amount of time. And firearm includes ammunition. It includes any gadgets that you would add to your firearm. A silencer, an extended magazine, even if it’s unloaded, you can’t have any of those things. And possession is pretty broadly defined.

If you’re in the driver’s seat of your car, and your buddy gets out and sticks his gun under the passenger seat and leaves and 10 minutes later, you get pulled over, you’re now in possession of that gun, and you’ve committed a crime. You will probably go to jail, you’ll probably face new charges. And so that’s pretty severe to take away those rights from someone. Federally, technically, you can be charged for the rest of your life. I really only saw those charges come in when it involved other illicit acts. You know, you’re a several time convicted felon, or you have drugs in the car or something of that sort.

But in Texas, they will enforce it for the amount of time that you know, was a protective order active, are you on probation, there’s different variables there. It also never goes off your record. You can never get it expunged, you can never get it non disclosed. Anytime you’re asked if there’s a protective order against you at any time, or you were ever convicted of a family violence offense, you will forever have to say yes. Most charges, there is some sort of timeline of non disclosure, things of that sort. That doesn’t apply to family violence, it follows you forever.

And it can stop you with apartments and renting homes and a whole bunch of things. Volunteering at your kid’s school, it can affect. As far as a sex offender registry, you can depending on the type of charge and up on the registry for a couple of years or for life. The list of rules and regulations you have to follow is long. Where you can live, who you can affiliate with, what kind of work you can do. What, can you pick your kids up from school, things of that sort, all play into that. Usually, you are still allowed to see your biological children. How and when you can see them may vary, depending on the type of charge. Does it forever have to be supervised? Do have to wait until they’re 18?

Those are factors that have to be considered. And that arguably, a person’s criminal defense attorney should be having a conversation with the prosecutor as a part of the plea deal or as a part of the conviction, that should come into play. But the impact of sex offender registry, again, that’s forever. When people Google your name, it will come up. You have to register with the state and with parole and probation and a whole bunch of people forever. And so that can and should affect all of our negotiations, in our cases if one side or the other is charged with, convicted of a crime that leads to registration, or if they’re already on the registry.

Holly: So we’re just about out of time. But one question that I like to ask everyone who comes on the podcast is, if you could give one piece of advice to young family lawyers, what would it be?

Emily: Don’t be afraid to ask questions. You don’t know what you don’t know. And acknowledging that I think is a strength. It’s hard for people to say I don’t know what I’m doing. Especially if family law isn’t the first type of law you’ve practiced. I wasn’t a new attorney necessarily when I started doing this, but I came into it pretty blind. And knowing that there’s this whole other world that you know nothing about, and acknowledging that and asking for help, I think it makes you a better attorney. I think makes you a better person. But also a better attorney. And on top of which I think seeking out people who are experts in the field. Who are the best at this job. Going to watch them in court.

Now, in this post COVID world you can watch hearings on YouTube Live. So finding a couple of judges in the area that still live stream their hearings and watching those in between client meetings or for 10 minutes every day. Being able to watch someone do the thing, instead of having it explained to you, I think for certain type of learners, but at least for me has been very helpful in seeing oh, so this is what judges want to see in these kinds of hearings. This is the kind of arguments I should be making, and how I can present my cases in the best way possible.

Holly: So where can our listeners go if they want to learn more about you?

Emily: I’m not a big social media person, but you can check out my bio on the Draper firm website.

Holly: Well, thank you so much for hopping on with me today. For our listeners, if you enjoyed this podcast, take a second to leave us a review and subscribe so you can enjoy future episodes.

Voiceover: The Texas Family Law Insiders podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at draperfirm.com.