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A Little More About Theft

Pretrial Intervention in Texas

What has changed in the past few years with the new administration? Let’s start with the typical shoplifting case. The District Attorney came into her office with a policy that she was not going to spend prosecution resources putting people in jail for small time offenses like shoplifting and possession of marijuana. In keeping with this policy, she crafted 90-day Pretrial Diversion programs for these crimes.

As a result, a person charged with a shoplifting crime will be offered a short program that will allow her to take a class and perform some other services during a three-month period of time in return for a dismissal.

How long will this program last? Not sure about that. I’m guessing our local merchants have objected to this program, since they spend a lot of money attempting to catch shoplifters. Politics being politics, I wonder about the future.  I have observed the prosecution being a little persnickety about the program recently. It is only supposed to be available for individuals with no criminal record, but what constitutes a criminal record exactly? Does a prior deferred count? What about a Class C?

Another question is whether the State would be willing to agree to an expunction to a dismissal earned by use of these programs? We haven’t yet faced that issue, but have observed a change in attitude on dismissed Family Assault cases. The District Attorney, at least in Harris County, has been unwilling to agree to an expunction on Assault Family Member cases until the statute of limitation has run. This is two years for a misdemeanor. Longer for a felony.

Felony Theft cases are usually handled by special divisions of the various District Attorney’s office, especially those that involve analysis. It used to be that their cases were limited by loss. If the case involved more than a couple hundred thousand dollars, they were usually investigated and prosecuted by the Feds. That has changed.

The Attorney General of the United States seems pre-occupied these days with immigration and violent crimes. For instance, in the first 28 years I was practicing as a lawyer and defense attorney I saw exactly zero aggravated robberies being prosecuted in Federal Court. Now, it seems to be a regular occurrence. My guess is this a political shift as well. What do you want to bet these statistics get reported at the next presidential election?

The Feds seem to be letting the State prosecute the larger fraud cases. This might turn out to be a boon for those accused of fraud. One of the things that the FBI was good at was investigating Fraud crimes. Typically the case would be worked up ad nauseum long before an indictment was sought. By the time an accused got to court, every nuance of defense was considered and remedied. The State doesn’t have the resources of the Federal Government. The prosecution has subpoena power, but the number of investigators at their disposal is paltry.

With few exceptions, any fraud or theft case results in prison time upon conviction in U.S. District Court. This is not necessarily so in State Court. A person charged with Theft in Texas State Court is still eligible for probation, no matter how large the alleged theft. Typically, the prosecution has been amenable to probation if restitution can be arranged. Now that the fraud amounts have increased for Harris County and Fort Bend prosecutors, I question whether attitudes will change. My guess is that a million dollars will excite these women and men laboring in the Major Fraud divisions.

Of course, none of this changes the basic defenses available to an individual faced with these charges. A State prosecutor will still find it substantially difficult to prove a complicated fraud scheme. In addition, the poor folks at the lower base of the pyramid who get wrapped up in a theft scheme still have the defense of lack of knowledge. The politics and policies change, but the innocent still have the protection of a good defense attorney. I will be the first to let you know if that changes.