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Conditions of Pre-Trial Bail in Texas

Often, persons accused of a crime find themselves – before they have their cases decided by a judge or a jury, before they enter a plea or otherwise resolve their cases – being “punished” by the conditions set on their bonds during pre-trial release. These people post a bond, either in cash or through a bonding company, and then are required by the court to observe a number of restrictions on their liberty while their case is pending. In many counties, including Harris County and Montgomery County in Texas, people accused of crimes, but “presumed innocent,” are still subjected to “random drug tests,” home arrest, monitoring, and often ordered to report to “pre-trial” authorities or risk having their bond revoked and put in jail until their case is resolved.

My clients often ask me how this can possibly be “legal” or “fair,” and I have to answer that it is, probably, “legal,” but that I don’t think it’s “fair.”

The Texas Constitution guarantees that “[a]ll prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident.” Tex. Const. art. I, § 11; see Tex.Code Crim. Proc. Ann. art. 1.07 (West 1977). The constitution also permits the denial of bail in certain noncapital cases when the accused has a prior record. Tex. Const. art. I, § 11a. Unless those conditions apply, a defendant is entitled to a reasonable pre-trial bond to be released from jail. See U.S. Const. amend. VIII (excessive bail shall not be required); Tex. Const. art. I, § 13 (same); Tex.Code Crim. Proc. Ann. art. 1.09 (West 1977) (same). Ex parte Beard, 92 S.W.3d 566, 571 (Tex. App.-Austin 2002, pet. ref’d)

In Texas, pursuant to the Code of Criminal Procedure, the amount of bail required in any case is within the discretion of the court, judge, magistrate, or officer taking the bail, subject to the following rules:

1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.

2. The power to require bail is not to be so used as to make it an instrument of oppression.

3. The nature of the offense and the circumstances under which it was committed are to be considered.

4. The ability to make bail is to be regarded, and proof may be taken upon this point.

5. The future safety of a victim of the alleged offense and the community shall be considered.

TEX. CODE CRIM. PROC. ANN. art. 17.15 (West 2005).

In addition, appellate courts have held that the following factors may also be considered: the accused’s work record, family and community ties, length of residency, prior criminal record (if any), and any aggravating circumstances alleged to have been involved in the offense the accused is charged with committing. Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex. Crim. App. 1981).

So, it is apparent that the Texas Code of Criminal Procedure article 17.15 is a legislative effort to implement the constitutional right to bail. 41 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 16.51 (2d ed.2001) (footnote omitted) (hereafter “Dix and Dawson”); Tex.Code Crim. Proc. Ann. art. 17.15 (West Supp. 2002). Article 17.15 commits the setting of bail to the discretion of the trial court or magistrate, but sets forth five rules that, together with the constitution, govern the exercise of that discretion. Tex.Code Crim. Proc. Ann. art. 17.15. Bail should be sufficiently high to give reasonable assurance that the undertaking will be complied with, but not so high as to make it an instrument of oppression. Id. art. 17.15(1), (2); see Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex.Crim.App.1977) (primary purpose of pretrial bail is to secure presence of defendant). The nature of the offense and the circumstances under which it was committed are factors to be considered in setting bail, as is the future safety of the community and the victim of the alleged offense. Tex.Code Crim. Proc. Ann. art. 17.15(3), (5). The defendant’s ability to make bail also must be considered, but is not of itself controlling. Id. art. 17.15(4); Ex parte Gentry, 615 S.W.2d 228, 231 (Tex.Crim.App.1981). In applying article 17.15, consideration may be given to such evidentiary matters as the defendant’s work record, ties to the community, previous criminal record, and record of appearances in the past. See Ex parte Williams, 619 S.W.2d 180, 183 (Tex.Crim.App.1981); Gentry, 615 S.W.2d at 231; Ex parte Parish, 598 S.W.2d 872, 873 (Tex.Crim.App. 1980); Ex parte Keller, 595 S.W.2d 531, 533 (Tex.Crim.App.1980).

The burden is on the accused to prove that bail is excessive. Ex parte Rubac, 611 S.W.2d 848, 849 (Tex.Crim. App.1981). An appellate court will review the trial court’s ruling for an abuse of discretion. Id. at 850. Unless one can show that the trial court judge “abused” their “discretion” in setting the bond amount or the conditions, the appellate court will sustain the trial court’s ruling.

The primary purpose of an appearance bond is to secure the presence of the accused at trial on the offense charged. Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. 1980). Thus, the amount of bail must be high enough to give reasonable assurance that the accused will appear as required. Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. 1980). However, while bail should be sufficiently high to give reasonable assurance that the accused will appear, the power to require bail should not be used as an instrument of oppression. Ex parte Ivey, 594 S.W.2d 98, 99 (Tex. Crim. App. 1980). This occurs when the trial court sets bail at an amount “for the express purpose of forcing appellant to remain incarcerated” pending trial or appeal. See Ex parte Harris, 733 S.W.2d 712, 714 (Tex. App.-Austin 1987, no pet.) (per curiam).

Also, the conditions of bonds can be “excessive,” unless they comply with certain statutory standards and there is an evidentiary basis and justification for them.

In setting bail, a balance must be struck between the defendant’s presumption of innocence and the State’s interest in assuring the defendant’s appearance at trial. See Simpson, 77 S.W.3d at 896 (citing Balboa v. State, 612 S.W.2d 553, 557 (Tex.Crim.App.1981)). Although both the federal and state constitutions permit the denial of pretrial bail under certain circumstances, when bail is available it is excessive if set in an amount greater than is reasonably necessary to satisfy the government’s legitimate interests. See United States v. Salerno, 481 U.S. 739, 753-54, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (construing Eighth Amendment); 41 Dix and Dawson §§ 16.11, .12 (discussing federal and state constitutional right to bail).

In reviewing a trial court’s ruling for an abuse of discretion, an appellate court will not intercede as long as the trial court’s ruling is at least within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991) (op. on reh’g). But an abuse of discretion review requires more of the appellate court than simply deciding that the trial judge did not rule arbitrarily or capriciously. Id. at 392. The appellate court must instead measure the trial court’s ruling against the relevant criteria by which the ruling was made. Id.

How to do you challenge an excessive bond or overly onerous pre-trial conditions of the bond?

In Texas, a pre-trial writ of habeas corpus is appropriate only in very limited circumstances. The writ is permitted to challenge the State’s power to restrain a defendant, the manner of pre-trial restraint (i.e., the denial or conditions of bail), or certain issues that would bar prosecution or conviction. Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005). If one considers that the conditions of bond are “restraints” on a defendant’s liberty, then one would argue that a defendant may challenge conditions on pre-trial bail through a writ of habeas corpus.

In Texas in 1999, magistrates were given general authority to impose reasonable conditions on pre-trial bail. Ex parte Anderer, 61 S.W.3d 398, 401 (Tex. Crim. App. 2001). “To secure a defendant’s attendance at trial, a magistrate may impose any reasonable condition of bond related to the safety of a victim of the alleged offense or to the safety of the community.” Tex. Code Crim. Proc. art. 17.40(a). In setting pre-trial bail, a magistrate must consider the nature and circumstances of the alleged offense and the safety of the alleged victim and the community, and the magistrate may impose reasonable conditions related to their safety. Anderer, 61 S.W.3d at 405-06.

A condition of pre-trial bail will be upheld if it meets three criteria: (1) it must be reasonable; (2) it must be made to secure the defendant’s presence at trial; and (3) it must be related to the safety of the alleged victim or the community. Anderer, 61 S.W.3d at 401.

Again, in the case of pre-trial conditions of bond, an appellate court reviews a trial court’s pre-trial bail decision for an abuse of discretion. Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex. Crim. App. 1981). The applicant bears the burden to show that the trial court abused its discretion in setting the amount of bail or imposing a specific condition. Id.; Ex parte Anunobi, 278 S.W.3d 425, 528 (Tex. App.-San Antonio 2008, no pet). And, again, as with the amount of the bond and the “excessive bond” argument, in reviewing a trial court’s ruling for an abuse of discretion, an appellate court will not intercede as long as the trial court’s ruling is at least within the zone of reasonable disagreement. Cooley v. State, 232 S.W.3d 228, 234 (Tex. App.-Houston [1st Dist.] 2007, no pet.) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990)).

However, the conditions of bail “may not impinge unreasonably upon rights guaranteed by the Constitution.” Anderer, 61 S.W.3d at 402.

Even before the statutes were amended to allow specific conditions, it was well established that courts have the inherent power to place restrictive conditions on the granting of bail. Estrada v. State, 594 S.W.2d 445, 446 (Tex. Crim.App. [Panel Op.] 1980). The trial court’s discretion to set the conditions of bail is not, however, unlimited. As noted regarding the amount of bail, a condition of pre-trial bail is judged by three criteria: it must be reasonable; it must be to secure the defendant’s presence at trial; and it must be related to the safety of the alleged victim or the community. Ex parte Anderer, 61 S.W.3d 398, 401-02 (Tex.Crim.App.2001) (making a distinction between pre-trial bail and bail pending appeal); see TEX.CODE CRIM. PROC. ANN. art. 17.40(a) (Vernon Supp.2008) (authorizing trial court to impose “any reasonable condition of bond related to the safety of a victim of the alleged offense or to the safety of the community” in order to “secure a defendant’s attendance at trial”); 428*428 see also Burson v. State, 202 S.W.3d 423, 425-26 (Tex.App.-Tyler 2006, no pet.) (interpreting § 17.40(a) to mean a single bail condition may be solely related to the safety of the victim or community, and need not necessarily relate to all three criteria mentioned in Anderer).

In that respect, the courts must be mindful that one of the purposes of release on bail pending trial is to prevent the infliction of punishment prior to conviction. Anderer, 61 S.W.3d at 405. Again, however, it must be emphasized that the primary purpose for setting a bond is to secure the defendant’s presence in court. Ex parte Garcia, 100 S.W.3d 243, 245 (Tex.App.-San Antonio 2001, no pet.). Home confinement and electronic monitoring are expressly permitted conditions of pre-trial bail in Texas. TEX.CODE CRIM. PROC. ANN. art. 17.44(a)(1) (Vernon 2005).

In cases involving minor victims of sex offenses, or intoxication offenses, the conditions of bond can be quite onerous, requiring intensive monitoring of the defendant and his actions and sometimes, in DWI cases, severely restricting the defendant’s right to operate an automobile before trial.

When considering conditions of bail, one should apply the standards discussed above and, if they are thought to be excessive, or to unreasonably restrain the liberty of the (presumed innocent) defendant, and be prepared to show how the conditions are not related to securing the defendant’s presence in court, to safeguard a victim, or to protect the community.

Selected Texas Statutes

Texas Code of Criminal Procedure

Art. 17.29. ACCUSED LIBERATED. (a) When the accused has given the required bond, either to the magistrate or the officer having him in custody, he shall at once be set at liberty.

(b) Before releasing on bail a person arrested for an offense under Section 42.072, Penal Code, or a person arrested or held without warrant in the prevention of family violence, the law enforcement agency holding the person shall make a reasonable attempt to give personal notice of the imminent release to the victim of the alleged offense or to another person designated by the victim to receive the notice. An attempt by an agency to give notice to the victim or the person designated by the victim at the victim’s or person’s last known telephone number or address, as shown on the records of the agency, constitutes a reasonable attempt to give notice under this subsection. If possible, the arresting officer shall collect the address and telephone number of the victim at the time the arrest is made and shall communicate that information to the agency holding the person.

(c) A law enforcement agency or an employee of a law enforcement agency is not liable for damages arising from complying or failing to comply with Subsection (b) of this article.

(d) In this article, “family violence” has the meaning assigned by Section 71.004, Family Code.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 17.38. RULES APPLICABLE TO ALL CASES OF BAIL. The rules in this Chapter respecting bail are applicable to all such undertakings when entered into in the course of a criminal action, whether before or after an indictment, in every case where authority is given to any court, judge, magistrate, or other officer, to require bail of a person accused of an offense, or of a witness in a criminal action.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 17.40. CONDITIONS RELATED TO VICTIM OR COMMUNITY SAFETY. (a) To secure a defendant’s attendance at trial, a magistrate may impose any reasonable condition of bond related to the safety of a victim of the alleged offense or to the safety of the community.

(b) At a hearing limited to determining whether the defendant violated a condition of bond imposed under Subsection (a), the magistrate may revoke the defendant’s bond only if the magistrate finds by a preponderance of the evidence that the violation occurred. If the magistrate finds that the violation occurred, the magistrate shall revoke the defendant’s bond and order that the defendant be immediately returned to custody. Once the defendant is placed in custody, the revocation of the defendant’s bond discharges the sureties on the bond, if any, from any future liability on the bond. A discharge under this subsection from any future liability on the bond does not discharge any surety from liability for previous forfeitures on the bond.

Added by Acts 1999, 76th Leg., ch. 768, Sec. 1, eff. Sept. 1, 1999.

Amended by: Acts 2007, 80th Leg., R.S., Ch. 1113, Sec. 4, eff. January 1, 2008.

Art. 17.43. HOME CURFEW AND ELECTRONIC MONITORING AS CONDITION. (a) A magistrate may require as a condition of release on personal bond that the defendant submit to home curfew and electronic monitoring under the supervision of an agency designated by the magistrate.

(b) Cost of monitoring may be assessed as court costs or ordered paid directly by the defendant as a condition of bond.

Added by Acts 1989, 71st Leg., ch. 374, Sec. 4, eff. Sept. 1, 1989.

Art. 17.44. HOME CONFINEMENT, ELECTRONIC MONITORING, AND DRUG TESTING AS CONDITION. (a) A magistrate may require as a condition of release on bond that the defendant submit to:

(1) home confinement and electronic monitoring under the supervision of an agency designated by the magistrate; or

(2) testing on a weekly basis for the presence of a controlled substance in the defendant’s body.

(b) In this article, “controlled substance” has the meaning assigned by Section 481.002, Health and Safety Code.

(c) The magistrate may revoke the bond and order the defendant arrested if the defendant:

(1) violates a condition of home confinement and electronic monitoring;

(2) refuses to submit to a test for controlled substances or submits to a test for controlled substances and the test indicates the presence of a controlled substance in the defendant’s body; or

(3) fails to pay the costs of monitoring or testing for controlled substances, if payment is ordered under Subsection (e) as a condition of bond and the magistrate determines that the defendant is not indigent and is financially able to make the payments as ordered.

(d) The community justice assistance division of the Texas Department of Criminal Justice may provide grants to counties to implement electronic monitoring programs authorized by this article.

(e) The cost of electronic monitoring or testing for controlled substances under this article may be assessed as court costs or ordered paid directly by the defendant as a condition of bond.

Added by Acts 1989, 71st Leg., ch. 785, Sec. 4.03, eff. Sept. 1, 1989. Renumbered from art. 17.42 by Acts 1991, 72nd Leg., ch. 16, Sec. 19.01(3), eff. Aug. 26, 1991. Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 284(46), eff. Sept. 1, 1991.

Amended by: Acts 2009, 81st Leg., R.S., Ch. 163, Sec. 1, eff. September 1, 2009.

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No Refusal Weekends — DWI

Can the Police Really Take My Blood Without My Consent?

The short answer is – a law enforcement officer, with a badge and a gun, can do almost anything he/she wants when they have you on the side of the road. So, “yes,” an officer can “take” your blood. The issue, though, is whether the officer is justified in taking your blood sample and whether that evidence can be used against you in a criminal DWI case against you.

In many jurisdictions, especially in Harris County and Montgomery County, Texas, (Houston and Conroe), law enforcement agencies are adding another tool to their arsenal to go after persons suspected of driving while intoxicated. One of these is the “No Refusal” Weekend, where officers have access to a mobile blood draw van, one or more assistant district attorneys, a notary public, a fax machine connected to a judge, and a nurse or other medical person. The effort behind “No Refusal” Weekends is designed to get blood samples from persons who are detained and arrested for driving while intoxicated (DWI) by applying for – and getting, in a matter of minutes – a blood draw warrant. That warrant gives the officer the authority to get a sample of your blood to be tested for alcohol.

However, except for some statutory exceptions, an officer must first have “probable cause” to believe that you were driving while intoxicated and submit an affidavit and application for a search warrant to a judge, asking for authority to “forcibly” take a blood sample from you. While you may not be able to deny the officer the ability to take your blood — and you should never physically resist — you do not have to actively cooperate to give them the facts they should need to demonstrate probable cause to obtain a blood draw warrant.

First and foremost, do not take any – any – tests or answer any – any – questions except to identify yourself and show proof of financial responsibility (automobile liability insurance).

Often, folks stopped by the police on the side of the road are extremely Night-stop nervous and want to avoid, at all costs, going to jail. Unfortunately, they erroneously think that by cooperating with the officer they can avoid going to jail. Answering an officer’s questions about how much you had to drink, or participating in the HGN (“pen test”) or any other field sobriety tests, will often give the officer what she needs to make her affidavit and application for a blood draw warrant. So, the first and best advice is – do not take any – any – tests or answer any – any – questions except to identify yourself and provide proof of insurance.

When you are stopped by a law enforcement officer, always act politely and with respect toward the officer. Keep in mind that officers must take care for their own safety during a traffic stop, and it is important that the officer understand that you are not a threat to their safety.

Activate your emergency flashers when you notice the officer wants to pull you over. Pull off the roadway safely.

Locate your driver’s license and proof of insurance and then keep your hands on the steering wheel. Answer the officer’s questions about your license and your proof of insurance clearly and to the point. Don’t argue and don’t explain. If you can get by with just a ticket, that’s the best of the worst alternatives.

When you are stopped by a law enforcement officer and they ask you whether you’ve been “drinking,” and then they ask you to step out of your vehicle, the OFFICER ALREADY THINKS THAT YOU’RE DRIVING WHILE INTOXICATED. The officer already stopped you for another reason – speeding, unsafe lane change, “failure to maintain single lane,” or some other “traffic violation.” The officer will then likely note in his report that you “fumbled” for your license or insurance card, that your eyes were “bloodshot” or “glassy,” and that he smelled the “odor of an alcoholic beverage.” Once the officer forms these opinions, you are asked to exit your vehicle AND THE INVESTIGATION OF DRIVING WHILE INTOXICATED HAS COMMENCED.

You need to protect yourself at this point, and the only thing that can protect your interest is for you to decide to remain silent. Do not volunteer any information. Remain polite and do not argue.

Most likely, if the officer asks if you’ve been drinking, and then asks you to get out of your vehicle, the odds are good that she has decided that you are likely intoxicated and you are more than likely going to jail. Everything that happens after you get out of your vehicle is designed to bolster the officer’s opinion that you are intoxicated and to provide evidence to support the criminal charge against you. The blood draw on a “No Refusal” Weekend is one of the ways officers seek evidence against you.

While it may be intimidating, and while you may have your license suspended, and while the officer may try to tell you that if you “pass” these tests he will “let you go,” you should NOT participate in any of the field sobriety tests or consent to a breath or blood test. The chances of you passing the field sobriety tests are low. Remember – the defense of your DWI case starts when you’re asked to get out of your vehicle. If you GIVE the officer the evidence against you, you are many times more likely to be convicted of DWI. Just say “no, thank you, officer.”

The officer will likely ask you to take a number of field sobriety tests (and those are discussed elsewhere on this site). You should politely decline.

You have a right to decline to take these tests and you should exercise that right. Unlike refusing a breath test, the DPS cannot move to administratively suspend your license if you refuse to participate in these field tests. Remember, once the officer has asked if you’ve been drinking and asked you to step out of the vehicle, you are likely going to jail, anyway. Just say “no, thank you, officer,” when asked to perform any of these tests.

The best way to defend against the results of the Standard Field Sobriety Tests and the breath test is for the accused driver to say “no, thank you, officer,” when they are asked to take those tests. If there are no results for the officer to point to, then the jury will be left with less evidence upon which to base a possible “guilty” verdict and you can defend yourself more effectively against an unfair and unfounded charge of driving while intoxicated.

In other words, be polite and be patient. Keep in mind that “you can beat the rap, but you can’t beat the ride.” The number of people who “talk their way out” of a DWI arrest, or who pass the Standard Field Sobriety Tests, is very low. More than likely, you will NOT pass those tests, even if you’re not “driving while intoxicated.”

Still, even if you decline all of the tests, the officer may still apply for a blood draw warrant and they may still take your blood. But, at this point, you have at least given your attorney a chance to evaluate the affidavit and warrant and, if necessary, challenge it. Taking the tests or giving your consent will only make matters worse and make defending yourself against the charge of DWI more difficult and less likely of success.

You can decide to “take your chances.” But, if you want the best chance of clearing your name of a DWI charge, just say “no, thank you, officer.”

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Occupational Licenses

“ESSENTIAL NEED” OR “OCCUPATIONAL” DRIVER’S LICENSES

In Texas, when a person is convicted of driving while intoxicated (DWI), or their driver’s license is suspended in an Administrative License Revocation (ALR) proceeding or another administrative proceeding or action brought by the Department of Public Safety (DPS), then during that suspension that person may be eligible to obtain a court order for the issuance of an “essential need” or “occupational” driver’s license. (We lawyers use the labels “essential need” license and “occupational” license interchangeably, and once the court has ordered that you may obtain a license, the DPS issues what it calls a “restricted” license.)

The “essential need” or “occupational” license proceeding is governed by the Texas Transportation Code and is conducted, normally, in a county court or county court at law, though district courts may have jurisdiction as well. Depending on the county, the proceeding to obtain the license is either in the same court as handled the DWI case or in another court with civil jurisdiction. Some counties have special procedures. (See Montgomery County and Harris County procedures, discussed below.)

The Department of Public Safety requirements for the issuance of a Texas Essential Need or Occupational Driver’s License are:

1) A County or District Court Order, or an Order from the Court in which the person was convicted granting an Occupational Driver’s License. The Order shall be definite as to hours of the day, days of the week, specific reasons for travel, and the areas of routes of travel to be permitted. Actual travel time does not have to be continuous, but specific hours must be stated in the Court Order, and shall not exceed twelve (12) hours in any given twenty-four (24) consecutive hour period. (This means that, before you can expect DPS to issue your restricted license, you must file a court proceeding to obtain the order granting you the essential need or occupational license.

2) Proof of financial responsibility by filing Form SR-22 (typically the pink certificate of liability insurance). An insurance agent can assist you in obtaining the SR-22 and sometimes they can be obtained online.

3) You must complete Texas DPS Form DIC-37, providing information to appear on the Essential Need or Occupational Driver’s License.

4) You must pay the fees required by the Department of Public Safety:

A reinstatement fee is required under the Safety and Responsibility Act (Court Costs Fees are separate), and

A $10.00 Fee for the issuance of the Essential Need or Occupational Driver’s License payable to the DPS ($10.00 fee for one (1) year or less).

There are other fees associated with the proceeding, but they are court costs, and are paid to the clerk of the court where your petition for an essential need license is filed.

The following rules are applicable to any person who has had the Driver’s License suspended due to a conviction of Driving While Intoxicated, (DWI), or driving privileges revoked by the Department of Public Safety for any reason, and wishes to obtain an occupational license during the period of suspension. Additionally, these requirements must be met before a court will order that you are entitled to an essential need license.

As mentioned above, an Occupational License will not be issued by the Department of Public Safety unless the driver has obtained liability insurance. You must obtain Form SR-22 and verification of purchase of at least six (6) months of liability insurance and present it to the court at the time of your hearing or the submission of your petition for an essential need license.

You must obtain, and present it to the court at the time of your hearing or the submission of your petition for an essential need license, a copy of your driving record. Some counties or courts may obtain that record at the time of or before your hearing, but you will be able to obtain a copy from the Texas Department of Public Safety.

You or your lawyer must prepare and file with the clerk of the court a Petition for Essential Need License. This is basically your request to the court to consider granting you a restricted license. In the Petition you must set out the reasons you need to drive during the period of your suspension. Also in the Petition, you must be specific as to the area and times in which you will be driving.

In Montgomery County, Texas, your attorney may be able to convince the judge who is hearing your DWI case to also hear your petition for an occupation license. Alternatively, one of the county courts at law is normally assigned to hear all of the Petitions for occupational licenses. Once you file the petition with the required paperwork and attachments, the clerk will forward your application to the judge and you will be notified of the outcome or the necessity of an in-person hearing.

In Harris County, Texas, if your license is suspended because of a DWI or associated matter, (such as the ALR suspension which is present in most DWI cases), most of the civil courts will not hear your petition, but will require that you file it with the court that is hearing or had heard your DWI case or other case associated with the suspension. Courts in Harris County are generally “specialized,” with certain courts hearing only civil cases and other courts hearing only criminal cases.

The law provides that if you are granted an occupational license, your driving privileges are limited not only to a specific geographic area (usually your home county and counties nearby), but you are also limited as to when and where you can drive. The law provides that you can drive no more than four (4) hours per day, although, if there is a specific need, the court can allow you to drive up to twelve (12) hours a day. (Texas Trans. Code, Title 7 § 521.248). Most courts will allow twelve cumulative hours of allowable driving time per day, once you demonstrate the need. You must be specific as to the number of hours per day you will need and that need must be justified, based on your particular occupational, educational or household duties.

The Petition filed for an occupational license must be sworn to, and often it is verified by your signature in front of a Notary Public.

Once you have obtained the SR-22 and your driving record, and prepared the Petition, it must be filed with the clerk of the court and the filing fee paid. At that point, depending on your county and the court’s procedures, a hearing will be set and you will be notified to appear, or the court will consider your Petition “by submission,” and you will not be required to appear and the clerk will notify you of the court’s action on your request.

When the Judge signs the Order granting the Occupational License, the Court Clerk will prepare two (2) certified copies of the Application and Order. You must keep one (1) set with you at all times while you are in the vehicle. It shall serve as a restricted license, and shall remain in effect until the 31st day after the date on which the Order takes effect (Texas Trans. Code, Title 7 § 521.249 (a). The other set is for you to mail or take to the Department of Public Safety. However, many counties and courts require you to prepare a “proposed order” setting out what you want the order to provide. And, some counties and courts have their own “pre-printed” form orders, where you must “fill in the blanks” and make certain selections from the options provided. Whichever kind of order the court uses, it must be signed by the Judge and a certified copy provided to you and the Texas Department of Public Safety before you may safely (and legally) drive.

If the clerk of the court does not send the forms to the Texas Department of Public Safety, then you must then take or mail the certified forms, along with the pink copy of the SR-22, the completed DIC-37, and any necessary fees to the Department of Public Safety.

Once the clerk has provided you with a certified copy of the Court’s order, and you have ensured that the Department of Public Safety is going to get a copy of the order and the required documents, you may legally drive on two conditions: first, that you only drive during the times and under the conditions set out in the order and, importantly, that you ALWAYS carry a certified copy of the court order allowing you to drive in your car, with you. Section 521.250 of the Texas Transportation Code explicitly provides that a “person who is issued an occupational license shall have in the person’s possession a certified copy of the court order granting the license while operating a motor vehicle. The person shall allow a peace officer to examine the order on request.”

You should keep in mind that the Court is not required to grant your request for an essential need or occupational license. In fact, some courts, depending on your driving record and criminal history, will not issue one, or, if they do, they will tack on additional requirements, such as ignition interlocks. You should almost always consult with an attorney regarding your chances for obtaining an essential need license before filing the petition. And, as is explained below, sometimes you just can’t get an essential need license, because the law forbids it.

If you want to learn more about the statutory requirements for the “essential need” or “occupational” license in Texas, review these sections of the Texas Transportation Code, available online: Sec. 521.248. ORDER REQUIREMENTS; Sec. 521.249. NOTICE TO DEPARTMENT; ISSUANCE OF OCCUPATIONAL LICENSE; Sec. 521.250. COURT ORDER IN OPERATOR’S POSSESSION.

And, on a final note. . . .

A “Hard Suspension” Means NO Occupational Driver’s License

Texas Transportation Code, Title 7, § 521.251 states, in part, that:

– If the person’s driver’s license has been suspended as a result of an alcohol-related or drug-related enforcement contact during the five (5) years preceding the date of the person’s arrest, the Order may not take effect before the 91st day after the effective date of the suspension.

– If the person’s driver’s license has been suspended as a result of a conviction under Sec. 49.04, 49.07, 49.08, Penal Code, during the five (5) years preceding the date of the person’s arrest, the Order may not take effect before the 181st day after the effective date of the suspension.

These time periods are what are known as “hard suspensions,” and apply to repeat alcohol or drug offenders. This means that you cannot obtain an occupational license during these periods – your license is suspended and your privilege to drive in Texas has been suspended without exception for those time periods. Only after these time periods have expired may you then obtain an essential need license.