Can a defense attorney get my case dismissed?

Maybe. Under some circumstances, an attorney can obtain a dismissal but, according to the rules of the State Bar of Texas, no attorney can ethically guarantee a dismissal or any other result in a criminal case. There are many types of dismissal but most types eventually allow you to file a petition for expunction to have all records of the arrest and prosecution removed from your criminal history.

Frequently Asked Questions – Dismissals

This page contains general answers to the most common questions about the various ways that criminal cases are dismissed in Travis County, Texas.

Who decides if a case will be dismissed?

Once a criminal case is formally filed, the prosecutor normally makes the primary decision about whether or not a case will be dismissed. The defense attorney, alleged victim, or judge may seek to influence the decision, but it is ultimately the prosecutor that decides on dismissal.

The prosecutor’s decision may be influenced by the nature of the allegations, the quality of the State’s evidence, the existence of contrary evidence, the availability of key witnesses, the persuasiveness of any potential defenses or justifications, and any mitigating circumstances impacting the defendant.

A defense attorney seeking dismissal will help the prosecutor see these issues in the light most favorable to the defendant. An alleged victim seeking dismissal may help the prosecutor feel OK about dismissal by swearing out an affidavit of non-prosecution. A judge can only dismiss a case over the state’s objection when the prosecution has committed some serious fundamental error like filing the case in a court that lacks proper jurisdiction, putting the defendant on trial for the same crime twice, or failing to follow legally required time limits.

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How can a defense attorney increase the odds of dismissal?

An effective criminal defense attorney will investigate and attempt to discover factors that may persuade the prosecution to dismiss the case.  The specific facts of a case may undermine the state’s evidence or they may make the defendant’s position seem more sympathetic and deserving of another chance.

I can’t make promises about results in future cases, but I can say that the way I practice law has historically produced outstanding results for my clients. I actually begin trial preparation and independent investigation while a case is still in the pretrial negotiation phase, because this maximizes the chances for a dismissal and ensures that my team is ready if a trial is necessary.

The information I gather during pretrial investigation often means that I know more about the case than the prosecutor.  My clients understand that doing a proper investigation costs money and they also understand why it is important to learn as much about the case as possible while pretrial negotiations are pending. Most other Austin criminal defense attorneys don’t do an extensive independent investigation until after the case is set for trial and the client pays their trial fee.  These attorneys may be cheaper to hire for pretrial negotiations only but, in my opinion, without a thorough investigation they are negotiating with one arm tied around their back.

Having more evidence and information also puts me in a premium position to evaluate the fairness of a conditional dismissal agreement or plea offer and also allows me to make a more accurate assessment of the odds of winning at trial.  With most other attorneys, the defendant has to make the decision of whether to accept or reject the state’s offer based on incomplete evidence.

When pretrial negotiation fails to produce an acceptable agreement, the case will be moved to the trial docket.  As the trial date approaches and the prosecutor learns more about the case from their own in-house investigation, they often come around to seeing things my way and decide to dismiss the case.

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What are Straight Dismissals?

A prosecutor may dismiss a case outright when he believes that the evidence does not support the charge or that a dismissal serves the interest of justice for some other reason.

As your defense attorney, I will carefully prepare your defense and investigate the quality of government’s evidence against you. Sometimes the evidence is insufficient. Sometimes it is inadmissible because it was improperly obtained. Sometimes I uncover contrary evidence that convinces the prosecution to dismiss the case outright.

For example, I once had a client charged with criminal trespass in an area that the police report described as heavily forested with statutorily prescribed criminal trespass warnings. The report conflicted sharply with my client’s description of the area. When I visited the scene, I discovered not only that my client was right but also that the investigating officer clearly lied to justify the arrest. After examining the packet I prepared with snapshots and Google map images of the scene, the prosecutor that I discussed the case with dismissed it outright.

Most cases don’t have such serious flaws but I personally examine the evidence in every one to be sure.

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What are Grand Jury Dismissals? (No-Bills)

Author Tom Wolfe famously quoted a New York judge as saying that a good prosecutor can persuade a grand jury to “indict a ham sandwich.” While this may be true, I have had great success in getting baseless felony charges thrown out at the grand jury level.

Generally speaking, prosecutors don’t want to waste their time prosecuting bogus cases, so when I can provide them with clear and compelling evidence that shows a very weak or baseless case, they often choose to dismiss the case or ask the Grand Jury to no-bill it before formal charges are filed. This type of grand jury work is only possible on felony cases when I am hired to represent the defendant before the case is formally indicted by the Grand Jury.

Texas law allows prosecutors to skip the step of presenting a case to a Grand Jury when misdemeanor charges are involved, which may explain why more baseless and marginal domestic violence cases seem to be filed in the County Courts at Law than in the District Courts.

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What are Deferred Prosecution Dismissals in Travis County?

Deferred Prosecution is not the same as Deferred Adjudication.  Texas law does not define Deferred Prosecution because it is simply the local name of one type of dismissal agreement between the defendant and the prosecution that is commonly used to resolve domestic violence cases in the county courts of Travis County, Texas. Other counties usually have their own conditional dismissal agreements which may have different names.

Here in Travis County, when the defendant enters into a Deferred Prosecution agreement, the prosecutor dismisses the case in exchange for a signed confession, a promise to not commit other crimes, and a promise to complete other conditions, like domestic violence counseling, substance abuse counseling or community service, during a specified period of time. If the defendant fails to meet the conditions by the end of the deferral period then the prosecutor will re-file the case and use the signed confession as evidence against the defendant. On the other hand, if the defendant successfully completes the terms of the agreement, then the case remains dismissed.

For domestic assault cases in Travis County, a Deferred Prosecution agreement is the most common type of dismissal during the pretrial negotiation phase of the case. If only a straight dismissal is acceptable then you should being trial preparations ASAP.

Deferred Prosecution is not as desirable as a straight dismissal, but if the defendant satisfies the agreement it can ultimately lead to expunction eligibility. Expunction is the process for having the arrest record removed from a person’s criminal history. The up-front dismissal means that the waiting period for an expunction is ticking away while the dismissal agreement is pending.

In felony cases, it is the policy of the Travis County District Attorney to limit Deferred Prosecution to first-time offenders accused of non-violent offenses.

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What are Deferred Disposition Dismissals in Travis County?

Deferred Disposition is also not the same as Deferred Adjudication.  Texas law does not define Deferred Disposition because it is simply the local name of one type of conditional dismissal agreement used for Class C misdemeanors in Austin Municipal Court and the Travis County J.P. courts. Other courts in other counties usually have their own conditional dismissal agreements, which may have different names.

This program is similar to the Deferred Prosecution program described above except the deferral period is typically shorter, the defendant may be required to pay a fine and court costs, and the dismissal order is entered after the terms have been completed.

When a defendant has a professional license or similar reason that prevents acceptance of the standard Deferred Disposition agreement, the Austin Municipal Court prosecutors may offer a dismissal agreement that they call Deferred Prosecution, but it is quite different from the conditional dismissal contract described above with the same name. This version is basically the same as Deferred Disposition except without the conditional plea and with extra community service instead of a fine.

Warning: For professional licensing purposes, the terms of this agreement may count as “court ordered community supervision.” You should always consult an independent attorney who is very experienced with handling professional licensing issues before accepting any type of plea agreement in a criminal case at any level.

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What are Pretrial Diversion Dismissals?

Unlike the Deferred Prosecution and Deferred Disposition agreements described above, Texas law explicitly authorizes Pretrial Diversion programs. Here in Travis County, the County Attorney’s office may offer Pretrial Diversion to a defendant accused of a low level, non-violent misdemeanor like shoplifting. Other Texas counties may use their Pretrial Diversion programs differently.

In Texas, successful completion of a qualified Pretrial Diversion Program results in a dismissal that can be expunged without the waiting period required to expunge most other types of dismissals.

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What are Charge Reduction Dismissals?

A reduction dismissal is a type of plea bargain agreement where the prosecutor dismisses the original charge and the defendant agrees to plead guilty or no-contest to a lesser charge or a charge with less serious consequences. For example, the prosecuting attorney may agree to dismiss an Assault Causing Bodily Injury charge if the defendant agrees to plead guilty to Simple Assault By Contact.

Warning: Under current Texas law, this type of dismissal can NOT be expunged unless the reduced charge is resolved by Deferred Disposition or some other disposition that is not a conviction. In the example above, pleading guilty to Assault By Contact means the arrest for Assault Causing Bodily Injury will stay on your criminal history and can’t be expunged. It is unwise to accept a reduction agreement without explicitly discussing the impact on your criminal history with your defense attorney.

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Why isn’t Deferred Adjudication a Full Dismissal?

Deferred Adjudication is not a true dismissal but rather a type of probation. The law says that deferred adjudication is not a “final conviction” but there are many exceptions and circumstances in which it might as well be a conviction.

The primary advantage of deferred adjudication over straight probation is that when a person successfully completes the probationary period, he may become eligible to file a petition for non-disclosure to have the record sealed from the general public. If the petition is granted, then he is legally entitled to deny the arrest on most job applications. Unfortunately, the arrest record will still be available to law enforcement and to certain professional licensing agencies and other specified entities, such as school districts and commercial transportation companies.

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What is Judicial Clemency in Texas?

A judge may optionally dismiss charges when a defendant is discharged from regular straight probation. An attorney can help with a motion for early termination of probation and judicial clemency.

If judicial clemency is granted, the case is dismissed, but this type of dismissal can’t be expunged. Rather, the language of the law is similar to deferred adjudication and there is some case law that suggests such cases may be eligible for non-disclosure.  A person discharged from felony probation with the judicial clemency language is not considered a convicted felon for the purpose of Texas Penal Code 46.04 (Unlawful Possession of Firearm) but they are for many other purposes.

Many of the day-to-day advantages of judicial clemency are also available by applying to the Texas Board of Pardons and Paroles for a restoration of rights.

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Dismissed Cases Are Not Automatically Removed From Your Criminal Record

Many people mistakenly believe that arrest records are automatically removed from a person’s criminal history when a criminal charge is dismissed. In reality, the arrest stays on the person’s record until he obtains an expunction. When a petition for expunction is granted, the court orders all official records of the arrest and prosecution to be destroyed. For more information, see our Expunction FAQ.

With a dismissal, a person must generally wait until the statute of limitations for the offense expires to be eligible for an expunction. The limitations period is two years for misdemeanors and three or more years for most felonies. Trial is obviously more risky than a dismissal or plea bargain agreement but being acquitted (found not guilty) at trial results in immediate eligibility for an expunction.