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I wanted to clarify two points that have come up. There seems to be some question about the arrest and some question about the liability of the department.

First, how the arrest can affect the person. It is true that the arrest will be on his record forever unless it is expunged. It should never cause him any harm since there is no conviction to go with it, but many people still operate under the theory of an accusation is equal to guilt. The statute of limitations on a misdemeanor is two years, which means that the Dalhart PD could file the case again any time in the next two years. I doubt that would happen based on the facts stated in the thread. But, it also means the record cannot be expunged for two years, because the courts will only expunge the record when the law says it is no longer applicable. This is all explained in Article 55 of the Code of Criminal Procedure. When an expunction is ordered by the court, every department or agency with any record of the offense (in this case, the PD, the Sheriff's office, DPS, and the FBI) are ordered by the court to go through all records and remove the person's name and any information identifying the person or the criminal charge or arrest. If any person reveals any information about the arrest after it has been expunged, they are guilty of a class B misdemeanor. This charge is usually taken seriously by the D.A's and courts I know of, since they really do intend to protect the innocent. The law specifically states the person arrested may deny the arrest or expunction order even exists, unless he is testifying in a criminal court proceeding under oath about an arrest that the expunction order concerns, in which case he is to answer simply that it has been expunged.

What this means to me in this case is that I would recommend that the person go to court in two years to get the record expunged. I would not worry too much more about it until then, but reveal the arrest if asked in any official type of proceeding, including job applications. They may not take action based on the arrest, but they can take action for not disclosing it (lying). To lessen the future costs, I would probably write a letter to the Chief, Mayor, and city attorney letting them know that you understand the mistake and expect the city attorney to represent you in an expunction proceeding as soon as it is legal to file. A reasonable attitude with the city should get a reasonable response. If they do not, you MIGHT have a possible civil suit to recover the costs of the expunction hearing when it occurs (but there is no cost yet so no liability on it yet).

Second, I wanted to explain why there is limited chance of winning the liability suit against the police. The arrest was clearly wrong, but one of the things necessary to prove in the court case is the intent of the officer. If the officer was simply mistaken about the law, he is not liable. A 1983 suit requires proof of intent to violate the civil rights. This means it would require proof that the officer KNEW what he was doing was wrong and did it anyway. This might even be true, but it is a very hard to prove. When you read the court cases that establish new legal precedent, you will find the cops are not usually liable because the law was not clearly established at the time. Yes, I know this law was clearly established, but the principle of the officer knowing it applies. This is one of the more serious flaws in our courts, but to be honest, the old saying about ignorance of a law not being an excuse is just an old saying and not a real legal principle. We do need to improve the requirements for training of the police, especially on how we keep them up to date on the laws.

Remember that this is just my opinions based on my experiences with the criminal justice system. I am not now, nor ever have been, a lawyer. I may not be accurate in the details of how things work or my interpretation of the law. My advice is not to be construed as legal advice, and the best advice is still to discuss this with your lawyer (the expunction part was probably not discussed earlier)..

Johnwatson,

From your description, your cousin is not guilty of a crime. Obviously, this is not a conclusive statement since I do not have the full police report and their side of the incident to refer to. The current law, as modified by the Motorist Protection Act, does make it legal for him to have a weapon in a vehicle that is under his control, given certain other conditions (concealed, no other crimes, not a gang member, etc.).

But that does not help him right now. He is being charged and you need to get help with that aspect. I strongly suggest you find the best local criminal defense lawyer you can afford. A lawyer will know how to get bond posted or reduced, how to get the police reports and find the exact charges. I recommend the best lawyer you can afford since, as in almost everything, quality costs money and most of us cannot afford top quality. But this is truly one area where you cannot afford less than the best, so make the best deal you can. And I recommend a local lawyer because they will know the local procedures and politics as well. I hate to admit it, but in many cases, local politics is almost as important as guilt or innocence is. bringing in a high powered outside lawyer to a small rural town may inflame the jury more than the original offense did. The jury is not as sensitive in big cities like Houston, but the court house politics can be just as important to your case (knowing which judge will get the case and how to steer it to a favorable judge, etc.).