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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 89345
Experience:  Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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my 15 year old son was walking the family dog at 11pm at night.

Resolved Question:

my 15 year old son was walking the family dog at 11pm at night. We live right next to a park (which closes at 11pm). At approx 11:15pm a police officer drove into the park and saw my son and dog. My son actually walked up to the officer's car. The officer asked him questions like what he was doing there. My son answered his questions and told him he was taking the dog for a walk. The officer then informed him the park closes at 11pm. My son stated he didn't realize that and will make sure he doesn't walk the dog in the park after 11pm. The officer released him to go home. As he was walking through the alley way the officer yelled to him and called him back over. It was at this point the officer showed him a glass filled with liquid and asked him if it was his. My son denied that it was his. After several times of the officer asking him about it and then telling him things will be easier if he admits it my son then finally said it was his even though it wasn't because he though the officer would then lecture him and send him home or bring him home. Instead the officer wanted to put him in the sqad car but our dog would not have any of that so the officer told him to sit on a park stop. I was called by the police department and went to the park where the officer and my son were. the officer asked me if I recognized the glass. I stated that it looks like it could be from my home. It was very late at this point, no lights on at the park, almost midnight and I was tired so my eyesight was blurry to details. The officer issued two citations 1. being in the park after park curfew and 2. Minor in possession. My son is adamant that the glass wasn't his (and after he and I got into the car he urged me to take a closer look at the glass, the glass is not ours, similar, yes, very much so, but not ours). We went sent a summons and went to court on the date specified. My son entered a plea of Not Guilty. The system in my city (state of Texas) is they try to defer all juvenille cases to the teen court system they have but my son does not want to plead no contest or guilty so he's not eligible for the teen court system. After he entered his plea they called his name from the back of the court room and brought he and I to a small room and tried to talk to him about the facts of the case. At that point I asked the woman what the purpose was for him to explain the facts of the case. She looked at me in confusion so I tried to reword the question but could only manage to repeat the question "what is the purpose for him to explain right now? That is what I thought court was for." At that point the woman was noticably mad and said okay we'll set a court date. That is the only answer I got from the question "what is the purpose for him to explain right now". My question for you is: What are the rules/rights/laws about questioning a minor with out an adult/parent/guardian present and if a motion to dismiss on the grounds of 1. Article 1, Sec. 9 of the Texas Constitution and Article 14.01 "offense within view" would apply as the glass was never seen in the possession of the officer.
Submitted: 2 years ago.
Category: Criminal Law
Expert:  Law Educator, Esq. replied 2 years ago.
1) There are no laws that state police cannot question a minor without parental consent. We get this question at least a dozen times a day and it is nothing more than an old wife's tale. As there is no law preventing them from questioning a minor in an investigation without a parent, the officer did nothing wrong.

2) Your son's attorney will argue that the officer never saw him in possession of the glass, which is grounds to be found not guilty. You cannot present any motion on behalf of your child, that would be considered the unauthorized practice of law as you are not licensed to represent your child in court. You will have to get an attorney to represent your child on this matter and question the officer regarding whether or not he saw your son with the glass and whether or not he actually matched the glass to your home. However, the statement your son made, the attorney would have to try to get thrown out based on the fact the officer never advised him of right to remain silent and right to counsel (Miranda). As to your statement that the glass looked like it was from your home, this can hurt, even with you claiming now the lighting was bad, but this is going to be up to the attorney to raise as part of their duty to raise reasonable doubt.

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Customer: replied 2 years ago.

It was a city police officer rather than a state police officer as you assumed in your answer and I didn't clarify in my description of the case. I don't know if that makes a difference or not. I should have also mentioned that before the park closed there were organized activities (I believe a flag football game) at the park that kept the park pretty full until closing time.

 

I don't understand why I would have to hire an attorney and why I can't represent him as he is a minor and can't be expected to represent himself. Can you direct me to where this is stated that I cannot represent him as I am not expecting any type of compensation from him?

Expert:  Law Educator, Esq. replied 2 years ago.
I did not assume anything in my answer, I am sorry if it came off that way (it was meant to be interpreted as there are no laws SAYING that police cannot question a minor without their parent). My answer applies to all law enforcement officers and encounters with them.

You are not an attorney, which is why you cannot represent him. The law allows you to represent yourself only, not others. For you to represent your son you would be committing the unauthorized practice of law.
Customer: replied 2 years ago.

ah... Paul, you did assume because you wrote "state police" in your answer. Had you just wrote "police" I would say then you are correct you didn't assume but because you actually included "state police" it was an assumption.

 

And, I still need to verify the whole representing my son thing as this forum's disclaimer states this is not legal advise so I'd really like to be able to verify the information you have presented.

Expert:  Law Educator, Esq. replied 2 years ago.
No, you misunderstood and you are taking those two words out of context and the whole sentence said there is no laws that state police... (state as in its other meaning as "saying"). But that is neither here nor there and I again I am sorry for the confusing.

I am sorry, you asked us, we have told you. We can do no more for you and you have received the correct information for your questions. I wish you all of the best and the best to your son.

Here are the Texas laws:

Section 81.101 of the Texas Government Code states:

(a) In this chapter the "practice of law" means the preparation of a pleading or other document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court as well as a service rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined.

(b) The definition in this section is not exclusive and does not deprive the judicial branch of the power and authority under both this chapter and the adjudicated cases to determine whether other services and acts not enumerated may constitute the practice of law.

(c) In this chapter, the "practice of law" does not include the design, creation, publication, distribution, display, or sale, including publication, distribution, display, or sale by means of an Internet web site, of written materials, books, forms, computer software, or similar products if the products clearly and conspicuously state that the products are not a substitute for the advice of an attorney. This subsection does not authorize the use of the products or similar media in violation of Chapter 83 and does not affect the applicability or enforceability of that chapter.

The above statute does not provide an exhaustive list of what constitutes the practice of law. The Texas Supreme Court has held that the courts ultimately decide what is the practice of law.

Section 81.102 of the Texas Government Code states who may practice law in Texas:

(a) Except as provided by Subsection (b), a person may not practice law in this state unless the person is a member of the state bar.

(b) The supreme court may promulgate rules prescribing the procedure for limited practice of law by:

(1) attorneys licensed in another jurisdiction;

(2) bona fide law students; and

(3) unlicensed graduate students who are attending or have attended a law school approved by the supreme court.

Other statutes also regulate the practice of law.

Section 83.001(a) of the Texas Government Code prohibits a "person, other than a person described in Subsection (b), may not charge or receive, either directly or indirectly, any compensation for all or any part of the preparation of a legal instrument affecting title to real property, including a deed, deed of trust, mortgage, and transfer or release of lien. Subsection (b) exempts licensed attorneys, real estate brokers or salesmen and mineral property lease transactions.

Section 38.122 of the Texas Penal Code prohibits a person from holding himself out to be a lawyer unless licensed to practice law if it is done with an intent to obtain an economic benefit.

Section 38.123 of the Texas Penal Code prohibits a person from taking certain actions with respect to personal injury claims if done with an intent to obtain an economic benefit.


Customer: replied 2 years ago.

Thanks for your clarification on the "state police" statement.

 

So you are saying you can't back up your answers or tell me where the "fact" is stated? I will not be presenting myself as a lawyer, just a representative for my son.

 

No reply neccessary

Expert:  Law Educator, Esq. replied 2 years ago.
I did "back up my answers" as you put it with the law above from the Texas Supreme Court about unauthorized practice of law. Good day.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 89345
Experience: Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
Law Educator, Esq. and 10 other Criminal Law Specialists are ready to help you
Expert:  Ely replied 2 years ago.
Hello,

I am a licensed attorney in Texas. I am going to agree with the previous expert. I am sorry to say that the state takes a very stern stance in regards XXXXX XXXXX of law. This means that no one without a bar license in the state may represent someone else, relative or not.

While the legal system tries to be inclusive of every possibility, sometimes people are morally wronged but have limited avenues to seek relief. Please understand that this is not the expert’s fault.

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