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Zachary
Zachary, Attorney
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Experience:  Lead trial/International commercial attorney licensed 11 yrs
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My house was broken into last year. I found out a day later

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My house was broken into last year. I found out a day later from a neighbor that a kid had done it. I called the police and they eventually caught the kid and he confessed to breaking in. This was over a year ago. Today I get a letter in the mail saying I will receive $1280 for restitution. The problem I am having is the correct amount is $2200 which is on the police report I submitted. Two people were in touch with my from the Travis County (TX) office. One was a victim services lady and the other was the probation officer. The victim services lady asked me how much my deductible was on my home owners. She brought up the insurance and I didn't know the answer. This lady told me it was usually %10 of my loan. I said it would be about 1280 then. It turns out they used this as my restitution. I did not submit any documents stating that and I did not say I was using insurance. I also did not file a claim. I was not going to either. I told both, the victim services lady and probation officer that I was not going to file a claim and the $1280 was incorrect. I never sent them any documents stating the 1280 was a correct number. I tried calling today to see what I could do and I'm getting a run around from the Attorney, Probation officer, and the Victim Services lady. The Victim Services lady was the person that messed this up first. She brought the insurance conversation up and asked for the amount. I never said I was filing a claim. She then passed this on to the probation officer. I called her before the court hearing and told her that the $1280 was incorrect and the correct number is XXXXX the police report. She said, "Well this is the information I have." I called the attorney today and she said I need to speak with the probation officer or her supervisor. I've been dealing with this over a year. I want it to end and get my money back. I was told now that the court case is over I can't change that $1280 number and the attorney said the case, all evidence, and admitting to the crime would be thrown out and they would have to start over from scratch if I tried to change this. Also, I was never given a court date or told if I could go to the hearing. There was no communication from these people before the court date. I was always calling them.

1.) Should I get my own attorney for this?

2.) Am I legally required to file a claim on my insurance for this?

3.) What are my options for civil court? This was mentioned to me from someone.

4.) Can I do anything about the incompetence of these Travis County people that have screwed stuff up and dragged this out over a year? From the Detective to the people I'm dealing with now all screwed up along the way?
Submitted: 1 year ago.
Category: Legal
Expert:  Zachary replied 1 year ago.
Hi,

Thank you for your question.

How did you derive at the value of the property stolen at $2,200?
Customer: replied 1 year ago.


The police took notes when I first called them after I came home to find my place was broken into. They gave me a form to fill out that listed everything stolen. I submitted that and that is what I'm going off. The form I gave to the police showing everyting stolen and the price value.

Expert:  Zachary replied 1 year ago.
Ok, from what you are telling me, the value you are listing for the personal property that was stolen is the price you paid for it at the store. This is known as the replacement price.

The law states the following:

"Whether to order restitution is within the sound discretion of the trial court. The amount of restitution ordered must, however, be just and it must have a factual basis in the record. Although restitution in juvenile cases is limited to actual damages, it is construed that term in accordance with the approach to restitution in criminal cases. In criminal cases, the trial court has broad discretion in determining just restitution. Tex. Code Crim. Proc. Ann. art. 42.037 (Vernon Supp. 2001)"

In re W.F., 2001 Tex. App. LEXIS 2200 (Tex. App. Dallas Apr. 5, 2001)

In other words, it is within the court's discretion as to what amount it wants to order restitution at. It cannot be higher than the value of the property taken, but it can be lower. While the court may have set the restitution amount too low, because it has already been ordered by the court, there is no way for you to go and have that amount changed.

Rather, you should file suit in Travis County small claims court for the rest of the amount. You should sue for conversion and request the full amount of replacement costs.

In regard to being to hold anyone liable at Travis County, you do not have standing under the law to do this. The best you can do is make a complaint to their supervisors. This is because a victim is not per se entitled to a restitution order from a criminal proceeding. You as the victim are entitled to go to civil court to sue for the value of your property.

Please let me know if you need further information. Please also consider rating my answer positively so that I am compensated for my work by the website.

Thanks,
ZDN
Zachary, Attorney
Category: Legal
Satisfied Customers: 3825
Experience: Lead trial/International commercial attorney licensed 11 yrs
Zachary and 15 other Legal Specialists are ready to help you
Customer: replied 1 year ago.


Couple more questions. The kid was 16 or 17 at the time he broke into my house. Do I take him or his legal guardian to small claims court?


 


The number $1280 came from the victim services lady. She passed that on to the probation officer who used that in court. I told the probation officer it was wrong and she ignored me. So these two aren't liable for using some arbitrary number?

Expert:  Zachary replied 1 year ago.
Hi,

Sue both of them. You have a different standard to prove liability against the parent/guardian:

"To impose civil liability on a parent for a child's intentional tort, the plaintiff must prove the injury to the third party was reasonably foreseeable under the circumstances as evidenced by the parent's knowledge, consent, sanction, or participation in the child's activities."

Cohen v. Hoose, 2007 Tex. App. LEXIS 8280 (Tex. App. Beaumont Oct. 18, 2007)

So you will want to sue both.

In regard to the bad work by the Travis County employees, they do not owe a duty to the victim of a crime regarding restitution. So there is no civil liability.
Zachary, Attorney
Category: Legal
Satisfied Customers: 3825
Experience: Lead trial/International commercial attorney licensed 11 yrs
Zachary and 15 other Legal Specialists are ready to help you

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