I was arrested on 2 felonies and bonded out 15 months ago for an altercation with my husband of 30 yrs "girlfriend" due to an ongoing long term affair. (specifics info avoided for legal reasons). I never went to court after the arrest in any capacity other than bond hearing at the jail where I was retained and then 24 hrs extradited to the county of complaint. My attorney told me a yr later the DA texted him and said she was not going to peruse the case and would send the paperwork but not followed through. Now I receive notification that if I pay the "girlfriend" a specific amount of money my charges will not be perused and can be expunged but if I didn't pay, the DA will take it to the grand jury. My attorney advises payment. Is this considered acceptible practice by a DA to threaten action unless I pay? I've never seen the complaint or warrant when arrested so I'm unaware of the contents of the complaint as to truth or falsification therein. "Feels like legal extortion?" I am almost in my mid-60s and have a clean record other than a speeding ticket many years ago.
1 Answer from Attorneys
It is not unheard of for there to be a request for restitution to resolve a case without charges being pursued. It is illegal for such an arrangement that does not have the approval of the prosecuting attorney. The statute is Section 36.05 Texas Penal Code, Tampering with a witness, which in pertinent part says:
(c) It is a defense to prosecution under Subsection (a)(5) that the benefit received was:
(1) reasonable restitution for damages suffered by the complaining witness as a result of the offense; and
(2) a result of an agreement negotiated with the assistance or acquiescence of an attorney for the state who represented the state in the case.
As you can see, the money requested must be for "reasonable restitution" and can't just be a pay off unrelated to any damages incurred by the alleged victim.
Your question does not provide enough information to determine whether the proposal to pay restitution is a good deal or one you should reject. You cannot be prosecuted for a felony unless a grand jury indicts you (unless you waive intdictment). There is no way from your question to determine the likely outcome of a presentation of your case to the grand jury.
If you have confidence in your attorney, it is usually advisable to follow their advice. If you don't have such confidence, it is appropriate to get a second opinion. It is always suggested that you consult with a Board Certified Criminal Law Specialist when possible.
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