To say that it is awkward to speak to someone who is trying to fine your business thousands of dollars or take away your license to work is a massive understatement. That, however, is exactly the case when you choose to talk directly to a prosecutor at the Texas Department of Licensing and Regulation (“TDLR”).
Let’s be clear – the prosecutor is not on your side. He or she is neither your friend nor there to help you. TDLR prosecutors are tasked with enforcing Texas laws and occupational regulations. That means that if they believe you have violated the law, they are there to collect a fine or get a decision to enforce an administrative penalty. While prosecutors may be willing to make a deal with you, rest assured they are neither intimidated by anything you say nor swayed by most legal arguments you assert.
Remember – you’re talking to a lawyer when you speak with a prosecutor. That prosecutor has formal training, including years of experience in trial techniques, rules of procedure, and carrying the burden of proof. The likelihood of you “out-lawyering” someone like that is slim. It is not that the prosecutors are smarter than you. Rather, prosecutors simply know how to handle the situation better than you because they do it every day.
When speaking with a prosecutor, there are some simple rules to remember that will help you get along better with the person working for the agency that is taking action against you. First, be polite. While this sounds odd given that a prosecutor is there to potentially fine you or revoke your license, you have to remember that this is a civil dispute – it is not personal to the prosecutor. Acting out, raising your voice, and other such activities do nothing for your case.
Second, listen to what they are saying. Lawyers speak in legalese, which is a very precise language. You need to understand exactly what violations TDLR is alleging before you can defend against them. If you do not understand the allegations and the violations that are being brought against you, you will waste valuable time and effort defending against things that may not be relevant to the proceeding.
Third – ask what the prosecutor can do for you and what options you have. A simple rule in any legal proceeding is “you can’t get if you don’t ask.” There may be a deal waiting for you that you are not aware of simply because you didn’t ask about the available options. There is no harm in asking for an out. You don’t have to admit you did something wrong in order to find out what options are out there for you.
Fourth, it is best to have an experienced attorney deal with a prosecutor for you or your business. Like any attorney, TDLR prosecutors are not the end-all be-all of knowledge on administrative and professional licensing law in Texas. They are human and they make mistakes from time to time. You, however, may or may not catch a technical mistake that a prosecutor makes in bringing charges. Lawyers find mistakes for a living. It is their job to analyze and pull cases apart in order to defend their clients. While not every case will require an attorney, if there is a good amount as a threatened fine or any threat of license revocation or suspension, it’s time to call an attorney.
Finally, remember that if you take a deal with TDLR, you will frequently have to admit that there was a violation. That means that the next time TDLR thinks you made a mistake, that prosecution can result in higher fines and stiffer penalties. There is currently no express statute of limitations on second or third violations, and all it takes is that first one to trigger those stiffer penalties. This is another good reason to fight to protect your business and your license by getting an experienced attorney on the case.
Dealing with TDLR prosecutors can be frustrating – there is no doubt about it. However, with the proper preparation and strict diligence, you can avoid prosecutors altogether and have a far less stressful work experience. The best defense is a good offense, and that means taking affirmative steps to familiarize yourself with licensing requirements, annual obligations, statutes, and administrative regulations that govern your occupation.