Volume 20 August 2011 No. 5 © 2011 Texas Municipal Courts Education Center. Funded by a grant from the Texas Court of Criminal Appeals.

INSIDE THIS ISSUE

LLegislativeegislative Features Court Costs and Administrative UpdateUpdate Issues ...... 19 Juvenile Justice and Issues Relating to Children ...... 45 Magistrates Issues and Domestic Violence ...... 13 Ordinance and Local Government Issues ...... 42 Procedural Law ...... 1 Substantive Criminal Law ...... 28 Traffi c Safety and Transportation Code Amendments ...... 64

PROCEDURAL LAW Charts The Big Three...... 81 Registration-Inspection-Financial — High Priority — Responsibility Requirements H.B. 27 will increase the likelihood Comparisons of Deferred Options ... 11 Subject: Compulsory Installment of defendants paying off the full Court Costs ...... 26 Payments of Fines and Costs by amount of the fi ne in a more effi cient Defenses to Prosecution ...... 80 Defendants Who Are Unable to Pay and timely manner. the Fines and Costs Municipal Juvenile/Minor ...... 55 New Class A and B Misdemeanors .. 41 H.B. 27 Commentary: Without the aid Effective: September 1, 2011 of the Code Construction Act New Class C/Fine-Only Offenses .... 40 (particularly, Section 311.023 of the New Punishments for Old Crimes ... 39 H.B. 27 amends Articles 42.15 and Government Code), this bill can be New Ways to Commit Old Crimes .. 39 45.041 of the Code of Criminal misinterpreted. If Article 45.041 of Passenger Restraint Laws ...... 78 Procedure by ensuring that defendants the Code of Criminal Procedure is “Probation Related,” Compliance, unable to immediately pay a fi ne and read in isolation, this amendment and Other Dismissals ...... 85 costs are allowed to make payments can be misconstrued to mandate in specifi ed portions at designated payment plans to the exclusion of Other intervals. discharge by community service. The FY 11-12 Schedule ...... 89 legislative history is clear; however, Index of Summaries ...... 4 The author and the sponsor of the the language of the bill is less so. (numerical order) bill state that payment options for a This bill is not intended to impede Register Online ...... 54 person unable to pay court fi nes and or prohibit a court from allowing a Registration Forms ...... 90 costs are limited and that payment defendant to discharge fi nes and costs Table of Summaries ...... 3 can easily become a heavy burden for by performing community service. (topical order) individuals with low incomes. The author and the sponsor believe that Procedural Law continued pg 5 Texas Municipal Courts Education Center About This Issue 1609 Shoal Creek Boulevard, Suite 302 Austin, Texas 78701 512.320.8274 or 800.252.3718 Fax: 512.435.6118 In the wake of historic economic hard times for the nation, the Texas 82nd www.tmcec.com Regular Legislature convened on January 11, 2011. The Texas Municipal Courts Education Center (TMCEC) tracked 796 bills, during the course of this session. Fair and Impartial Justice for All 140 days later, only 187 of the bills tracked (or 23.5 percent) became law. While there was one Special Session, it had minimal implications on municipal FY11 TMCEC Offi cers courts. Notably, this is the fi rst session in more than a decade in which no new court costs were created for municipal court cases. (In fact, one court cost was President: Stewart Milner, Arlington actually repealed!) President-Elect: Donna Starkey, Alvin 1st V.P.: Steven Williamson, Fort Worth 2nd V.P.: Robin A. Ramsay, Denton This publication contains 140 bill summaries divided into seven distinct Secretary: Hilda Cuthbertson, Bryan categories: Juvenile Justice and Issues Relating to Children; Court Costs and Treasurer: Robert C. Richter, Missouri City Administrative Issues; Ordinance and Local Government Issues; Substantive Past-President: Ed Spillane, College Station Criminal Law; Magistrate Duties and Domestic Violence; Traffi c Safety and Directors Transportation Issues; and Procedural Law. Jan Matthews, Lubbock • Ninfa Mares, Fort Worth • Brian Holman, Lewisville • Odell S. Holmes, El Paso • Kathleen Person, Temple Within each category, we have further categorized bills as high and medium • Phyllis Mathison, Bastrop • Letitia Farnie, priority. While this structure is helpful in learning changes in the law, we are Pearland • Julie Escalante, Baytown • George the fi rst to admit that any attempt at prioritization is somewhat subjective. Robinson, Yorktown Accordingly, readers are encouraged to read all of the bill summaries (regardless Staff if categorized high or medium priority) in order that you may ascertain local · Hope Lochridge, Executive Director applicability. If you prefer to read bill summaries organized numerically, rather · Ryan Kellus Turner, General Counsel & Director of Education than by topic, an alternate version of the legislative issue of The Recorder is · Mark Goodner, Program Attorney & Deputy available online at www.tmcec.com. Counsel · Cathy Riedel, Program Director The summaries contained in this publication were written during the months · Katie Tefft, Program Attorney of May, June, and July. Thus, when a summary refers to “current law,” it is · Margaret Danforth, Administrative Director · Deadra Stark, Research Assistant referring to the law prior to the day of the bill’s legislative enactment. Most · Pat Ek, Registration Coordinator amendments, except where noted, are effective September 1, 2011. · Scott Hume, Administrative Assistant · Tessa Madison, Program Coordinator TMCEC could not bring this compilation to you and maintain our educational · Crystal Peiser, Communications Assistant mission without the assistance of the State of Texas, more specifi cally, the · Jameson Crain, Multi-media Specialist · Cielito “Sky” Apolinar, Program Assistant House Research Organization (HRO), the Senate Research Center (SRC), and · Lisa Robinson, TxDOT Grant Administrator the Legislative Budget Board (LBB). While in some instances we have made · Hong Escobar, TxDOT Grant Administrator non-substantive edits and/or adaptations, the bill summaries contained in this compilation are derived from the work product of the State of Texas and the Published by the Texas Municipal Courts forenamed agencies. We are most appreciative for their efforts. Education Center through a grant from the Texas Court of Criminal Appeals. An annual subscription is available for $35. Many of the summaries are followed by commentary. The commentary is the collaborative efforts of the four TMCEC staff attorneys. Thanks to Mark Articles and items of interest not otherwise Goodner, Cathy Riedel, and Katie Tefft for their contributions. I also want to copyrighted may be reprinted with attribution as follows: “Reprinted from The thank Elizabeth Angelone and R, Christopher Baker, who both attend St. Mary’s Recorder: The Journal of Texas Municipal School of Law, Patty Thamez, Hope Lochridge, Jameson Crain, Cielito Apolinar Courts with permission from the Texas and the rest of the TMCEC staff for their commendable efforts in bringing this Municipal Courts Education Center.” information to the courts and the people of Texas. The views expressed are solely those of the authors and are not necessarily those of the Finally special thanks to the Legislative Update faculty who volunteered their TMCEC Board of Directors or of TMCEC time and energy to make the Legislative Updates a reality: Stewart Milner, staff members. Robin Ramsay, Eric Ransleben, and Ed Spillane. Your service to our courts and to TMCEC’s educational mission is much appreciated.

Ryan Kellus Turner General Counsel & Director of Education, TMCEC August 26, 2011 Page 2 The Recorder August 2011 Table of Summaries

Procedural Law S.B. 434...... 18 H.B. 718...... 32 S.B. 209...... 48 High Priority S.B. 483...... 18 H.B. 1123...... 32 S.B. 578...... 49 H.B. 27...... 1 S.B. 819...... 18 H.B. 1215...... 32 S.B. 1106...... 49 H.B. 963...... 5 Court Costs and H.B. 1666...... 33 S.B. 1241...... 50 H.B. 1070...... 5 Administrative Issues H.B. 1856...... 33 S.B. 1331; H.B. 3474 S.B. 480; H.B. 3475 High Priority H.B. 2014...... 33 ...... 50 ...... 6 H.B. 174...... 25 H.B. 2118...... 34 S.B. 1489...... 51 S.B. 519...... 8 H.B. 984...... 19 H.B. 3000...... 34 Medium Priority S.B. 604...... 9 H.B. 1517...... 19 H.B. 3396...... 35 H.B. 734...... 52 Medium Priority H.B. 1559...... 19 S.B. 24...... 35 H.B. 1907...... 53 H.B. 215...... 9 H.B. 1573...... 20 S.B. 82...... 36 H.B. 2132...... 53 H.B. 1638...... 9 H.B. 1658...... 20 S.B. 158...... 36 S.B. 653...... 53 H.B. 2847...... 9 H.B. 1771...... 20 S.B. 377...... 37 S.B. 1094...... 54 S.B. 316...... 10 H.B. 2717...... 25 S.B. 496...... 37 Traffi c Safety and S.B. 1522...... 10 H.B. 2949...... 21 S.B. 887...... 37 Transportation Magistrates Issues and S.B. 1 (1st Special S.B. 1043...... 37 Code Amendments Domestic Violence Session)...... 21 S.B. 1416...... 38 High Priority High Priority S.B. 321...... 22 Ordinance and Local H.B. 42...... 64 H.B. 79 (1st Special S.B. 1386...... 22 Government Issues H.B. 109...... 64 Session)...... 13 S.B. 1521...... 22 High Priority H.B. 242...... 64 H.B. 976...... 13 Medium Priority H.B. 787...... 42 H.B. 378...... 65 H.B. 1721...... 13 H.B. 351; S.B. 462 H.B. 1906...... 42 H.B. 588...... 65 H.B. 1822...... 14 ...... 23 H.B. 3547...... 43 H.B. 885...... 65 H.B. 1823...... 14 H.B. 1481...... 24 H.R. 1486...... 43 H.B. 890...... 66 H.B. 1829...... 14 H.B. 1504...... 24 S.B. 173...... 43 H.B. 1010...... 66 H.B. 1891...... 14 H.B. 1889...... 25 S.B. 493...... 43 H.B. 1116...... 66 S.B. 116...... 15 H.B. 2047...... 25 Medium Priority H.B. 1201...... 67 S.B. 279...... 15 Substantive Criminal Law H.B. 1376...... 44 H.B. 1353...... 67 S.B. 877...... 15 High Priority S.B. 1258...... 44 H.B. 1473...... 67 S.B. 1681...... 15 H.B. 218...... 28 S.J.R. 26; S.B. 760 H.B. 1899...... 68 S.B. 1787...... 16 H.B. 2329...... 28 ...... 44 H.B. 2017...... 68 Medium Priority H.B. 2507...... 29 Juvenile Justice and Issues H.B. 2357...... 69 H.B. 649...... 16 S.B. 197...... 29 Relating to Children H.B. 2466...... 70 H.B. 905...... 16 S.B. 331...... 29 High Priority H.B. 2596...... 70 H.B. 994...... 16 S.B. 407...... 30 H.B. 350...... 45 H.B. 2851...... 70 H.B. 1173...... 17 S.B. 1024...... 31 H.B. 359...... 45 H.B. 2981...... 70 H.B. 2337...... 17 Medium Priority H.B. 961...... 46 S.B. 990...... 71 H.B. 2496...... 17 H.B. 25...... 31 H.B. 1942...... 47 S.B. 1330...... 71 H.B. 2624...... 17 H.B. 260...... 31 H.B. 1964...... 47 S.B. 1608...... 72 S.B. 250...... 18 H.B. 290...... 32 S.B. 61...... 48 Medium Priority H.B. 90...... 72 Acronyms Used in The Recorder H.B. 559...... 72 H.B. 596...... 73 H.B. 1395...... 73 CDL Commericial Driver License H.B. 1514...... 73 CMV Commercial Motor Vehicle H.B. 1737...... 74 DPS Department of Public Safety H.B. 2080...... 74 H.B. 2469...... 74 OCA Offi ce of Administration H.C.R. 114...... 75 TEA Texas Education Agency S.B. 469...... 75 TxDMV Texas Department of Motor Vehicles S.B. 959...... 75 TxDOT Texas Department of Transportation S.B. 1292...... 76 S.B. 1420...... 76 TMCA Texas Municipal Courts Association S.B. 1610...... 76 TMCEC Texas Municipal Courts Education Center S.B. 1755...... 77 TSLAC Texas State Library and Archives Commission

Page 3 The Recorder August 201 Table of Summaries in Bill Order

H.B. 25...... 31 H.B. 994...... 16 H.B. 1907...... 53 S.B. 82...... 36 H.B. 27...... 1 H.B. 1010...... 66 H.B. 1942...... 47 S.B. 116...... 15 H.B. 42...... 64 H.B. 1070...... 5 H.B. 1964...... 47 S.B. 158...... 36 H.B. 79 (1st Special H.B. 1116...... 66 H.B. 2014...... 33 S.B. 173...... 43 Session)...... 13 H.B. 1123...... 32 H.B. 2017...... 68 S.B. 197...... 29 H.B. 90...... 72 H.B. 1173...... 17 H.B. 2047...... 25 S.B. 209...... 48 H.B. 109...... 64 H.B. 1201...... 67 H.B. 2080...... 74 S.B. 250...... 18 H.B. 174...... 25 H.B. 1215...... 32 H.B. 2118...... 34 S.B. 279...... 15 H.B. 215...... 9 H.B. 1353...... 67 H.B. 2132...... 53 S.B. 316...... 10 H.B. 218...... 28 H.B. 1376...... 44 H.B. 2329...... 28 S.B. 321...... 22 H.B. 242...... 64 H.B. 1395...... 73 H.B. 2337...... 17 S.B. 331...... 29 H.B. 260...... 31 H.B. 1473...... 67 H.B. 2357...... 69 S.B. 377...... 37 H.B. 290...... 32 H.B. 1481...... 24 H.B. 2466...... 70 S.B. 407...... 30 H.B. 350...... 45 H.B. 1504...... 24 H.B. 2469...... 74 S.B. 434...... 18 H.B. 351; S.B. 462 H.B. 1514...... 73 H.B. 2496...... 17 S.B. 469...... 75 ...... 23 H.B. 1517...... 19 H.B. 2507...... 29 S.B. 480; H.B. 3475 H.B. 359...... 45 H.B. 1559...... 19 H.B. 2596...... 70 ...... 6 H.B. 378...... 65 H.B. 1573...... 20 H.B. 2624...... 17 S.B. 483...... 18 H.B. 559...... 72 H.B. 1638...... 9 H.B. 2717...... 25 S.B. 493...... 43 H.B. 588...... 65 H.B. 1658...... 20 H.B. 2847...... 9 S.B. 496...... 37 H.B. 596...... 73 H.B. 1666...... 33 H.B. 2851...... 70 S.B. 519...... 8 H.B. 649...... 16 H.B. 1721...... 13 H.B. 2949...... 21 S.B. 578...... 49 H.B. 718...... 32 H.B. 1737...... 74 H.B. 2981...... 70 S.B. 604...... 9 H.B. 734...... 52 H.B. 1771...... 20 H.B. 3000...... 34 S.B. 653...... 53 H.B. 787...... 42 H.B. 1822...... 14 H.B. 3396...... 35 S.B. 819...... 18 H.B. 885...... 65 H.B. 1823...... 14 H.B. 3547...... 43 S.B. 877...... 15 H.B. 890...... 66 H.B. 1829...... 14 H.C.R. 114...... 75 S.B. 887...... 37 H.B. 905...... 16 H.B. 1856...... 33 H.R. 1486...... 43 S.B. 959...... 75 H.B. 961...... 46 H.B. 1889...... 25 S.B. 1 (1st Special Session) S.B. 990...... 71 H.B. 963...... 5 H.B. 1891...... 14 ...... 21 S.B. 1024...... 31 H.B. 976...... 13 H.B. 1899...... 68 S.B. 24...... 35 S.B. 1043...... 37 H.B. 984...... 19 H.B. 1906...... 42 S.B. 61...... 48 S.B. 1094...... 54 S.B. 1106...... 49 A Note to Our Readers S.B. 1241...... 50 S.B. 1258...... 44 S.B. 1292...... 76 S.B. 1330...... 71 • Please note that when the bill summaries refer S.B. 1331; H.B. 3474 ...... 50 to the “current law,” they are referring to the S.B. 1386...... 22 law as it exists at the time of this publication S.B. 1416...... 38 and not as it will be affected after the Effective S.B. 1420...... 76 Date. S.B. 1489...... 51 • The bills are categorized in the text by both S.B. 1521...... 22 subject matter and priority. A numerical listing S.B. 1522...... 10 of the bills may be found on the TMCEC S.B. 1608...... 72 website (www.tmcec.com). In terms of S.B. 1610...... 76 prioritization, our categorization is admittedly S.B. 1681...... 15 subjective. Readers are encouraged to read S.B. 1755...... 77 S.B. 1787...... 16 all bill summaries in order to ascertain local S.J.R. 26; S.B. 760 applicability...... 44 • Full-text versions of the bills may be found on ! the TMCEC website or on the Texas Legislature Online website (www.capitol.state.tx.us).

Page 4 The Recorder August 2011 Procedural Law continued from pg 1 hearings in Texas and posed a series replaces the term “transcript” with of unanswered questions that judges, “clerk’s record.” This is likely a Rather, it is intended to guarantee that attorneys, and animal rights advocates conforming change intended to once a judge makes the determination have long wished the Legislature denote that there is no longer a need that a person is unable to immediately would answer (see, Katie Tefft, “Give for a “reporter’s record” (see, Section pay, the defendant is guaranteed a Dog a Bone: The Criminal and 30.00019, Government Code; Rule a payment plan. Ostensibly, this Civil Side of Animal Cruelty” The of Appellate Procedure 34.6), if the amendment prevents judges from Recorder (January 2011)). Many case originates in a municipal court committing such defendants to jail of the questions posed in the article of record. The change, however, may who are unable to immediately relate to the generally amorphous cause confusion in non-record courts pay. This amendment is, however, nature of animal cruelty hearings and where the term “clerk’s record,” inapplicable to instances where the absence of clear procedures and defi ned in Section 30.00017 of the the judge fi nds that that defendant standards in Texas law. Government Code and Texas Rule is capable of payment and orders of Appellate Procedure 34.5, are not payment at some later date. The While Section 821.025 already utilized. amendment only applies to offenses authorizes appeals from animal committed on or after the effective cruelty hearings, H.B. 963 ostensibly Subject: Taking of a Defendant's date. attempts to ensure that no law is Bail Bond by County Jailers construed by any court as barring H.B. 1070 Subject: Costs and Appeals in Civil an appeal from either a municipal Effective: June 17, 2011 Cruelly-Treated Animal Hearings or justice court to county court for H.B. 963 reasons similar to those stated in While sheriffs and other peace Effective: September 1, 2011 In re Loban, 243 S.W.3d 827 (Tex. offi cers are authorized by Article App.—Fort Worth 2008) (holding, 17.20 of the Code of Criminal Commentary: One of the lessons albeit in the context of dangerous dog Procedure to take a bail bond of learned in the wake of the City of determinations, that county courts are a defendant held in a jail on a Arlington seizing of approximately without jurisdiction to hear appeals misdemeanor charge, such peace 27,000 cruelly-treated animals (the from municipal courts, except in offi cers do not typically work in the case against U.S. Global Exotics, criminal cases). jail. reported to be the largest animal seizure in the nation’s history) is H.B. 963 clarifi es that appellants To increase effi ciency and reduce that current Texas law (found in are not required to fi rst fi le a motion overcrowding, H.B. 1070 creates Chapter 821 of the Health and Safety for new trial to perfect an appeal Article 17.025 and amends Article Code) is defi cient when it comes to (presumably because the matter is a 17.20 of the Code of Criminal assigning related costs following a “hearing” and not a “trial.”) Procedure to allow a jailer to determination of animal cruelty in a take a defendant's bail bond in a municipal or justice court. Whether there is right to a jury misdemeanor case. trial in civil animal hearings has H.B. 963 amends Section 821.023 to been a matter of contention. H.B. H.B. 1070 also establishes that a clarify that when setting an appellate 963 expressly provides that, once county jailer licensed by the Texas bond, costs can be ordered at the a hearing has been appealed to a Commission on Law Enforcement conclusion of a civil cruelly-treated county court, a party to the appeal Offi cer Standards and Education is animal hearing and that a court can may request a jury trial (Section considered to be an offi cer for the consider the costs that an animal 821.025(d)). The Legislature, purposes of taking a bail bond and shelter or nonprofi t animal welfare however, created no similar provision discharging any other related powers organization is likely to incur during for a jury trial in either a municipal or and duties under provisions of law an appeal. The bill creates a new justice court. regarding bail. formula in calculating the amount of the appeal bond and provides that the Under H.B. 963, all appeals from Commentary: Though it dates back appeal bond must be either be cash or cruelly-treated animal hearings shall to as early as the 1880s, the legal a surety bond (personal bonds are not be considered de novo by county authority for individuals who are authorized). courts regardless if the hearing was not members of the judiciary to set initially conducted in a municipal and take bail is a source of criticism Earlier this year, TMCEC featured court of record. With no explanation (particularly by judges who routinely an article on cruelly-treated animal in the legislative history, the bill preform magistrate duties). Critics

Page 5 The Recorder August 201 question whether most peace offi cers Although it has been four years House to S.B. 480. While H.B. 3475 (and now jailers) know what is since the invitation was made, the was also passed into law (effective required under the Constitution and Legislature has accepted. S.B. 480 September 1, 2011), it is important to are property trained to apply the provides for jurisdiction in the courts note that S.B. 480 became effective rules for setting bail contained in of appeal for misdemeanor offenses immediately upon the Governor’s Article 17.15 of the Code of Criminal in which the penalty imposed is a signature on June 17, 2011. Procedure. fi ne of $100 or less, provided that the sole issue being appealed is the S.B. 480 repeals Section 29.012 and Subject: Appeals from Municipal constitutionality of the statute or replaces it with a comprehensive Courts of Record / Recusal and ordinance that was the basis for the series of procedures located in Disqualifi cation of Municipal conviction. Subchapter A-1 of Chapter 29 of Judges / Timely Reporting of the Government Code. These rules, Certain City Offi cials to OCA Section 2: Procedures Governing adapted from Texas Rule of Civil S.B. 480; H.B. 3475 Recusal and Disqualifi cation of Procedure 18A, are designed to Effective: June 17, 2011 Municipal Judges accommodate all sizes of municipal courts, and strike a balance between While S.B. 480 began as a narrow In 1999, the Legislature passed uniformity in application of the law piece of legislation addressing an into law Section 29.012 of the and judicial effi ciency. They can be opinion from the 3rd Court of Government Code. Titled “Sitting for used in any kind of criminal or civil Appeals (Austin), by the end of Disqualifi ed or Recused Judge,” it case in which a municipal court has session it became a conglomerate of provides that when a municipal judge jurisdiction. three important pieces of legislation is disqualifi ed or recused, a judge relating to municipal courts. from another municipal court located Section 29.051 (DEFINITIONS). It is in an adjacent municipality may sit critical that judges, court personnel, Section by Section Analysis: for that judge. Under this provision, and litigants know the defi nitions of however, a municipal judge may “active judge,” “presiding judge,” Sections 1 and 4: Jurisdiction of not sit in a case for another judge if and “regional presiding judge” the Court of Appeals in Regard either party objects in writing before located in this section. Failure to to Cases Beginning in Municipal the fi rst pre-trial hearing or trial distinguish between the three various Courts of Record over which the judge is to preside. judges defi ned in the section is a Critics claimed that Section 29.012 sure-fi re recipe for confusion when Section 1 amends Article 4.03 of the left too many important questions attempting to properly apply the Code of Criminal Procedure relating unanswered and that its gross lack provisions in Subchapter A-1 of to the jurisdiction of the courts of of procedures is inconsistent with Chapter 29. A “presiding judge” appeal. Section 4 amends Subsection procedures used in other Texas trial refers to the presiding judge of the (a) of Section 30.00027 of the courts. See, Ana M. Otero and Ryan municipal court. Chapter 29 of Government Code which deals with Kellus Turner, “Removal of Judges the Government Code contains a cases originating in a municipal court from Texas Cases: Distinguishing cacophony of various municipal judge of record and allows an appeal only Disqualifi cation and Recusal,” The titles. This bill assumes that in courts if the fi ne imposed in the municipal Recorder (July 2010). with more than one municipal judge, court exceeds $100. The 3rd Court of that one is designated as “presiding Appeals held in Alexander v. State, Last summer the Texas Municipal judge.” The term “regional presiding 240 S.W.3d 75 (Tex. App.—Austin Courts Association passed a judge” refers to one of nine presiding 2007) that because of the plain resolution requesting that Section judges of the administrative judicial language of the previously referenced 29.012 of the Government Code be regions who are appointed by the statutes, it had no jurisdiction to amended in a manner that resolves Governor. (For more information consider a constitutional challenge to a perceived confl ict in law. In 2011, and to ascertain who is the regional either an ordinance or state law when the Texas Judicial Council passed a presiding judge for your part of the the fi ne did not exceed $100 and the similar resolution. state, go to: http://www.courts.state. case began in a municipal court of tx.us/courts/ajr.asp.) record. The Chair of House Criminal Jurisprudence, Pete Gallego (Alpine), As you read the following sections, do The Court of Appeals in Alexander fi led the bill in the house (H.B. not confuse the presiding judge with invited the Legislature to revisit 3475). To increase chances of the regional presiding judge. and amend the applicable statutes. passage, the bill was attached in the

Page 6 The Recorder August 2011 Section 29.052 (MOTION active judge to hear the motion.) At this step in the procedure, in a FOR RECUSAL OR manner similar to Texas Rule of DISQUALIFICATION). A party • A municipal judge, with or without a Civil Procedure 18A, the matter in a municipal court or municipal motion, may enter an order of recusal and decision-making process is court of record may fi le a sworn or disqualifi cation. If the municipal completely removed from the sphere motion with the clerk of the court judge is not the presiding judge, the of the local trial court and municipal judge shall ask the presiding judge to stating the grounds for the recusal government. assign another municipal judge to hear or disqualifi cation of a judge. the case. The motion must state the alleged Section 29.057 (PROCEDURES grounds for recusal with particularity • If the recusing judge is the presiding FOLLOWING GRANTING OF and be based upon either the judge for the municipality, or the only MOTION). If after a hearing per personal knowledge of the affi ant judge in the municipality, then the Section 29.056, the motion is denied, or based upon specifi cally stated judge shall ask the regional presiding the case resumes before the municipal grounds for belief in the truth of the judge to assign a judge from another judge who was the subject of the allegations. A motion for recusal or municipality in the same county. recusal/disqualifi cation challenge. disqualifi cation must be fi led at least If the motion is granted, the judge 10 days before the date of a hearing • If a judge recuses himself or herself, who heard the motion shall enter an or trial, except that if a judge is then the judge must take no further order. Unless the motion was against action in the proceeding after assigned to the case less than 10 days the presiding judge, the presiding requesting assignment of a replacement before the hearing or trial, then the judge. If a judge does not voluntarily judge shall assign any other judge motion must be fi led at the earliest recuse himself or herself, then the of the municipality. If the motion practicable time. judge shall take no further action in the was against the presiding judge, the case until a recusal hearing is held. The regional presiding judge shall select Section 29.053 (NOTICE). Copies only exceptions are for actions taken another judge of the municipality to of the motion must be served on all for good causes that are specifi cally hear the case. If the municipality has other parties or their counsel, along stated in the order for the action. What no other municipal judge, the regional with a notice that the movant expects constitutes a good cause is not defi ned, presiding judge shall assign another the motion to be heard three days but actions following recusal or a municipal judge from the same motion for recusal should be reserved after fi ling, unless there is a ruling county. If there are no other municipal for situations requiring a compelling otherwise. necessity of immediate action. Any judges in the county, or if all of the action taken following a motion for the other municipal judges are recused/ Section 29.054 (STATEMENT recusal of a judge is subject to charges disqualifi ed or otherwise unavailable, OPPOSING OR CONCURRING of improper conduct, and any action then the regional presiding may WITH MOTION). Parties may fi le taken following the disqualifi cation of assign a municipal judge from an statements with the clerk of the court a judge is also legally invalid. adjacent county. that oppose or concur with the motion for recusal at any time prior to the Section 29.056 (HEARING ON Section 29.058 (APPEAL). After motion being heard. MOTION). A regional presiding a municipal court of record has judge who receives a request for rendered a fi nal judgment, a party Section 29.055 (PROCEDURE the assignment of a judge to hear a may appeal an order that denies a FOLLOWING FILING OF A motion to recuse or disqualify shall motion for recusal or disqualifi cation MOTION; RECUSAL OR MOTION (1) immediately set a hearing before as an abuse of discretion. A party WITHOUT MOTION). Upon himself or herself, an “active judge” may not, however, appeal an order receiving a motion for recusal or (i.e., either a district or statutory that grants a motion for recusal or disqualifi cation, a municipal judge county judge), or a judge eligible for disqualifi cation. shall either immediately recuse assignment under Section 74.055 of himself or herself or request that the the Government Code; (2) give notice Section 29.059 (CONTEMPT). If regional presiding judge assign a to the parties; and (3) enter necessary a party fi les a motion to recuse or judge to hear the motion. (The judge interim orders. The judge who hears disqualify under this subchapter who is the subject of a timely motion the matter may also consider any and it is determined by the judge does not have the option of either amended or supplemented motion. (i.e., a regional presiding judge, an denying or ignoring the motion. The If there is no objection, the hearing active judge, or judge eligible for only option is to grant the motion may be conducted by telephone. (This assignment under Section 74.055 of or refer the matter to the regional is intended to expedite matters and the Government Code) hearing the presiding judge who can assign an reduce costs.) motion, at the hearing and on motion

Page 7 The Recorder August 201 of the opposing party, that the motion for maintaining the records of the servants no longer serve in such to recuse or disqualify is brought municipality's governing body to capacity. solely for the purpose of delay and notify the Texas Judicial Council without suffi cient cause, the judge of the name of each person who It is particularly important that the may in the interest of justice fi nd the is elected or appointed as mayor, State of Texas have a complete and party fi ling the motion in contempt municipal judge, or clerk of a accurate list of municipal judges, under Section 21.002(c) of the municipal court and each person especially in light of the other Government Code (i.e., three days in who vacates any such offi ce. The provisions in S.B. 480 relating to the jail and/or a fi ne not to exceed $100). amendment requires the secretary authority of the regional presiding or employee to notify the council judges to appoint municipal judges Section 29.060 (COMPENSATION). not later than the 30th day after in certain instances relating to This section states that an active the date of the person's election or disqualifi cation and recusal. judge who is assigned to hear a appointment to offi ce or vacancy motion to recuse or disqualify a from offi ce. The Texas Judicial Council has the municipal judge is not entitled to authority per Section 71.035 of the additional compensation other than Commentary: While state law Government Code to request that travel expenses, and it entitles a judge requires that certain general law the Offi ce of the Attorney General assigned to hear such a motion who is municipalities provide the name of enforce statutorily mandated not an active judge to compensation its mayor, municipal judge, and clerk reporting of pertinent information by of travel expenses and $450 per day to the Texas Judicial Council, there means of mandamus. of service, prorated for any day for is no general requirement that all which the judge provides less than a Texas municipalities provide such Subject: Time to File Motion for full day of service. The amendment information. Consequently, the State New Trial entitles a municipal judge assigned of Texas has no way of knowing S.B. 519 to hear a case on the recusal or the identity of individuals acting as Effective: September 1, 2011 disqualifi cation of a municipal judge either a judge or clerk in its municipal in a court other than the one in which courts. (The identity of mayors is Under current law, a defendant who the assigned judge resides or serves also important because under Texas is convicted in a municipal court as compensation provided by law law they are authorized to act as (excluding a municipal court of for judges in similar cases and travel magistrates.) Not only should the record) or a justice court of a criminal expenses. The amendment requires identities of individuals acting in such offense has but a single day in which the municipality in which a municipal capacities be available to the public, it to fi le a motion for a new trial. This judge recusal or disqualifi cation case is important that state agencies, such contrasts with the fi ve days permitted is pending to pay the compensation as the Offi ce of Court Administration for civil petitions in justice court or and travel expenses due or incurred and State Commission on Judicial the 30 days granted to defendants in under statutory provisions relating Conduct have up-to-date information other criminal courts. to the recusal or disqualifi cation of as to the identity of such individuals. municipal judges. Similarly, such information is Amending Article 45.037 of the Code important to ensure that municipal of Criminal Procedure, S.B. 519 Section 3: Mandatory and judges comply with the Rules of provides some uniformity to the court Timely Reporting of Certain City Judicial Education promulgated by process by extending the window Offi cials to the Offi ce of Court the Court of Criminal Appeals. The for fi ling a motion for new trial from Administration lack of an offi cial and public registry one to fi ve days following rendition makes it easier for perpetrators to of judgment. The change will be This amendment repeals Section impersonate public servants and can effective with judgments entered after 22.073(c) of the Local Government result in the improper expenditure of September 1, 2011. Code (relating to the powers Judicial Court and Personnel Training and duties of the secretary of a Funds. This amendment makes According to the Offi ce of Court municipality) and replaces it with the provisions currently applicable Administration (OCA), the change Section 29.013 of the Government only to Type A aldermanic general will result in an increase in the Code. The amendment requires law municipalities applicable to all number of motions for new trials the secretary of the municipality municipalities that have a municipal fi led in justice and municipal courts, in a municipality with a municipal court. It improves upon existing law but the increase is not expected to court, including a municipal court of by also requiring that the State of appreciably increase the workload record, or the employee responsible Texas be informed when such public of these courts. No signifi cant fi scal

Page 8 The Recorder August 2011 impact is anticipated. (The Capias); (3) a subpoena under commonly accepted as a means to Chapter 20 (Duties and Powers of reduce erroneous identifi cations and Subject: Execution of Lawful the Grand Jury) or 24 (Subpoena and enhance the objectivity and reliability Process by County Jailers Attachment); or (4) an attachment of eyewitness identifi cations. S.B. 604 under Chapter 20 or 24. Effective: September 1, 2011 Subject: Disqualifi cation of a — Medium Priority — District or County Attorney Who is Currently, the only individuals Under Investigation authorized to serve or execute H.B. 1638 subpoenas, attachments, and warrants Subject: Photograph and Live Effective: September 1, 2011 are peace offi cers. Occasionally, Lineup Identifi cation Procedures in it is necessary to serve or execute Criminal Cases H.B. 1638 amends Article 2.08 of various types of process, writs, H.B. 215 the Code of Criminal Procedure. A subpoenas, and attachments on Effective: September 1, 2011 district or county attorney shall be individuals confi ned to a detention disqualifi ed from representing the facility. For example, an inmate may Mistaken eyewitness identifi cation State if the district or county attorney be detained in jail when additional is the leading cause of wrongful is the subject of an offi cial criminal charges are brought against him or convictions in Texas and the United investigation. Currently, there is no her. The common practice is that States. H.B. 215 adds Article 38.20 statutory means to prosecute a district a new warrant with its own bond to the Code of Criminal Procedure or county attorney for a criminal will be issued and must be served with the purpose of improving the act committed within the district on the inmate for the new, alleged accuracy and reliability of eyewitness or county attorney’s jurisdiction. offense. Presently, only deputies may identifi cation. This bill would address cases execute these warrants. When service within a district or county attorney’s is required, it is necessary to call a H.B. 215 requires all Texas law jurisdiction and would not impact deputy in from the fi eld (or his or enforcement agencies to adopt written criminal allegations in another district her area of patrol or primary duty) eyewitness identifi cation policies attorney’s jurisdictions. A disqualifi er to perform the ministerial duty of based on best practices (i.e., proven under this bill applies only to the serving or delivering the warrant on effective by scientifi c research) attorney’s access to the criminal the inmate. by September 1, 2012. This bill investigation pending against the requires the Bill Blackwood Law attorney and to any prosecution of a S.B. 604 amends current law relating Enforcement Management Institute criminal charge resulting from that to the execution of lawful process by of Texas to develop and disseminate investigation. county jailers by adding Article 2.31 a model policy and training materials to the Code of Criminal Procedure. regarding eyewitness identifi cation to Subject: Video Teleconferencing in Article 2.31 authorizes a jailer who local law enforcement agencies. Certain Criminal Proceedings has successfully completed a training H.B. 2847 program provided by the sheriff Eyewitness identifi cation procedures Date Effective: September 1, 2011 and is licensed under Chapter 1701 must address the following topics: (Law Enforcement Offi cers) of the (1) the selection of photograph and Commentary: This legislation Occupations Code. It authorizes live lineup fi ller photographs or amends Article 102.017(d-1) of jailers to execute lawful process participants; (2) instructions that the Code of Criminal Procedure to issued to the jailer by any magistrate will be given to a witness before expressly authorize the purchase or court on a person confi ned in the conducting a photograph or live of video teleconferencing systems jail at which the jailer is employed lineup identifi cation procedure; (3) out of court costs deposited into a to the same extent that a peace documentation and preservation of courthouse security fund, municipal offi cer is authorized to execute lineup procedures; (4) procedures court building fund, or a justice court process under Article 2.13(b)(2) for administering lineups to illiterate building fund. As a cost-saving and (relating to requiring the offi cer to persons or persons with limited security measure, the Legislature execute all lawful process issued English profi ciency; (5) procedures greatly enhanced the use of video to the offi cer by any magistrate or for assigning a lineup administrator technology in grand jury and trial court), including: (1) a warrant under who is unaware of the suspect in a proceedings through the addition of Chapter 15 (Arrest Under Warrant), lineup or photo array; and (6) any several provisions to the Code of 17 (Bail), or 18 (Search Warrants); other procedures or best practices Criminal Procedure. While the bulk (2) a capias under Chapter 17 or 23 supported by credible research or of this bill is aimed at grand jury Page 9 The Recorder August 201 proceedings, municipal and justice a teleconferencing system that can The bill also sets forth accountability courts that have ample security provide local governments long term procedures, including audits, designed funds indirectly benefi t from this costs savings and allow municipal to ensure the appropriate handling legislation. judges and justices of the peace more and use of seized assets. The Offi ce effi cient use of their time. of the Attorney General is authorized Last summer, TMCEC published an to seek injunctive relief and/or civil article pertaining to the frequently Subject: Asset Forfeiture in penalties not to exceed $100,000 per occurring, yet seldom written- Criminal Cases violation of Article 59.06. about dynamics surrounding the S.B. 316 taking of jail house pleas in Class Effective: September 1, 2011 Detailed reporting requirements C misdemeanors (see, Ryan Kellus concerning the use of forfeiture Turner, Jail House Pleas: Is Rothgery Commentary: In response to reports funds and an auditing process are a Tap on the Shoulder or a ‘Fly in of abuse of asset forfeiture provisions also added to the Code. The new the Ointment’ of Local Trial Court when property is seized in connection regulations will be effective on assets Expediency, The Recorder (August with a controlled substance offense, seized and expenditures made after 2010)). This article postulated that the Legislature has provided stricter the act becomes effective September Article 27.18 of the Code of Criminal guidelines for the use of funds 1, 2011. Procedure was not intended for Class obtained through forfeiture actions C misdemeanors (because of the and added language to close a Subject: Entering Pleas in Certain absence of prosecutor and defense loophole regarding the forfeiture Criminal Cases consent) and observed that absent process. S.B. 1522 an amendment by the Legislature, it Effective: September 1, 2011 did not authorize municipal judges Current language prohibits a peace to take pleas from behind bars via offi cer from obtaining a waiver of Currently, under Article 27.19 (Plea closed circuit video teleconferencing. interest in seized property at the scene by Certain Defendants) of the Code H.B. 2847 also does not authorize of a roadside stop. However, the of Criminal Procedure, a court is municipal and justice courts to take language is inapplicable to attorneys required to accept a plea of guilty or pleas via video conferencing. In fact, representing the State. S.B. 316 nolo contendere from a defendant H.B. 2874 amends Article 27.18 to amends Article 59.03 of the Code of who is confi ned in a penal institution now make the defendant’s appearance Criminal Procedure extending the if the plea is made in accordance over a video system merely part of prohibition against obtaining a waiver with the procedures established the court reporter’s record and not of property interest prior to the fi ling by Article 27.18 (Plea or Waiver something that must be recorded. of a civil forfeiture action to such of Rights by Closed Circuit Video attorneys. Notably, under Article Teleconferencing) or in writing. S.B. So, barring future legislation 59.01 “attorney representing the 1522 expands this section to include authorizing the taking of pleas State” includes city attorneys acting accepting a plea if it is delivered by on Class C misdemeanors via in a forfeiture procedure. U.S. Mail or secure electronic or teleconferencing, what utility, if any, facsimile transmission. does H.B. 2847 have on municipal Subsections added to Article 59.06 and justice courts? Probably the best of the Code of Criminal Procedure Commentary: Some have asserted answer is found in Code of Criminal provide guidance on permissible that Article 27.19, in conjunction Procedure Article 15.17(a) (Duties uses for forfeited property and with Article 27.18, provides a of Arresting Offi cer and Magistrate) procedures for the disposition of such statutory framework that can be and Article 45.046(c) (Commitment). property. Under the new provisions, construed to authorize the taking Article 15.17(a) clearly contemplates 40 percent is to be allocated to the of pleas in Class C misdemeanors the use of an electronic broadcast seizing department, 30 percent to the via video teleconferencing (see, system in lieu of taking an arrested prosecuting attorney’s offi ce, and 30 TMCEC Commentary for H.B. 2847). person before a magistrate. Similarly, percent to the general revenue fund. However, newly added references Article 45.046 contemplates the A list of prohibited uses is added to to “indictment or information”— use of an electronic broadcast the article and includes: donations without any reference to a Class C system for conducting the required and political contributions, training misdemeanor charging instrument commitment hearing following arrest and travel expenses, the purchase of (“complaint”)—only further on a capias pro fi ne. With rising gas alcoholic beverages, and payment undermine such an assertion. prices and budget restraints, H.B. of salaries for prosecutorial or law 2847 may provide a way to pay for enforcement employees.

Page 10 The Recorder August 2011 Comparisons of Deferred Options

Effective September 1, 2011 Driving Safety Course (DSC) or Motorcycle Suspension of Sentence and Deferral of Operator Course (MOC) Dismissal Procedures, Final Disposition, Article 45.051, C.C.P. Article 45.0511, C.C.P. If defendant is at least 25 years of age, applies to the following traffi c Applies to all fi ne-only offenses except: offenses: • Traffi c offenses committed in a construction work • Section 472.022, T.C.; (Obeying Warning Signs) maintenance zone when workers present (Sec. • Subtitle C, Title 7, T.C.; (Rules of the Road) 542.404, T.C.; Art. 45.051(f)(1), C.C.P.); or • Section 729.001(a)(3), T.C. (Operation of Motor Vehicle by Minor) • A violation of a state law or local ordinance relating to If defendant is under 25, applies to offenses classifi ed as moving violations motor vehicle control, other than a parking violation, committed by a person who holds a commercial Does not apply to: driver’s license; or held a commercial driver’s license • Offenses committed in a construction work maintenance zone when when offense committed (Art. 45.051(f), C.C.P.). Application/Use workers are present, Sec. 542.404, T.C.; Art. 45.0511(p)(3), C.C.P.; • Traffi c offenses committed by a person with a commercial driver’s license, Art. 45.0511(s), C.C.P.; • Passing a school bus, Sec. 545.066, T.C.; • Leaving the scene of an accident, Sec. 550.022 or 550.023, T.C.; or • Speeding 25 mph or more over the limit or in excess of 95 m.p.h. Art. 45.0511(b)(5), C.C.P. Court must advise person charged with offenses under Subtitle C, Rules of the Road, T.C., of right to take course. Defendant may request if the defendant has not had a driving safety course Subject to judicial discretion. within the 12 months preceding the date of the current offense. Under Subsection (u), defendants may take DSC for a violation of Child Passenger Safety Seat laws even if they have taken DSC in the last 12 months, as long as the judge requires the defendant to take a specialized DSC (including 4 hours of instruction on child passenger safety seat systems) and any course the defendant has taken in the last 12 months did How Often not include such instruction. If the defendant is a member, spouse, or dependent child of a member, of the US military forces serving on active duty, the defendant cannot have taken a DSC/MOC in another state within the 12 months preceding the date of the current offense. Under Subsection (d), the court has discretion to grant DSC/MOC even if one has been taken within the previous 12 month period, or if the request was not made timely. A plea of guilty or nolo contendere is required when the request is made. A plea of guilty or nolo contendere or a fi nding of guilt Plea Required Request must be made on or before answer date on citation. Judge has required. discretion to grant a late request under Subsection (d). Proof of TX DL Defendant must have a Texas driver’s license or permit. If the defendant NO or on Active is on active military duty or is an active duty military spouse or dependant child, the defendant does not have to have a Texas driver’s license or permit. Military Duty Proof of Defendants are required to present proof of fi nancial responsibility as NO Financial required by Chapter 601, Transportation Code Responsibility YES YES State Court Due when request made. Judge may allow defendant to pay out during deferral Cost Collected period by time payments, performing community service, or both. Court defers imposition of the judgment for 90 days. The defendant must Not to exceed 180 days. take the course and present evidence of completion by the 90th day. (1 to 180 days) Defendant is also required to present to the court a certifi ed copy of his or her driving record as maintained by DPS and an affi davit stating that he Time Limit or she was not taking DSC or MOC at the time of the request nor has he or she taken a course that is not on his or her driving record. Under Subsection (u), the defendant’s driving record and affi davit are required to show that defendant did not have specialized DSC in preceding 12 months. If defendant makes request on or before answer date, the court may only SPECIAL EXPENSE FEE (SEF), not to exceed amount Optional assess an administrative $10 non-refundable fee. of fi ne that could be imposed at the time the court grants Administrative the deferral. Court may elect not to collect for good cause If the judge grants a course before the fi nal disposition of the case under shown. SEF may be collected at anytime before the date or Special Subsection (d), the court may assess a fee not to exceed the maximum the probation ends. In the event of default, the judge shall Expense Fee possible penalty for the offense. require that the amount of the SEF be credited toward the amount of the fi ne imposed by the judge. Page 11 The Recorder August 201 Comparisons of Deferred Options continued Effective September 1, 2011

Driving Safety Course (DSC) or Motorcycle Suspension of Sentence and Deferral of Final Disposition, Operator Course (MOC) Dismissal Procedures, Article 45.051, C.C.P. Article 45.0511, C.C.P.

Rather than allowing the defendant to obtain his or her driving Court is not required to order the defendant to obtain a driving record Fee record and provide it to the court, the court may obtain the (it may, however, be mandated as a reasonable condition). There is no for Driving certifi ed driving record from DPS. A $10 fee plus the $2 state authorization for the court to collect a fee for obtaining the defendant’s electronic Internet portal fee may be imposed if the court driving record. Record chooses this option (Art. 45.0511 (c-1), C.C.P.).

Request may be oral or in writing. If mailed, request must be Requirements: Judge may require the defendant to do the following: sent certifi ed mail. (Art. 45.0511(b)(3), C.C.P.) When a defendant requests a course on or before the answer date 1. Post bond in the amount of the fi ne assessed to secure payment of on the citation, the defendant must present evidence of a valid the fi ne; Texas driver’s license or permit, or show that he or she is on 2. Pay restitution to the victim of the offense in an amount not to active military duty. exceed the fi ne assessed; 3. Submit to professional counseling; On or before the 90th day after the request the defendant must 4. Submit to diagnostic testing for alcohol or controlled substance or present: drug; 5. Submit to psychosocial assessment; 1. Evidence of course completion; 6. Participate in an alcohol or drug abuse treatment or education 2. A copy of his or her driving record as maintained by program; DPS, if any; 7. Pay the costs of any diagnostic testing, psychosocial assessment, or 3 If the defendant is on active military duty and does not have participation in a treatment or education program either directly or a Texas driver’s license, the affi davit must state that the through the court as court costs; defendant was not taking a DSC or MOC, as appropriate, 8. Complete DSC or other course as directed by the judge; in another state on the date of the request to take the course 9. Present to the court satisfactory evidence of compliance with the Other was made and had not completed such a course within the terms imposed by the judge; and 12 months preceding the date of the offense. 10. Comply with any other reasonable condition. Requirements 4. An affi davit stating that he or she was not taking a course at the time of request for the current offense nor had he or she ------taken a course that was not yet on his or her driving record If defendant under age 25 is charged with a moving traffi c offense, within the 12 months preceding the date of the current Subsection (b)(8) does not apply. The judge shall require DSC. The offense. judge may also require an additional DSC for drivers under age 25 per 5. If the offense is charged under Section 545.412, T.C., (Child Sec. 1001.111, Education Code. If the defendant holds a provisional Passenger Safety Seat Systems), the defendant’s driving license, the judge shall require the defendant to be examined by DPS record and affi davit are only required to show that they have under Sec. 521.161(b)(2), T.C., and pay DPS a $10 fee. not taken the specialized DSC in the last 12 months. For Alcoholic Beverage Code Offenses and the offense of Public The judge may also require an additional DSC for drivers under Intoxication (Sec. 49.02(e), P.C., defendant under the age of 21), court age 25 per Sec. 1001.11, Education Code. must require an alcohol awareness course. Sec. 106.115(a), A.B.C. For Alcoholic Beverage Code offenses, except DUI, and the offense of Public Intoxication (Sec. 49.02(e), P.C., defendant under the age of 21), court must require community service. Sec. 106.071(d), A.B.C. 1st offense: eight to 12 hours. 2nd offense: 20 to 40 hours.

Judge shall remove the judgment and dismiss the case; the Judge shall dismiss and note in docket that complaint is dismissed. Satisfactory dismissal must be noted in the docket. Court reports the (Only report to DPS the order of deferred for Alcoholic Beverage Code Completion completion date of the course after the court dismisses the case. offenses.)

If defendant fails to furnish the evidence of course completion, If defendant fails to comply with terms of the deferral, the court shall a copy of his or her driving record as maintained by DPS that set a show cause hearing and notify the person by mail at the address on shows that he or she had not taken DSC or MOC within the 12 fi le. At the hearing the judge may, on a showing of good cause, allow months preceding the date of offense, and the affi davit, the court an additional period during which the defendant may present evidence shall set a show cause hearing and notify the person by mail. At of compliance with requirements. If at the show cause hearing or by the hearing the judge may, on a showing of good cause, allow the conclusion of the additional period the defendant does not present Failure to the defendant time to present the uniform certifi cate of course satisfactory evidence of compliance, the judge may enter judgment and completion. If the court does not grant more time, the court impose the fi ne. The judge may reduce fi ne previously assessed if the Complete shall enter a fi nal judgment ordering the defendant to pay the defendant is at least 25 years of age or older and not charged with a fi ne. traffi c offense. If the offense is a traffi c offense, the court must report the If a defendant fails to appear at the show cause hearing, the court traffi c conviction to DPS. may, after signing a fi nal judgment, issue a capias pro fi ne. If a defendant fails to appear at the show cause hearing, the court may, after signing a fi nal judgment, issue a capias pro fi ne.

The entering of the fi nal judgment triggers the requirements for The entering of the fi nal judgment triggers the requirements for making a Appeal making a timely appeal (Arts. 45.042-45.043, C.C.P.). timely appeal (Arts. 45.042-45.043, C.C.P.).

Page 12 The Recorder August 2011 MAGISTRATES ISSUES AND DOMESTIC VIOLENCE

— High Priority — shall be implemented) to addressing broadcast raise many questions. the overlapping (and consequently, For example, what effect, if any, Subject: Operation and confusing) jurisdiction between some does this amendment have on the Administration of and Practice and district and county courts at law. “four corners” rule (providing that a Procedures in Courts magistrate is to determine probable H.B. 79 (1st Special Session) The bill also authorizes the Offi ce cause solely from the content of Effective: Generally, January 1, of Court Administration to provide the sworn affi davit and not from 2012 grants to counties for initiatives any other source)? While the plain to enhance court systems via a language of this bill appears to Beginning in the latter half of the Judicial Committee for Additional merely allow the electronic broadcast 20th Century, the Texas Legislature Resources and the Permanent Judicial to substitute for an actual physical began creating quasi-judicial Committee for Children, Youth, and appearance before the magistrate, positions with varying names (e.g., Families. what legal implications arise when criminal law hearing offi cers, a magistrate, after reviewing an masters, referees, and magistrates in Subject: Requesting a Warrant or affi davit, asks a question to the certain counties who often serve at Summons by Electronic Broadcast requesting peace offi cer? Would the pleasure of the district judges). System it constitute an impermissible The menagerie of these titles has long H.B. 976 supplementation? What happens if the caused confusion within the judiciary, Effective: June 17, 2011 electronic broadcast is lost? Criminal among local governments, scholars, defense lawyers are certain to raise and attorneys. H.B. 976 amends Article 15.03 of these questions. Until appellate courts the Code of Criminal Procedure have an opportunity to answer them, Municipal judges and justices of by adding Subsections (c), (d), magistrates who utilize electronic the peace, like all judges in Texas, (e), and (f), authorizing the use of broadcast systems should conform are “magistrates” as defi ned in the technology to more quickly obtain their conduct in anticipation of Code of Criminal Procedure. Unlike an arrest warrant or summons by possible new scrutiny. “magistrates” under Chapter 54 of the enabling a person to appear before Government Code, however, they are and communicate with a magistrate Subject: Protective Orders for not quasi-judicial offi cers, employees through an electronic broadcast Stalking Victims and Admissibility at will, or subordinates of judges from system. The bill requires that a of Hearsay Statements by Children other courts. recording of the appearance be in Applications for Protective preserved until the defendant is either Orders A portion of this bill attempts to acquitted of the offense or all appeals H.B. 1721 quell related confusion by purging relating to the offense have been Effective: September 1, 2011 the hodgepodge of titles used in exhausted. Chapter 54. Specifi cally, the bill H.B. 1721 provides stalking victims repeals most of the provisions of Commentary: In 2009, H.B. 1060 and child victims the same protection Chapter 54 of the Government Code authorized an arrest warrant or as family violence victims. The bill related to “masters,” “magistrates,” a probable cause affi davit to be adds provisions to Chapters 6 and 7 and “referees” and creates a new forwarded by any method that ensures of the Code of Criminal Procedure Chapter 54A with uniform provisions the transmission of a duplicate of the to facilitate protection of children for different types of “associate original warrant, including secure and other victims of family violence. judges.” Despite its broad caption, facsimile or other secure electronic Chapter 7A of the Code, governing the majority of this bill which was device. This bill continues the gradual victims of sexual assault, is amended passed in special session pertains move of the Code of Criminal through the addition of Article predominantly to courts with civil Procedure into the digital age. 7A.035, which specifi cally permits a jurisdiction. Topics addressed range hearsay statement by a victim under from the abolition of small claims While the language of this 14 to be admissible in an application courts (such cases will be transferred amendment is clear and concise, hearing for a protective order if the to justice courts where local rules the implications of requesting a hearsay statement describes the and increased training standards warrant or summons by electronic offense against the child.

Page 13 The Recorder August 201 The bill also extends the protective stops conducting business. Although H.B. 1829 amends Section 573.012 of authority of the court by adding an attorney general's opinion the Health and Safety Code to allow Article 6.09 which grants individuals concluded that a bail bonds board an applicant who is a physician to the right to request a protective had the authority to enact local rules present an application for emergency order if they are a victim of stalking, governing a partial release of security, detention by e-mail with certain as that offense is defi ned under according to interested parties (i.e., specifi cations, and allows a judge Section 42.072 of the Penal Code. bail bondsmen), such boards across or magistrate to transmit a warrant The procedure used for requesting Texas have not been uniform in electronically or by e-mail with a protective order under this section recognizing this right, setting up certain specifi cations to an applicant is described in Title 4 of the Family local rules authorizing the right, or who is a physician. Code. This new section also contains establishing procedures for the release language stating that this procedure of partial security. Commentary: Similar to H.B. 976, is intended to be applied to the fullest relating to requests for summons and extent practicable. This should be Subject: Authority of Persons to arrest warrants, this bill attempts to interpreted to mean that all of the Execute Bail Bonds further use technology to enhance associated procedures, requirements, H.B. 1823 effi ciency, specifi cally by allowing processes, limitations, and exclusions Effective: September 1, 2011 applicants to make request for mental intended to apply to the Family health warrants by e-mail using Code are equally applicable here H.B. 1823 changes the authority of attachments in portable document and should prevail over confl icting certain persons to execute bail bonds format (PDF). The PDF fi le format, provisions. and act as sureties under Chapter created in 1993 by Adobe Systems, 17 (Bail) of the Code of Criminal began as a proprietary format. The Commentary: While this bill marks Procedure, in order to harmonize format became so ubiquitous and important changes to procedures provisions of that law with related accepted as a standard that Adobe relating to family violence and courts provisions under the Occupations allowed the fi le format to become that issue protective orders, it does Code. open format in 2008. not relate to a magistrate’s order of emergency protection issued pursuant Article 17.07 currently requires a Subject: Execution of a Search to Article 17.292 of the Code of corporation to fi le a power of attorney Warrant for Data Contained in or Criminal Procedure. designating the agents who are on Certain Electronic Devices authorized to act on its behalf before H.B. 1891 Subject: Withdrawal of Security by it may serve as a surety. The bill adds Effective: September 1, 2011 Bail Bondsmen a provision that permits the power of H.B. 1822 attorney to contain restrictions on the H.B. 1891 amends Article 18.07 of Effective: September 1, 2011 scope of the authority conveyed to the the Code of Criminal Procedure by agent. adding Subsection (c) relating to H.B. 1822 amends Section 1704.210 the execution of a search warrant of the Occupations Code relating to Article 17.10 outlines which for data or information contained in the withdrawal of security by a bail individuals are disqualifi ed from or on a computer, disk drive, fl ash bond surety. It authorizes a partial acting as a surety for a bail bond. This drive, cell phone, or other electronic, release of security when the amount section is amended by adding the communication, or data storage of security remaining would meet limitation that persons convicted of device. certain requirements. felonies and misdemeanors involving moral turpitude may not receive Law enforcement generally has only In counties where bail bonds business compensation for acting as a surety. three days to execute a certain type of is regulated under the Occupations These individuals may still provide search warrant signed by a magistrate. Code, an individual or an insurance bond for personal interests—just not In cases that rely on digital evidence, company may obtain a license to for a profi t. such as child pornography, offi cers write bail bonds. Each license holder usually seize computers when may be required to place a security Subject: Physician Request for executing a search warrant. In such deposit with the county and then Emergency Detention Warrant by cases, it can take weeks, or even write bonds on a prescribed ratio to E-Mail months, to fully analyze a computer the value of that security deposit. H.B. 1829 or electronic storage device that has The release of this security can Effective: September 1, 2011 been seized for collection of the become an issue when an individual contraband evidence. H.B. 1891 Page 14 The Recorder August 2011 provides law enforcement additional relating to family violence and courts timely get a warrant for, the principal time to search for digital evidence that issue protective orders, it does before he or she is released from that is stored on a computer or other not relate to a magistrate’s order of other jurisdictions. The purpose of electronic storage device that has emergency protection issued pursuant S.B. 877 is to address these concerns been lawfully seized within the three to Article 17.292 of the Code of and to ensure that Article 17.16 is days as a result of a search warrant. Criminal Procedure. being applied and uniformly followed across Texas. S.B. 877 amends Subject: Protective Orders in Subject: Inclusion of Pets in current law relating to a verifi cation Family Violence Cases Protective Orders of the incarceration of an accused S.B. 116 S.B. 279 person in a criminal case for the Effective: June 17, 2011 Effective: September 1, 2011 purpose of discharging a surety's liability on a bail bond. S.B. 116 allows third parties to apply S.B. 279, amending Section 85.021 for a protective order against their of the Family Code, allows a judge Commentary: When an individual current or former signifi cant other's to prohibit a person from removing a is released on bond, the bond ex-partner. The bill also allows third pet, companion animal, or assistance supersedes a commitment order. Until parties to apply for a protective animal from the possession of a now, there has been no mechanism order against their current or former party protected by a protective order. for reinstating the grounds of initial signifi cant other's family or household Moreover, the judge can prohibit a detention when an individual is members. person from harming, threatening, or later arrested for another offense interfering with the care, custody, or and sureties want to surrender the The principal changes made by the control of a pet or assistance animal principal. S.B. 877 provides such a bill expand the scope of Section belonging to a person protected by a procedure, notice requirements, and is 71.0021 of the Family Code (Dating protective order. intended to expedite the discharge of Violence) to make it applicable to liability among sureties. victims who were targeted because Commentary: While this bill marks of their partner’s current or former important changes to procedures Subject: Probation Revocation relationship with the actor as well relating to family violence and courts Warnings by Magistrates as victims who were targeted due to that issue protective orders, it does S.B. 1681 their prior relationship with the actor. not relate to a magistrate’s order of Effective: September 1, 2011 Under the amended and augmented emergency protection issued pursuant language of Section 71.0021, if an to Article 17.292 of the Code of S.B. 1681 amends provisions in the actor commits an offense against a Criminal Procedure. Code of Criminal Procedure relating victim because of the victim’s current to the appointment of counsel and or former relationship with a person Subject: Verifying Incarceration the rights of an accused and other with whom the actor currently or of Defendants for Purpose of requirements for the purposes of formerly had a relationship, then the Discharging a Surety's Liability on appellate proceedings or community offense qualifi es as “dating violence.” a Bail Bond supervision revocation proceedings. S.B. 877 Section 82.002 of the Family Code is Effective: May 19, 2011 The bill clarifi es that the Fair likewise amended to permit a party Defense Act (FDA) applies to to a marriage, as well as a dating Currently in Texas, when a bail bond attorney appointments for probation relationship, to apply for a protective is written to obtain the release of a revocations and appeals. It clarifi es order to protect themself as well defendant from custody, the surety procedures for withdrawal of trial as the victim of an act of family may end its liability on the bond if counsel and appointment of appellate violence. This change recognizes that the principal is rearrested for another counsel. It expressly authorizes any family violence is not merely caused offense, as set out in Article 17.16 magistrate to provide warnings on by spouses of victims. Any adult who of the Code of Criminal Procedure rights to defendants arrested for is currently married to or in a dating (Discharge of Liability; Surrender motions to revoke probation. relationship with the victim of family or Incarceration of Principal Before violence has standing to apply for a Forfeiture). However, this article The FDA requires judges in each protective order on their behalf. is not uniformly followed across county to adopt countywide Texas. Some sheriff's offi ces refuse procedures for appointing attorneys Commentary: While this bill marks to follow it because of the lack of a for indigent defendants arrested important changes to procedures mechanism to place a hold on, or to for or charged with felonies or

Page 15 The Recorder August 201 misdemeanors punishable by Intoxication the requirement that the victim of confi nement. Courts are required S.B. 1787 a sexual assault show evidence of to appoint attorneys from a public Effective: September 1, 2011 a future threat in order to obtain appointment list using a system of a protective order against their rotation, an alternative appointment S.B. 1787 amends Section 724.015 attacker. The bill also eliminates any program, or a public defender. of the Transportation Code to require distinction between adult victims and Currently, some jurisdictions believe that a peace offi cer inform a DWI minor victims. It does not, however, that FDA requirements apply to suspect orally and in writing that the relate to a magistrate’s order of attorney appointments for appeals and offi cer is authorized to apply for a emergency protection issued pursuant probation revocation hearings, while warrant authorizing a specimen to be to Article 17.292 of the Code of others do not. This bill clarifi es that taken from the person if the person Criminal Procedure. these requirements do apply to those refuses to submit to the taking of a proceedings. breath or blood specimen. Subject: Admissibility of Hearsay Statements by Children in Hearings This legislation also requires trial Many incidents of DWI result in for Protective Orders counsel to advise a defendant of the arresting offi cer applying for a H.B. 905 his or her right to fi le a motion for warrant authorizing the taking of a Effective: September 1, 2011 new trial or appeal, and to help the blood or breath specimen from the defendant request appointment of person suspected of committing the Section 104.006 (Hearsay Statement replacement counsel if the defendant offense. Currently, there is doubt as of Child Abuse Victim) of the Family wishes to pursue either remedy, to whether it constitutes coercion for Code provides that statements before being permitted by the court to a police offi cer to inform a person describing alleged abuse made by withdraw representation. that if he or she refuses to submit to a child 12 years of age or younger the taking of a specimen, the police may be admissible under certain An amendment to Article 42.12 of offi cer may apply for a warrant to circumstances in suits affecting the the Code of Criminal Procedure, do so. S.B. 1787 removes this doubt parent-child relationship. which is of importance to municipal by adding to the information that an judges performing magistrate duties, offi cer under those circumstances is H.B. 905 adds a provision to Chapter authorizes any magistrate to give required to provide before requesting 84 of the Family Code allowing required warnings, including about that the person submit to the taking of statements made by a child 12 years the right to counsel, to persons on a specimen. of age or younger that describe motions to revoke probation, while alleged family violence against the not permitting magistrates to release — Medium Priority — child to be admissible whether or not such persons on bail. It requires that the statements would otherwise be the warnings be provided within 48 Subject: Protective Orders for inadmissible as hearsay if the court hours of arrest, as they are when a Victims of Sexual Assault fi nds that the statements are otherwise person is arrested for a new offense. reliable. The bill strengthens H.B. 649 protections for abused children and Effective: September 1, 2011 Current law requires these defendants makes the law regarding testimony to be brought back before the judge of a child in an application for a Under current law, in order for a overseeing their probation, which protective order consistent with the victim of sexual assault or rape to be may result in long delays in rural law in suits affecting the parent-child granted a protective order, the victim parts of the state where judges must relationship. must show evidence of an original sit in multiple counties. Magistrates assault. If the victim is over the age of already provide such warnings if Subject: Bexar County Magistrates 18, the victim must also prove there the arrest is for a new offense and, is the threat of further harm by the H.B. 994 in some areas, they also provide the alleged offender. H.B. 649 amends Effective: May 27, 2011 warnings to probation revocation Articles 7A.03 and 7A.07 of the arrestees. This bill provides the Code of Criminal Procedure allowing Currently, under Chapter 54 of the magistrates clear authority to provide protective orders for victims of sexual Government Code, a Bexar County such warnings. assault without requiring the victim to magistrate may accept only a plea show a threat of further harm by the of guilty for a misdemeanor from Subject: Information Provided by assailant. a defendant charged with both a Peace Offi cer Before Requesting misdemeanor and felony offenses. a Specimen to Determine Commentary: The bill removes This legislation allows all Bexar Page 16 The Recorder August 2011 County magistrates to accept a plea raises an important question: Will to refrain from dating violence. The of guilty or nolo contendere for all Texas appellate courts hold that such program would provide counseling charges. logistical issues that accompany a and referrals and explain the juvenile large population justify additional justice system to teen dating violence Subject: Release on Bond of detention or does it create an victims. If the child successfully Certain Persons Arrested for a impermissible double standard? completes that program, the court Misdemeanor Without a Warrant would dismiss the case with in Certain Counties Subject: Admissibility of prejudice, which means the plaintiff H.B. 1173 Statements by Children in Criminal cannot bring forth the same claim. Effective: September 1, 2011 Proceedings H.B. 2337 After dismissal, the court can impose H.B. 1173 amends Article 17.033 Effective: September 1, 2011 a fee not to exceed $10 to cover of the Code of Criminal Procedure administrative costs of the program by adding Subsection (a-1), which H.B. 2337 amends Section 51.095 to be deposited into the county allows counties with a population of the Family Code to specify the treasury where the court is located. In of three million or more (i.e., Harris admissibility of a statement made addition, the court can require a $10 County) to hold a person arrested by a child. The statement is not fee to cover the cost of the teen dating without a warrant for 36 hours, rather precluded if, and without regard to violence court program operations, than the current 24 hours, before whether the statement stems from but cannot assess a child more than having to be released on bond. If a a certain custodial interrogation of $20. The court is required to track magistrate does not determine the the child, the statement is recorded the number of children ordered existence of probable cause for the by an electronic recording device to participate in the teen dating offense for which the person was and is obtained in another state, in violence program, the percentage of arrested within 36 hours, the person is compliance with the laws of that victims meeting with the teen victim to be released on a bond not to exceed state, the laws of Texas, or obtained advocate, and the compliance rate of $5,000. by a federal law enforcement children in the program. offi cer in Texas or another state in Harris County reports having compliance with federal laws. Commentary: This bill will not have diffi culty meeting the 24 hour a direct impact in municipal courts probable cause hearing deadline Subject: Authorizes Creation as it only applies to cases fi led in prescribed by Article 17.033. This is of Teen Dating Violence Court juvenile court under the Family Code. generally due to the computers of law Program enforcement agencies being down or H.B. 2496 Subject: Family Violence Reports a large volume of traffi c through the Effective: September 1, 2011 Involving Military Personnel county systems slowing the necessary H.B. 2624 preparation of paperwork. H.B. 2496 adds Section 54.0325 to Effective: September 1, 2011 the Family Code and amends the The bill adds Article 17.0331 to Government Code to authorize the H.B. 2624 seeks to ensure that require a county with a population creation of a teen dating violence military offi cials are informed about of three million or more to conduct court program that must be approved circumstances involving family an impact study to determine the by the court and commissioners court violence and other criminal conduct effect of Article 17.033(a-1) on the of the county, and would include by military personnel. By amending county’s ability to control and process the processes and procedures for Section 85.042 of the Family Code the county’s misdemeanor caseload, implementation of the program. and Chapters 5 and 42 of the Code of including specifi c criteria, and to fi le The new program allows a court to Criminal Procedure, the bill creates the study not later than October 15, defer adjudication proceedings for a a requirement that a peace offi cer 2012. This article expires September fi rst-time offender who committed a who investigates family violence 1, 2013. misdemeanor level dating violence in which an active military service offense. That child would be required member is a suspect, must generate a Commentary: As the most populous to complete the teen dating violence written report to be fi led with military county in Texas, it is easy to court program and make a court justice offi cials for the purpose of imagine the logistical problems that appearance once a month. H.B. providing notifi cation to the suspect’s accompany attempting to timely 2496 creates a 12-week teen dating commanding offi cer. magistrate such a large volume of violence court program designed to people on a daily basis. This bill also educate teens and encourage them The bill also adds the obligation for

Page 17 The Recorder August 201 the clerk of the court to provide a victims who are targets of threats but refer additional tasks to Chapter copy of a protective order entered are not related to the perpetrators. 54 magistrates, including matters against the service member, notice of pertaining to an agreed order of the vacancy of any protective order, While this bill marks important expunction, an asset forfeiture, an and written notice of any conviction changes to procedures relating to agreed order of nondisclosure, and or entry of deferred adjudication to family violence and to courts that a hearing on a motion to revoke the same military authorities. issue protective orders, it is important probation. Under this amendment, to note that it does not relate to a a magistrate is not authorized to Commentary: It is unclear if the magistrate’s order of emergency hear a jury trial on the merits of a Legislature is aware that Class C protection issued pursuant to Article bond forfeiture. The bill authorizes assault can be alleged as an act of 17.292 of the Code of Criminal a magistrate to enter a ruling related family violence. While this bill marks Procedure. to a negotiated plea on a probation important changes to procedures revocation, conduct a contested relating to family violence and to Subject: Creation of a Task Force probation revocation hearing, and courts that issue protective orders, to Study Links Between Domestic sign a dismissal in a misdemeanor it does not pertain to a magistrate’s Violence and Child Abuse or case. Finally, the bill amends Article order of emergency protection issued Neglect 18.03 of the Code of Criminal pursuant to Article 17.292 of the S.B. 434 Procedure to authorize “a magistrate Code of Criminal Procedure. It also Effective: June 17, 2011 with jurisdiction over criminal cases does not impose any similar duty serving a district court” to issue on municipal or justice courts in While child protective services search warrants. the context of Class C assault (even caseworkers are trained to recognize when there is a fi nding of family family violence, state law does Subject: Enforcement of Protective violence) upon either conviction or not establish a specifi c protocol Orders by Non-Issuing Courts with deferred disposition. The amendment for handling these types of issues. Jurisdiction to Article 5.05 of the Code of Recently, an informal workgroup S.B. 819 Criminal Procedure may, however, be composed of representatives from Effective: September 1, 2011 construed to impose a duty on peace the Department of Family and offi cers to notify military offi cials of Protective Services, the Health and S.B. 819 amends Chapters 81, 82, and suspected Class C family violence Human Services Commission, Child 83 of the Family Code to provide that assault. Protective Services, and members any court in Texas with jurisdiction of the child abuse, sexual assault, over protective orders and family Subject: Protective Orders for and domestic violence advocacy violence may enforce a protective Stalking Victims community began meeting to order rendered by another court in S.B. 250 examine this issue and related state the same manner as the issuing court. Effective: September 1, 2011 policies. By adding Subchapter W The bill also extends protections to to Chapter 531 of the Government minors by allowing them to apply for Prior to S.B. 250, only victims who Code, S.B. 434 codifi es the mission a protective order for dating violence were related to the alleged stalker of the existing informal workgroup and by allowing a minor’s signed could qualify for a protective order by establishing a task force to statement to be valid in an application without proof of an arrest. S.B. 250 address these issues. The task force is for a temporary ex parte protective amends Chapter 7A of the Code of charged with delivering a report on its order. Criminal Procedure allowing victims fi ndings by September 1, 2012. The of stalking to apply for temporary task force’s commission will expire Commentary: While this bill marks and regular protective orders without September 1, 2013. important changes to procedures regard to the relationship between the relating to family violence and courts applicant and the alleged offender. Subject: Authority of Tarrant that issue protective orders, it does County Magistrates Under Chapter not relate to a magistrate’s order of Commentary: Victims of stalking 54 of the Government Code emergency protection issued pursuant can now circumvent the Family Code S.B. 483 to Article 17.292 of the Code of requirement that the victim be related Effective: September 1, 2011 Criminal Procedure. to the stalker by blood or marriage or if they have ever lived together, S.B. 483 amends Chapter 54 of the or have a child in common. Such a Government Code to authorize a requirement has been problematic for district judge in Tarrant County to

Page 18 The Recorder August 2011 COURT COSTS AND ADMINISTRATIVE ISSUES

— High Priority — are very closely situated may now counties is at least partially a river, enter into agreements establishing may include the revenue generated Subject: Authority for City to Enter concurrent jurisdiction. For cities from services provided in the into Agreement with Contiguous that choose to enter into this type municipality by a utility company City to Establish Concurrent of agreement, a relationship will operating within the municipality as Municipal Court Jurisdiction arise not unlike the one currently municipal revenue for a fi scal year. H.B. 984 existing between municipal and Effective: May 19, 2011 justice courts where state fi ne-only Commentary: This bill amends misdemeanor cases may be brought Section 542.402 of the Transportation A municipal court, in general, has in either court. These agreements Code which currently caps how much jurisdiction only within its own city will mark a new era in which cases revenue certain cities can make from limits, does not share concurrent can be fi led in a municipality other traffi c enforcement. Under current original jurisdiction on municipal than the one in which the offense was law, cities with a population of less matters with other municipal committed. This bill is intended to than 5,000 may retain an amount no courts, and is unable to merge with help municipalities save money and more than 30% of the municipality’s other municipal courts. These improve court services. revenue—commonly referred to as circumstances may often result in the “30% Rule.” multiple municipal courts, located Subject: Using Revenue from in close proximity to each other that Municipal Utility Companies for While the amendment, Section do not share jurisdiction. H.B. 984 Purposes of the “30% Rule” 542.402(f), could possibly benefi t allows contiguous municipalities H.B. 1517 municipalities similarly situated to enter agreements to establish Effective: September 1, 2011 to the City of Martindale, it could concurrent jurisdiction of certain also indirectly be construed to cases for their respective municipal Many smaller municipalities with few mean that other cities governed by courts. Those participating revenue sources count on revenue Section 542.402 are precluded from municipalities may save money from the disposition of traffi c fi nes to considering the revenue generated and improve court services by support maintaining roads and bridges from services in the municipality by establishing such agreements. and enforcing highway safety laws. a utility company operating in the municipality as municipal revenue. H.B. 984 amends Section 29.003 of To prevent municipalities from (Thus, perhaps it’s a good thing the Government Code and Article operating speed traps, the amount that Section 542.402(f) expires on 4.14 of Code of Criminal Procedure of revenue a municipality may September 1, 2021.) to authorize two contiguous retain from the fi nes is based on municipalities, or two municipalities the municipality's other sources of H.B. 1517 will also apply the “30% with boundaries that are within one- revenue from the preceding fi scal Rule” to counties with a population half mile of each other, to enter into year. This restriction has a negative of less than 5,000. According to the an agreement establishing concurrent impact on municipalities who are State Comptroller of Public Accounts jurisdiction for the municipal courts effectively deterring motorists who (CPA), the data from the April 2010 of either municipality in all cases drive at speeds signifi cantly over census indicates that 51 counties will in which the courts have original, the speed limit. H.B. 1517 seeks to now be subject to the same revenue concurrent, or appellate jurisdiction allow certain municipalities to count restrictions as most Texas cities. and in cases arising from offenses additional revenue as other revenue related to the seizure of cruelly so that the municipality is not forced Subject: Record Retention treated animals or the failure to attend to choose between fulfi lling its Requirements for Court Documents school. The bill specifi es that a responsibility to keep roads safe or its Filed Prior to January 1, 1951 municipal court in either municipality fi nancial well-being. H.B. 1559 has original jurisdiction in such a Effective: May 30, 2011 case. H.B. 1517 provides that municipalities with a population of The existence of historic Texas Commentary: Neighboring more than 1,000 but less than 1,200 court records is threatened because municipalities that share a border or and whose boundary between two of the simple need to create space Page 19 The Recorder August 201 for more recent documents in Texas This bill amends the Code of change raises interesting questions, courthouses. These court documents Criminal Procedure relating to certain such as: What occurs if the court contain valuable and irreplaceable pre-trial and post-trial procedures in does not notify the clerk until the information about the early days a criminal case. The bill requires a day before the setting? Will the clerk of Texas statehood. H.B. 1559 will clerk of a court that does not provide be required to repeatedly change a preserve countless numbers of online Internet access to that court's posted docket as cases are moved these written relics of Texas history criminal case records to post notice of around? currently at risk for destruction. a prospective criminal docket setting as soon as the court notifi es the clerk Subject: Refund of a Cash Bond in In 2009, the Texas Supreme Court, of the setting. a Criminal Case under the direction of Chief Justice H.B. 1658 Wallace Jefferson, established the H.B. 1573 amends Article 55.02 of Effective: September 1, 2011 Texas Court Records Preservation the Code of Criminal Procedure, Task Force which is tasked with adding to the information required Article 17.02 of the Code of Criminal the preservation and appropriate to be included, or an explanation Procedure (defi ning “bail bond”) is distribution of these irreplaceable for why it was not included, in an amended to require that any cash documents. H.B. 1559 is in line with ex parte petition for an expunction funds deposited as bail be receipted the Supreme Court's wish that these of records fi led in district court by a by the offi cer receiving the funds and, documents be preserved so that all person entitled to the expunction or on order of the court, be refunded, Texans can learn from the information by the public safety director of the after the defendant complies with the these documents contain. Department of Public Safety or the conditions of the defendant's bond, to: director's authorized representative on (1) any person in the name of whom Currently, there is a state moratorium behalf of such person, the applicable a receipt was issued, in the amount on shredding documents originating physical or e-mail addresses of refl ected on the face of the receipt, prior to 1860; however, documents specifi ed local and state entities and including the defendant if a receipt dating from 1860-1950 are offi cials and of specifi ed federal and was issued to the defendant; or (2) the unprotected. H.B. 1559 amends private entities and offi cials that defendant, if no other person is able Section 441.026 of the Government the petitioner has reason to believe to produce a receipt for the funds. Code to give court documents fi led, have, or that are reasonably likely presented, or produced from 1860 to to have, information related to the Commentary: Under existing law, a January 1, 1951, temporary protection person's criminal history records defendant can claim the refund of a from destruction until the Texas State that are subject to expunction. cash bond even when the defendant Library and Archives Commission After verifying the allegations, the did not post the bond. This bill (TSLAC) adopts rules for the attorney representing the state is attempts to protect the fi nancial retention, storage, and destruction of required to include the applicable interests of people who post bonds records created within those dates. physical or e-mail addresses of those on behalf of defendants by providing specifi ed entities and offi cials to the that the money is refunded to the Commentary: Many municipal information that is forwarded to the person who posted the bond and who courts have experienced the joys and appropriate district court. holds the receipt for the bond. This challenges of record retention and is a good idea and long overdue. destruction the hard way—especially Commentary: Of signifi cance to Nevertheless, under Article 17.02(2), those courts hit by Hurricane Ike in municipal courts is the provision of it is unclear how long a person 2008. All courts are challenged to the bill which amends Article 17.085 has to produce a receipt before it fi nd the space for all of the records. of the Code of Criminal Procedure, is determined by the court that the Take heed and wait to hear from the titled “NOTICE OF APPEARANCE person is not able to and that the TSLAC before you dispose of old DATE.” Now, the clerk of a court defendant is entitled to receive the records. that does not provide online Internet funds. access to that court's criminal case Subject: Time to Post Notice of records shall post in a designated Subject: Establishment of Special Criminal Court Docket Setting public place in the courthouse notice Courts Advisory Panel and Requirement for Additional of a prospective criminal court docket H.B. 1771 Information to Be Included in setting as soon as the court notifi es Effective: June 17, 2011 Expunction Petitions the clerk of the setting rather than the H.B. 1573 existing language of “not less than 48 The purpose of H.B. 1771 is to Effective: September 1, 2011 hours before the docket setting.” This establish the Specialty Courts

Page 20 The Recorder August 2011 Advisory Council in the Governor's are unable to pay in full at the time of Public Accounts (CPA) to OCA. Criminal Justice Division to assist of the plea. All defendants, including It would also provide cities up to with the review and prioritization those granted deferred disposition 180 days to reestablish compliance of grant applications from specialty and a Driving Safety Course (DSC), before imposing a penalty for non- courts such as drug courts. The must conform to the collection model compliance. If the OCA fi nds a city proposed reductions in state grant developed by the Offi ce of Court to be non-compliant under a CIP funds and potential reductions in Administration (OCA). As a result of audit, it could no longer retain a federal grant funds make it essential current legislation, one of the biggest service fee or 50 percent of the time that funds be distributed in a manner burdens recognized is the requirement payment fee. that will maintain support in all areas for court staff to verify payment of Texas. application information submitted The bill also transfers the auditing of by defendants requesting deferred the court-related CIP from the CPA to Commentary: This bill amends disposition via their attorney, and OCA. Chapter 772 of the Government the court must then spend valuable Code by adding Section 772.0061 staff hours verifying that application. The Transportation Code is also which provides that the Governor The time spent on verifying the amended in Section 706.005(a) shall establish the Specialty Courts application of defendants seeking (relating to the Department of Public Advisory Council within the deferred disposition and driving Safety (DPS) Omnibase Program) Criminal Justice Division established safety courses places a substantial to require a political subdivision to under Section 772.006 to evaluate and unnecessary administrative immediately notify DPS that there is applications for grant funding for burden on the courts. Removing no cause to continue to deny renewal specialty courts in Texas and to deferred disposition and DSC cases of a person’s driver’s license based on make funding recommendations from this verifi cation process would the person’s previous failure to appear to the Criminal Justice Division. allow courts to better allocate their or failure to pay or satisfy a judgment Cities with specialty courts, or that resources. ordering the payment of a fi ne and are contemplating the creation of a cost (emphasis added). specialty court, should be become Current law does not provide an familiar with the contents of H.B. opportunity to remedy an assessment Commentary: This bill is the 1771. While currently only a county of noncompliance for purpose byproduct of two distinct things: (1) may establish a mental health court of retaining a service fee. If the the frustration of local courts with the or a veterans court, a municipality comptroller determines that a court CIP, and (2) the frustration of lawyers may establish a drug court program has violated any provision, the court who believe that some municipal and (Section 469.002, Health and Safety must immediately begin turning the justice courts are not timely removing Code). Urban municipalities, where funds over to the comptroller. Often, cases from the DPS Omnibase most municipal specialty courts are the assessment could be the result of Program. The bill also amends Article located, are most likely to request the a miscommunication, administrative 133.058 of the Local Government Legislature expand Chapter 772 so error, or an oversight that can Code, removing the penalty for more municipal courts may also seek be easily and quickly corrected. CIP non-compliance by counties grant funding. Modifying this process could help of all population sizes; however, in prevent unnecessary burden on courts the Special Session, in S.B. 1, the Subject: Offi ce of Court that must give up much-needed fees Legislature reinstated the mandatory Administration Assumes Authority with no ability to correct a defect requirement for all counties with a to Audit Under Collection in either the audit or the collection population of 50,000 or greater. Improvement Program from process. Comptroller; Retention of Service Subject: State Fiscal Matters; Fee by City H.B. 2949 amends Article 103.0033 Repeal of Child Safety Seat Court H.B. 2949 of the Local Government Code to Cost Effective: September 1, 2011 change several requirements of the S.B. 1 (1st Special Session) Collection Improvement Program Effective: September 28, 2011 Municipal courts process more cases (CIP). This includes redefi ning than all other courts in Texas. The eligible cases to exclude deferred Commentary: Deep in the bowels current collection improvement dispositions and DSC cases; making of this 271-page clean-up bill model requires courts to collect and the program voluntary for all dealing with fi scal matters covering verify time pay applications from counties; and transferring the CIP everything from school fi nance anyone entering into a plea if they audit function from the Comptroller to petroleum industry regulation,

Page 21 The Recorder August 201 the Legislature, in Article 69, has S.B. 321 Government Code, fees in this Act repealed the .15 cent court cost Effective: September 1, 2011 take effect January 1, 2012) contained in Section 545.412 of the Transportation Code, assessed on Currently, a person who is lawfully Commentary: Chapter 702 of conviction of the child passenger authorized to possess fi rearms or the Transportation Code allows safety seat offense. ammunition may transport them in municipalities to contract with the the person's motor vehicle. Some county in which they are situated While many thought that at least people do so to protect themselves or with the Texas Department of one new court cost bill affecting in a lawful and responsible manner. Motor Vehicles (TxDMV) to deny municipal and justice courts would Others routinely transport fi rearms registration of a motor vehicle for be passed during the Special Session, or ammunition in their vehicles in owners who have failed to appear few would have guessed that an anticipation of future hunting trips or failed to pay on a traffi c law existing court cost would be repealed. or visits to the local shooting range violation. S.B. 1386 amends Section Thank goodness this pesky issue is or gun club. Others hold concealed 702.003 of the Transportation Code resolved! Or is it? Section 51.607 handgun licenses. Many companies to provide that a municipality shall of the Government Code provides in Texas have adopted a no-fi rearms notify the TxDMV or the county that when a court cost is imposed policy that extends beyond the actual assessor-collector, rather than the or changed, notwithstanding the workplace to employee parking lots— county, when there is no longer cause effective date of the law changing areas that often are not secured. To to deny vehicle registration under the the amount of the court cost, the comply with such a policy, employees Scoffl aw program. imposition or change does not take must choose between protecting effect until the following January 1. themselves when commuting to Furthermore, Section 702.003(e-1) However, the bill provides that this and from work and being subject to authorizes a municipality that has change in law applies only to offenses termination by their employer. a Scoffl aw contract to impose an committed on or after the effective additional $20 fee to a person who date—which, because the bill S.B. 321 prohibits a public or has an outstanding warrant from the received less than a 2/3 vote in the private employer from prohibiting municipality for failure to appear or House, the bill takes effect the 91st an employee who lawfully possesses failure to pay a fi ne on a complaint day after the last day of the legislative a fi rearm or ammunition from that involves the violation of a session—i.e., September 28, 2011. transporting or storing the fi rearm traffi c law. The law provides that the Thus, only those offenses occurring or ammunition in a locked, privately additional fee may only be used to before September 28 would require owned motor vehicle in a parking reimburse the TxDMV or the county the .15 cent cost to be collected. area the employer provides for assessor-collector for its expenses Could the Legislature intend for employees, with certain exceptions. in providing services under the courts to rely on Section 51.607’s contract. Interestingly, this fee is not January 1st date and continue to Commentary: Several cities have mandatory as the bill merely provides collect money on the basis of a statute personnel policies in place that a municipality with the authority to that does not exist? More likely than prohibit employees from carrying impose the $20 fee. The bill gives not, the answer is no. weapons on city premises. As no guidance on how or when this courthouses and courthouse parking fee would have to be remitted to the S.B. 1 also dismantled the lots are often city-owned property, county or TxDMV. portion of H.B. 2949 which made and court personnel often drive city- participation in the Collection owned vehicles on court business, Subject: Expanded Uses Improvement Program by counties these policies would extend to Authorized for Municipal Court with a population of 50,000 or more cover court personnel. S.B. 321 Building Security Fund voluntary. In the fi nal days of the now prohibits these policies and S.B. 1521 Special Session, the Legislature should be noted by those cities with Effective: June 17, 2011 reversed the actions of H.B. 2949 to such policies in place and by court make county participation mandatory. administrators that have imposed a S.B. 1521 amends Section 102.017 similar policy on court employees. of the Code of Criminal Procedure Subject: Restriction on Prohibiting regarding the distribution of money Subject: New $20 Fee for Scoffl aws Employee Access to or Storage appropriated from a municipal of Legally Possessed Firearms or S.B. 1386 court building security fund. The Ammunition in Employee Vehicles Effective: September 1, 2011 bill adds Subsection 102.017 (d-1) (Pursuant to Section 51.607 of the (12) to the list of authorized items

Page 22 The Recorder August 2011 that the funds can be expended on to place through the court system must or misdemeanor, (3) released, (4) include warrant offi cers and related be handled by a private attorney or the charge has not resulted in a fi nal equipment. a legal representative working on conviction, (5) the charge is no longer the behalf of the exoneree. This can pending, and (6) there was no court- Commentary: This will be good involve signifi cant court costs and ordered community supervision for news for courts that have in-house possible attorney fees. The second the applicable offense, unless the warrant offi cers that are considered objective of H.B. 351 addresses the offense is a Class C misdemeanor. court staff; however, it could also ability to expunge the records related Both bills now provide that a person exacerbate struggles with municipal to an offense where the case has been is entitled to an expunction regardless law enforcement over the use of dismissed or no charges have been of whether any statute of limitations municipal court building security fi led. This issue was also addressed exists for the offense and whether funds. Many municipal courts within S.B. 462. any limitations period for the offense still lack the most rudimentary has expired on the condition that an components of a secure court facility. Current law and court decisions have indictment or information has not Some fear that this bill may benefi t made it increasingly diffi cult for been presented at any time following law enforcement at the expense of a person who has certain criminal the arrest and at least 180 days have court staff and members of the public. charges that have been dismissed elapsed from the date of arrest if the Will this bill prove to be a setback for receive an expunction. This was arrest was for an offense punishable courthouse security? compounded by a July 2007 Texas as a Class C misdemeanor; at least Supreme Court ruling in State vs. one year has elapsed from the date — Medium Priority — Beam, 226 S.W.3d 392 (Tex. 2007), of arrest if the arrest was for an wherein the Court ruled that even a offense punishable as a Class B Class C misdemeanor that has been or A misdemeanor; at least three Subject: Changes to Expunction dismissed through completion of years have elapsed from the date of Procedures and Eligibility in deferred adjudication (as the Class C arrest if the arrest was for an offense Chapter 55 of the Code of Criminal was a lesser-included offense) could punishable as a felony; or the attorney Procedure not be expunged until the statute representing the State certifi es that H.B. 351; S.B. 462 of limitations for the offense has the applicable arrest records and Effective: September 1, 2011 expired—note that the Beam case has fi les are not needed for use in any now been superseded by the changes criminal investigation or prosecution, H.B. 351 accomplishes two in H.B. 351 and S.B. 462, and is, including an investigation or objectives: fi rst, the bill allows therefore, no longer good law. prosecution of another person. the district or county attorney to Additionally, both bills provide represent a person who has been Texas law allows the records of that the entitlement also applies (1) exonerated following a wrongful criminal charges to be expunged only regardless of whether any statute of conviction in having the records under a narrow set of circumstances. limitations exists for the offense and of the arrest, indictment, and Those circumstances include when a whether any limitations period for the imprisonment expunged. Since the case has resulted in acquittal, when offense has expired on the condition fi rst DNA exoneration in 1989, a person has received a pardon, and that the presented indictment or 267 such exonerations have taken when the charges are the result of information was dismissed or quashed place in the United States. The most mistaken or misused identity. The and the court makes certain fi ndings, recent fi gures show 42 exonerations ramifi cations of this legal barrier or (2) if prosecution of the person for have occurred in Texas; the most of have negative consequences for the offense for which the person was any state. Although exonerated, the persons seeking employment when arrested is no longer possible because criminal records connected to the confronted with employers who the limitations period has expired. arrest, indictment, and conviction now routinely conduct background The bills remove the condition that for the offense still exist. While an checks. Both H.B. 351 and S.B. the person has not been convicted of a exoneration and pardon overturns the 462 amend Chapter 55 of the Code felony in the fi ve years preceding the conviction and releases the subject of Criminal Procedure to revise the date of the arrest. from incarceration, an expunction conditions under which a person is is still needed to remove records of entitled to have all records and fi les The bills provide that a person may the offense from various national, relating to an arrest expunged: (1) not expunge records and fi les relating state, and local criminal history when the person has been placed to an arrest that occurs pursuant to records repositories. Presently, the under a custodial or noncustodial a warrant issued for a violation of a expunction process that must take arrest for commission, (2) of a felony condition of community supervision.

Page 23 The Recorder August 201 Likewise, a person who intentionally indictment is the charging instrument persons with disabilities. or knowingly absconds from the used in felonies. An information jurisdiction after being released serves as the charging instrument in H.B. 1481 initiates the process of on bail following an arrest is not either a Class A or B misdemeanor. changing Texas statutes and rules eligible for an expunction where such The charging instrument for a Class to refl ect important changes in eligibility is based on the expiration C misdemeanor is a complaint. The our societal views toward persons of the applicable statute of limitations Court of Criminal Appeals has made with disabilities. The bill specifi es or the fact that a certain period has clear that the indictment, information, preferred language for new and elapsed since arrest without the and complaint are separate and revised laws by requiring the use of presentment of a charging document. distinct charging instruments. See, terminology that places the person Huynh v. State, 901 S.W.2d 480 (Tex. before the disability. A court shall provide in an Crim. App. 1995). In Huynh, the expunction order for a person still Court was unwilling to fi nd legislative Commentary: The Texas Legislative subject to conviction because if the intent that statutory references to Council and Legislature are directed statute of limitations has not run indictments and informations also to avoid using the following terms then the applicable law enforcement contemplated complaints. in enacting or revising statutes agency and prosecuting attorney and resolutions: (1) disabled; (2) are authorized to retain the arrest Subject: Person First Respectful developmentally disabled; (3) records and fi les of any person who Language Initiative mentally disabled; (4) mentally ill; (5) becomes entitled to an expunction H.B. 1481 mentally retarded; (6) handicapped; of those records and fi les based on Effective: September 1, 2011 (7) cripple; and (8) crippled. The the expiration of a period under replacement phrases are: (1) persons the bill’s provisions, but without Language used in reference to with disabilities; (2) persons the certifi cation of the prosecuting persons with disabilities shapes and with developmental disabilities; attorney. refl ects society’s attitude toward (3) persons with mental illness; persons with disabilities. Certain and (4) persons with intellectual Commentary: Under current law, terms and phrases traditionally used disabilities. The bill provides that a municipal court defendants can to refer to persons with disabilities statute or resolution is not invalid petition district courts for expunction are now considered by some to be solely because it does not employ a under Chapter 55 if they were demeaning and hurtful and can create preferred phrase. acquitted or upon the expiration of barriers to the inclusion of persons the statute of limitations (in Class C with disabilities as equal community For nearly a decade, the National misdemeanors cases, two years from members. Center for State Courts has been the date of offense) when no charging encouraging trial courts to put people instrument is ever fi led. H.B. 351 and Thirty-two states and the District of fi rst and not their disabilities. The S.B. 462 now provide that without Columbia have current or pending Respectful Language Initiative regard for the statute of limitations, laws, policies, or positions in is something for judges, court a person can secure an expunction if support of the use of what has come administrators, and city attorneys an indictment or information charging to be called respectful language to keep in mind in enacting human the person with the commission or language that places the word resources policies and for all of a misdemeanor offense has not “person” before the word “disability.” court personnel to consider in been presented and, in the case of a Recently, the federal government communications with the public. Class C misdemeanor, at least 180 enacted legislation that requires days have elapsed from the date of the use of respectful language Subject: TexasOnline Renamed arrest. On fi rst glance, this change in certain federal policies. Many “State Electronic Internet Portal” appears to attempt to circumvent the organizations, such as the World H.B. 1504 statute of limitations (although there Health Organization, the Center for Effective Date: June 17, 2011 is an exception allowing prosecutors Disease Control and Prevention, the and law enforcement to retain their American Association of Intellectual Currently, the offi cial website, or records in case they want to bring and Developmental Disabilities, Internet portal, for the State of charges after the 180 days but before The Arc of the United States, the Texas is Texas.gov. Operated by the expiration of two years). Special Olympics, and the President’s the Department of Information Committee on Individuals with Resources and in partnership with a This bill does not, however, expressly Intellectual Disabilities, have also private vendor, Texas.gov replaced contemplate complaints. An adopted language that is respectful to TexasOnline.com when the site

Page 24 The Recorder August 2011 was updated to refl ect new website judge to adopt rules not inconsistent personally served to a president, naming conventions. The purpose with provisions of state law or other vice-president, or registered agent of of H.B. 1504 is to replace statutory law for municipal courts of record to the corporation. Many corporations references to “TexasOnline” with the provide effi ciency, uniformity, and and other entities elect to appoint generic term “state electronic Internet fairness in the conduct of the business a separate corporation as their portal” so that those references will of the courts. The bill authorizes the registered agent to receive civil not have to be changed if the site is rules to address courtroom decorum process on behalf of the corporation. renamed. and attire; address court protocol; However, if that service of process govern the hearing of pleas, motions is challenged, some courts have held Commentary: Just as courts have for continuance, motions to withdraw that the corporation was not properly become accustomed to referring and for substitution, and pre-trial served, since current law provides to the “TexasOnline fee,” when motions; establish procedures related that process must be personally informing defendants about obtaining to a defendant’s failure to appear and delivered to a person and not to online copies of their driving records a defendant’s indigence or inability a company. This situation creates (see, Article 45.0511 of the Code of to pay fi nes; and address warrant confusion, lost time, additional costs Criminal Procedure), the name of the procedures. The bill exempts the in litigation, and backlogs in court. fee is changed to the “Internet portal presiding judge of the municipal court H.B. 2047 amends Section 5.201 of fee.” of record in the City of Mesquite the Business Organizations Code to from certain provisions of general allow for process to be served on a Subject: Creation of Municipal law relating to the duties of presiding corporation through the corporation’s Court of Record in Mesquite judges in municipal courts of record. registered agent. A registered agent H.B. 1889 that is an organization must have an Effective: January 1, 2012 Subject: Registered Agent for Civil employee available at the registered Process offi ce during normal business hours H.B. 1889 amends Chapter 30, H.B. 2047 to receive service of process, notice, Subsection YY of the Government Effective: September 1. 2011 or demand. Any employee of the Code to create a municipal court organization may receive service at of record in the City of Mesquite, Under current law, civil papers the registered offi ce. Texas. It also requires the presiding served to a corporation must be Subject: Required Notice of Ineligibility to Vote on Written Juror Summons H.B. 174 Effective: September 1, 2011

Current law defi nes a qualifi ed voter as a United States citizen but does not require or provide a method for verifying and enforcing the requirements to vote, including the citizenship requirement. H.B. 174 addresses this problem by providing a way through which a deceased person and a person ineligible to vote due to citizenship status may be removed from a voter registration list.

Commentary: H.B. 174 amends Section 62.0142 of the Government Code to require that a written summons for jury duty, if it allows a person to claim a disqualifi cation or exemption through the mail, must have a statement on the summons form notifying the person that by claiming a disqualifi cation or exemption based on lack of citizenship, the person will no longer be eligible to vote if they fail to provide proof of citizenship. Section 62.0132 is also amended, requiring the Offi ce of Court Administration (OCA) to amend their Offi cial Uniform Model Jury Summons and Questionnaire to include the same notifi cation. Municipal courts are not required to use the OCA Model Summons or Questionnaire, though TMCEC does include this in the TMCEC Forms Book as a sample for cities to adapt. OCA has updated their Model Summons and Questionnaire per H.B. 174, and cities can access it on the OCA website.

Subject: Juror Exemption for Those with Custody of Children Under Age 12 H.B. 2717 Effective: June 17, 2011

Section 62.106 of the Government Code previously allowed a person to be exempt from petit jury service if the person has custody of a child younger than 15 years of age and such service would leave the child without adequate supervision. H.B. 2717 decreases the maximum age of the child on which that exemption is based to 12 years.

Commentary: In 2007, the maximum age of the child was 10. In 2009, the Legislature increased the maximum age of the child to 15. With this amendment, a person can only establish an exemption from jury duty if they have custody of a child younger than 12 who would be left without adequate supervision if the person was required to serve on a jury.

Page 25 The Recorder August 201 Court Costs

For Conviction of Offenses Committed on or after September 28, 2011

OFFENSE/DESCRIPTION State Local Local State State State State CF TFC CS STF SJRF IDF JSF*3 Total*2 MUNICIPAL ORDINANCES ■ Parking (authorized by Sections 542.202-542.203, Transportation Code) N/A N/A *1 N/A N/A N/A N/A *1 ■ Pedestrian N/A N/A N/A N/A N/A N/A N/A N/A ■ Other Municipal Ordinances 40.00 N/A N/A N/A 4.00 2.00 6.00 52.00 STATE LAW

■ Transportation Code, Subtitle C, Rules of the Road • Parking & Pedestrian (in school crossing zone) N/A 3.00 25.00 30.00 N/A N/A N/A 58.00 • Parking & Pedestrian (outside school crossing zone) N/A 3.00 N/A 30.00 N/A N/A N/A 33.00 • Overtaking & Passing a School Bus, Section 545.066 40.00 3.00 25.00 30.00 4.00 2.00 6.00 110.10*2 • Other (in school crossing zone) 40.00 3.00 25.00 30.00 4.00 2.00 6.00 110.00*2 • Other (outside school crossing zone) 40.00 3.00 N/A 30.00 4.00 2.00 6.00 85.00*2 ■ Transportation Code, Section 601.192, Failure to Maintain Financial Responsibility 40.00 N/A N/A N/A 4.00 2.00 6.00 52.00 ■ Parking and Pedestrian (Outside Subtitle C) N/A N/A N/A N/A N/A N/A N/A N/A ■ Education Code • Parent Contributing to Nonattendance, Section 25.093 40.00 N/A 20.00 N/A 4.00 2.00 6.00 72.00 • Failure to Attend School, Section 25.094 40.00 N/A 20.00 N/A 4.00 2.00 6.00 72.00 ■ All other fi ne only misdemeanors not mentioned above. 40.00 N/A N/A N/A 4.00 2.00 6.00 52.00*2

Add applicable fees and other costs whenever they apply. See next page of chart for additional costs and fees. For the purpose of assessing, imposing, and collecting most court costs and fees, a person is considered to have been convicted if - pursuant to Section 133.101, L.G.C., or other specifi c statutes authorizing court costs - a judgment, a sentence or both a judgment and a sentence are imposed on the person; or the person receives DSC or some form of deferred disposition (see Articles 45.051-45.053, C.C.P.). This expanded defi nition of “conviction” does not appear in the statute establishing the Juror Reimbursement Fee. *1 ■ $2-5 court cost for cities with population greater than 850,000 that have adopted appropriate ordinance, regulation, or order mandatory). ■ Up to $5 court cost for cities with population less than 850,000 that have adopted appropriate ordinance, regulation, or order (optional). *2 ■ MVF: Add 10 cent court cost on all moving violations. Article 102.022, Code of Criminal Procedure. Moving violations are found in 37 TAC § 15.89(b). Note that some moving violations are in codes other than the Transportation Code. Note: overtaking and passing a school bus is a moving violation; therefore, the 10 cents has already been calculated into the total. *3 ■ Judicial Support Fee: Sixty cents of this fee stays with the city to promote effi cient operation of the municipal court. See Sec. 133.105(6) L.G.C. FEES (Add the following fees whenever they apply): ■ Administrative Fee: A court may assess up to a $10 fee when a defendant elects to take a driving safety course (DSC) on or before the answer date on the citation (Art. 45.0511(f)(1), C.C.P.). When the court elects to obtain the defendant’s driving record, rather than have defendant obtain it, the court may require defendant to pay $10 plus the amount of the state electronic Internet portal fee for the certifi ed Texas DL record from DPS. The court may order an administrative fee to be paid when the court grants DSC under Article 45.0511(d), C.C.P. – court’s discretionary authority. The fee may not exceed the maximum amount of the possible fi ne for the particular offense charged (Art. 45.0511(f)(2), C.C.P.). ■ Applicable fees for services of peace offi cers under Article 102.011, C.C.P.: • Arrest Fee: $5 for issuing a written notice to appear in court following the defendant’s violation of a traffi c law, municipal ordinance, penal law, or for making an arrest without a warrant. When service is performed by a peace offi cer employed by the State, 20% ($1) is sent to the State. • Warrant Fee: $50 for executing or processing an issued arrest warrant, capias, or capias pro fi ne. When service is performed by a peace offi cer employed by the State, 20% ($10) is sent to the State • Summoning a Witness: $5 for serving a subpoena. • Summoning a Jury: $5 for summoning a jury. • Service of any other writ (includes summons for a defendant or a child’s parents): $35. • Other costs: Costs for peace offi cer’s time testifying while off duty. ■ Fees Created by City Ordinance: Juvenile Case Manager Fee: Up to $5 fee for every fi ne-only misdemeanor offense if governing body has passed required ordinance • establishing a juvenile case manager fund and has hired a juvenile case manager. (Art. 102.0174, C.C.P.).

Page 26 The Recorder August 2011 • Municipal Court Building Security Fee: $3 on every conviction if governing body has passed required ordinance establishing building security fund (Art. 102.017, C.C.P.). ■ Municipal Court Technology Fee: Up to $4 on every conviction if governing body has passed required ordinance establishing the municipal court technology fund (Art. 102.0172, C.C.P.). ■ Jury Fee: $3 fee collected upon conviction when case tried before a jury. $3 fee collected upon conviction if defendant had requested a jury trial and then withdrew the request not earlier than 24 hours before the time of trial; fee to be paid even if case is deferred (Art. 102.004, C.C.P.). ■ Restitution Fee: $12 optional fee for defendants paying restitution in installments (Art. 42.037, C.C.P.). ■ Special Expense Fees: 1) Under Article 45.051, C.C.P., the court may assess a special expense fee not to exceed the amount of fi ne that could be imposed. (Art. 45.051(c), C.C.P.); 2) An amount not to exceed $25 that may be collected for execution of a warrant for failure to appear or violate promise to appear. City ordinance required to authorize collection (Art. 45.203, C.C.P.). ■ Time Payment Fee: The court shall collect a fee of $25 from a person who has been convicted and pays any part of the fi ne, court costs, or restitution on or after the 31st day after the date on which the judgment is entered. One-half ($12.50) is sent to the State. One-tenth ($2.50) is retained locally for judicial effi ciency. Four-tenths ($10) are retained locally with no restrictions (Sec. 133.103, L.G.C.). ■ Traffi c Law Failure to Appear (FTA) (Omni Base): $30 for failure to appear or failure to pay or satisfy a judgment for violation of any fi ne-only offense if city has contracted with the Department of Public Safety to deny renewal of driver’s licenses. (Two-thirds ($20) are sent to the State. One-third ($10) is retained locally.) Applies to any violation that municipal court has jurisdiction of under Article 4.14, C.C.P. See Chapter 706, T.C. ■ Traffi c Law Failure to Appear: $20 optional fee for failure to appear or satisfy a judgment for violation of a traffi c law if the city has contracted with the county assessor-collector pursuant to Chapter 702 of the Transportation Code to deny the registration of vehicles. The optional fee goes to the county or TxDMV to reimburse expenses of the program. See Sec. 702.003 (e-l), T.C. This fee takes effect January 1, 2012. Safety Belts & Child Safety Seat Systems: City must remit to the State 50 percent of the fi nes collected for failing to secure a child in a child passenger safety system or to secure a child in a safety belt (Secs. 545.412 & 545.413(b), T.C.). Remittiture must be done at the end of the city’s fi scal year. Excess Fines: Cities with population less than 5,000 must remit all but one dollar of fi nes and special expenses under Article 45.051, C.C.P., for Title 7, T.C., offenses when the fi nes and special expenses for such offenses reach 30 percent of the city’s budget less any federal money (Section 542.402(b), T.C.). Name of Cost/Fee Legal Reference Abbreviation Consolidated Fee Local Government Code, Section 133.102 CF Traffi c Fund Transportation Code, Section 542.403 TFC Child Safety Fund Code of Criminal Procedure, Article 102.014 CS State Traffi c Fee Transportation Code, Section 542.4031 STF State Juror Reimbursement Fee Code of Criminal Procedure, Article 102.0045 SJRF Indigent Defense Fee Local Government Code, Section 133.107 IDF Judicial Support Fee Local Government Code, Section 133.105 JSF Moving Violation Fee Code of Criminal Procedure, Article 102.022 MVF

Orientation for New Judges and Clerks Not mandatory for judicial education credit.

Meet with TMCEC staff members to discuss key concepts and processes for municipal courts in Texas. This orientation carefully examines procedures related to Driving Safety Courses (DSC) and Deferred, and will strengthen your understanding of the structure of Texas non-municipal courts.

10:00 a.m. - 3:30 p.m. — Lunch provided at no charge.

Check the Orientation date that you would like to attend:  Wednesday, October 19, 2011  Wednesday, February 15, 2012  Wednesday, May 16, 2012

There is no registration fee for this program. ORIENTATION REGISTRATION FORM Name:______Title:______Court Represented: ______Hire Date: ______Court Address ______City: ______Zip: ______Telephone Number: ______Fax Number: ______E-mail: ______Call to enroll: 800.252.3718 or 512.320.8274 or fax registration form: 512.435.6118

Page 27 The Recorder August 201 SUBSTANTIVE CRIMINAL LAW

— High Priority — A recent report to the Legislature a pseudonym instead of their own recommended certain statutory name for use in all public documents Subject: Prohibition Against Glass changes to provide a mechanism pertaining to the judicial proceeding. Containers near Certain Riverbeds for protective orders to prevent Once a pseudonym is applied for H.B. 218 interaction and contact between a and granted, then state offi cials must Effective: September 1, 2011 victim of a traffi cking of persons update all relevant records to refl ect offense and the offenders, as well the change in identity and utilize the If not properly disposed of, glass as restrictions on offenders and pseudonym to designate the victim containers pollute river beds and put warnings for violations. H.B. 2329 in all future proceedings. The bill swimmers, anglers, paddlers, and amends current law relating to the also makes it a Class C misdemeanor campers at risk of suffering an injury confi dentiality of certain information offense to knowingly disclose the true caused by broken glass. H.B. 218, regarding victims of traffi cking of identity of a victim identifi ed by a adding Section 365.035 to the Health persons and to the issuance and pseudonym. and Safety Code, seeks to remedy this enforcement of protective orders problem by establishing provisions to protect victims of traffi cking of Commentary: H.B. 2329 may relating to the possession of a glass persons and provides penalties. impact municipal courts as it creates container within the boundaries new Class C misdemeanors. Article of certain riverbeds and providing The bill adds Chapter 7B, to the 57D.03(d) of the Code of Criminal criminal penalties in order to create a Code of Criminal Procedure applying Procedure makes it illegal for a safer environment. specifi cally to victims of traffi cking public servant or other person who of persons offenses. The new chapter has access to the name, address, Commentary: While creating a is similar to current Chapter 7A which or telephone number of a victim Class C misdemeanor for possession provides for protective orders to be 18 years of age or older who has of a glass container within the issued to victims of sexual assault. chosen a pseudonym to knowingly boundaries of a riverbed might be Under the new provisions, a victim, disclose that information to any welcomed, the actual application of the guardian of a victim under 20, or person who is not assisting in the this bill is extremely limited. First, the prosecuting authority may seek investigation or prosecution of the bill itself only applies to certain a protective order against a person the offense or to any person other counties located near the Mexican accused of committing the offense than the defendant, the defendant's border that also contain at least four of traffi cking of persons regardless attorney, or a person specifi ed in rivers. Second, several exceptions of any other relationship which may an order of a court of competent to the bill impair its usefulness to exist between the victim and the jurisdiction. Article 57D.03(d) also enforcing authorities. Besides the defendant. The provisions regarding makes it a Class C misdemeanor geographic jurisdictional restrictions, the protective order are similar to for a public servant or other person the bill does not apply to landowners those currently enacted in Chapter who has access to, or obtains the whose properties are adjacent to the 7A, but with additional guidelines name, address, or telephone number waterway—meaning that in addition provided for post-trial protective of a victim younger than 18 years to homeowners, businesses that sell order requirements and duration. of age to knowingly disclose that or serve beverages in glass containers The default duration of a protective information to any person who is and own their land are not subject to order under this chapter is two years not assisting in the investigation or penalty if their property lies along the unless otherwise specifi ed. A shorter prosecution of the offense or to any riverway. Finally, the bill provides duration may be specifi ed and, if person other than the defendant, the a defense to a person who does not cause is shown for the necessity, may defendant's attorney, or a person transport a glass container into the extend to the lifetime of the victim or specifi ed in an order of a court of riverbed boundary. offender. competent jurisdiction, unless the disclosure is required or permitted Subject: Confi dentiality and The Code of Criminal Procedure is by other law. Court staff involved Protective Orders for Victims of also amended by adding Chapter 57D in the adjudication of these new Traffi cking of Persons Offenses providing a statewide mechanism offenses should take precautions to H.B. 2329 by which victims of traffi cking of prevent unauthorized disclosure of Effective: September 1, 2011 persons offenses may opt to designate information under this new law.

Page 28 The Recorder August 2011 Subject: Creates Offense of accountability and oversight of but is actually a product that has been Installation of Irrigation System vehicle inspection stations and sprayed with a chemical compound Without a License vehicle inspectors and requires a that mimics the effects of THC, the H.B. 2507 vehicle inspection station to post active ingredient in marijuana, and is Effective: September 1, 2011 bond as a condition of certifi cation. being smoked to produce intoxicating effects. K2 is legal and it is being The bill amends Section 1903.256 Commentary: The bill amends the sold at gas stations and smoke shops of the Occupations Code by creating Transportation Code to permit the across Texas—as well as online to a new Class C misdemeanor for the Texas Commission on Environment Texans of all ages. act of installing an irrigation system Quality (TCEQ) to impose an without a license. administrative penalty for certain Unbeknownst to the user, smoking violations related to motor vehicle K2 can have dangerous consequences There is concern that lawn irrigation inspection. The bill requires, in that put the user's health at great risk. systems are being installed by the new Section 548.4045 of the The reported side effects include unlicensed irrigation installers Transportation Code, applications hallucination, severe agitation, because they can offer the service for certifi cation as a motor vehicle elevated heart rate and/or blood more cheaply than a licensed installer. inspection station in certain counties pressure, chest pains, blackouts, The concern is that unlicensed to include a surety bond of $5,000. tremors, seizures, and cardiac installers will contaminate the The bill also creates civil penalties infarction. According to the Texas public water supply because they under Section 548.6015 and Poison Center Network, there were are not trained to prevent the non- administrative penalties in Section 555 K2-related calls in 2010 and the potable water in lawn irrigation 548.3065 for certain violations number increases with each passing pipes from fl owing into public water committed by inspection stations and month. supply pipes that are opened during inspectors related to motor vehicle installation. inspections. The bill increases the The problem is spreading across fee for certifi cation under Section Texas and the use of K2 among Concerned parties report that many 548.506 as an inspector from $10 people of all ages and all walks of municipal and county judges will to $25 and increase the fee for life is increasing. S.B. 331 addresses not prosecute unlicensed irrigation certifi cation under Section 548.507 the legal sale, manufacture, and installers because there is no clear as an inspection station from $30 to possession of synthetic cannabinoids punishment for the offense. H.B. $100. The bill also increases certain in Texas. Currently, there are three 2507 addresses these concerns by fees for certifi cation as an inspection illegal synthetic cannabinoids in creating the offense of Installing station if the inspection station had Penalty Group 2, but many other an Irrigation System Without a previously been convicted of certain compounds are unregulated under License, making it unprofi table for violations. Texas law. an unlicensed irrigator to continue practicing without a license. The bill creates the new offense of S.B. 331 criminalizes the Fraudulent Emissions Inspection of manufacture, sale, and possession Commentary: This is a new Class Motor Vehicle by adding Section of the unregulated compounds C misdemeanor offense of interest to 548.6035 of the Transportation Code. by broadly defi ning subclasses of municipal code enforcement offi cers The offense is a Class B misdemeanor synthetic cannabinoids, but explicitly and building inspectors. It may also in all but one instance. It is a new listing compounds that have been pose preemption issues to some Class C misdemeanor for a person identifi ed in products currently on the municipal ordinances. to knowingly, in connection with a market. The penalties for possession required emissions inspection of a track those of marijuana where the Subject: Fraudulent Emissions vehicle, bypass or circumvent a fuel compound has been sprayed onto an Inspection of a Motor Vehicle cap test. organic substance but differ when the S.B. 197 substance is in its pure form. The Effective: September 1, 2011 Subject: Outlawing Synthetic penalties for manufacture and sale Marijuana track those of Penalty Group 2. Automotive emissions enforcement S.B. 331 efforts in north central Texas have Effective: September 1, 2011 S.B. 331 creates a new Penalty Group uncovered evidence of pervasive 2-A under Section 481.1031 of the fraud among inspection stations in K2, also known as Spice, Genie, and Health and Safety Code designating the region. S.B. 197 strengthens Fire & Ice, is marketed as incense certain synthetic cannabinoids as

Page 29 The Recorder August 201 controlled substances under the Texas conduct means sexual contact, actual harass, annoy, alarm, abuse, torment, Controlled Substances Act, provides or simulated sexual intercourse, embarrass, or offend another, and penalties, and establishes certain deviate sexual intercourse, a Class A misdemeanor for repeat criminal consequences or procedures. sexual bestiality, masturbation, offenses. S.B. 407 added Article sadomasochistic abuse, or lewd 45.061 to the Code of Criminal Commentary: Cities that have exhibition of the genitals, the anus, Procedure authorizing a court to order enacted local ordinances restricting or any portion of the female breast a minor convicted of sexting to attend or banning the use or sale of K2 will below the top of the areola. and successfully complete an above- need confer with their city attorneys referenced educational program. If as such ordinances may be preempted The bill creates an affi rmative defense so ordered, either the defendant or by state law. Are you unfamiliar for sexting between minor spouses defendant’s parent must pay the cost with K2? TMCEC recently featured or between minors within two years of attending the program. The bill an article that predicted that such of age who were dating at the time of defi nes "parent" and specifi es that the ordinances could be “up in smoke.” the offense. This mirrors an existing term does not include a parent whose Read Cathy Reidel’s article “K2: defense under the pornography parental rights have been terminated. What is All the Buzz About?” The statute, which is necessary because Recorder (January 2011). without the defense, two minors S.B. 407 provides that a court must could legally have sex but could allow discovery of sexting material in Subject: Electronic Transmission of not “sext.” The law also provides a the same way discovery of material Certain Visual Material Depicting defense to prosecution to protect an related to child pornography is Minors (“Sexting”) innocent recipient of an unsolicited allowed. A court may not disclose S.B. 407 sext if the minor recipient destroyed evidence to the public that is the basis Effective: September 1, 2011 the sext within a reasonable time of of a sexting criminal prosecution. receiving it. Under current law, the act of sending Commentary: The new sexting a sexually explicit text message S.B. 407 amends Section 51.08 of offense presents a new framework may be prosecuted under adult the Family Code to require a court for municipal courts. Courts must pornography laws. This can lead in which there is a pending sexting be concerned with the age of the to felony convictions and possible complaint against a child (under 17 defendant, as municipal courts cannot lifelong registration under the sex years of age) to waive its original hear sexting cases against children, offender registration program. As a jurisdiction and transfer the case to i.e., under 17 years of age. The bill result, some prosecutors reportedly juvenile court. The bill also amends creates a new mandatory transfer believe that they can either charge Section 51.03(b) to specify that a provision—under which a juvenile juveniles that engage in this behavior violation of this offense constitutes case manager program is not an with crimes that carry overly harsh conduct indicating a need for exception—which requires the court penalties or enter no charges at all. supervision (CINS). to waive its original jurisdiction and transfer any complaint alleging a S.B. 407 creates a new offense in The bill requires the Texas School sexting offense against a child. Thus, Section 43.261 of the Penal Code Safety Center to develop educational municipal courts may only adjudicate for what is commonly known as programs for use by school districts sexting offenses against minors “sexting.” Under this new law, it is an that address the legal aspects, other that are not children (i.e., 17-year- offense for a minor (defi ned as under consequences, and effects of—and olds). However, as this offense has 18 years of age) to intentionally or the connection between—sexting, received much media attention, many knowingly: (1) promote by electronic bullying, cyber-bullying, and in law enforcement will just know means to another minor visual harassment. this as a Class C misdemeanor and material depicting a minor, including fi le these charges against children in the actor, engaging in sexual For 17-year-old minors, both the the municipal court. The municipal conduct, if the actor produced the promotion and possession offense is court must then waive jurisdiction visual material or knew that another a Class C misdemeanor (maximum and transfer the case to the juvenile minor produced it, or (2) possess fi ne of $500), but the penalties are court, even if the municipal court has in electronic format visual material enhanced for repeat offenses (and a juvenile case manager. depicting another minor engaging in capped at a Class A misdemeanor). sexual conduct, if the actor produced A promotion offense is a Class B Notably, the bill makes Article the visual material or knew that misdemeanor if the minor promoted 45.0215 of the Code of Criminal another minor produced it. Sexual the material with the intent to Procedure requiring a child defendant

Page 30 The Recorder August 2011 to appear in open court with a to a fi rst-degree felony. unfortunate, life-changing situation, parent, also apply to a 17-year-old and thus this offense is rarely defendant who has been charged — Medium Priority — prosecuted by Texas authorities. with a sexting offense. The bill also According to those observers, most cases of smuggling are prosecuted makes the expunction provisions in Subject: Carrying Weapons in by federal attorneys because federal Article 45.0216 apply to a 17-year- Watercraft old who was convicted only once of prosecutors can secure longer H.B. 25 the sexting offense. For purposes of sentences for the crime. H.B. 260 Effective: September 1, 2011 both expunction and enhancement of seeks to remedy this situation by penalties, a fi nding by a juvenile court increasing the penalty for unlawful Under current law, an individual may that the minor engaged in this offense transport of a person. legally carry a fi rearm on their own as CINS is considered a conviction. property including in their own motor Section 20.05 of the Penal Code is vehicle. This bill amends Sections Subject: Offense of Theft of substantially amended to broaden its 46.02 and 46.15(b) of the Penal Services prohibitions on unlawful transport Code, extending the protected scope S.B. 1024 of individuals. The requirement of lawful possession of a fi rearm to Effective: September 1, 2011 that illegal transport be made for include watercraft, as well as land- pecuniary gain is eliminated as is based vehicles, as long as a gun is Theft of wages occurs when the knowledge requirement that the not in plain view and the person is employers fail to pay workers their transportation is substantially likely to not engaged in criminal activity. For promised wages. This is a frequent result in injury or death. In addition to purposes of the Act, a watercraft occurrence in Texas. In certain the existing state jail felony penalty, is defi ned as any vessel used for industries, such as construction, one enhancements are added to make or capable of transportation on the in every fi ve workers experiences the offense a third-degree felony water, except for seaplanes. wage theft. In addition, 50 percent under certain conditions and a new of day laborers have experienced provision is added to make penalties wage theft. The impact of this theft Subject: Creating the Offense of under this section cumulative to other is widespread and has caused many Traffi cking of Persons penalties which may be available. workers to be unable to meet their H.B. 260 family's basic needs. Effective: September 1, 2011 Also, venue under Article 13.12 of the Code of Criminal Procedure, S.B. 1024 addresses instances when Smugglers have been unlawfully for prosecution of an offense of workers receive periodic or partial transporting people across smuggling of persons, is established payment of wages. The bill amends international borders for decades. under the same principles as applied Section 33.02 of the Penal Code Recently, the crime has become more to kidnapping or false imprisonment; to provide that a person commits profi table since some smugglers have an offense may be prosecuted theft of service if, with intent to detained and then extorted additional in any county where an offense avoid payment, that person fails to money from the people they have initially occurred or a person was make full payment after receiving already illegally transported into subsequently taken. notice demanding payment if the United States. Due to the illegal the compensation was to be paid nature of entry into the United Commentary: H.B. 260 cleans up a periodically. The intent to avoid States, fear of the smuggler, and couple of statutes that were muddied payment for a service may be formed fear of deportation, victims are less during the 81st Legislature. Section at any time during or before a pay likely to report smugglers to law 71.02 of the Penal Code, dealing period, and the partial payment of enforcement. Failure to comply with organized criminal activity, wages alone is not suffi cient evidence with a smuggler’s or transporter’s had three different versions after to negate the actor's intent to avoid additional demands often results in the 81st Legislature, but H.B. 260 payment for a service. the smuggled person being beaten, reenacts and amends the section and raped, murdered, or sold into forced adds Section 20.05 to the laundry Commentary: The penalty for labor or the commercial sex trade. list of offenses that could constitute an offense of theft of services is Concerned parties contend that organized criminal activity. Article determined by the value of the Texas law relating to the offense of 59.01 also had multiple versions after services which were received and not unlawful transport of a person does the 2009 Session that are addressed paid for. The penalty for the offense not provide adequate punishment for in H.B. 260. The new Article 59.01 ranges from a Class C misdemeanor smugglers who subject victims to this states that material which is used

Page 31 The Recorder August 201 in the commission of the offense after the service is concluded, is Also new is the requirement under of smuggling of persons may be subject to prosecution for a Class B Section 2051.151 of the Occupations characterized as contraband. misdemeanor. Code that an athlete agent post a $50,000 bond before contacting an Subject: Punishment for the Subject: Regulation of Athlete athlete or entering into a contract with Offense of Employment Harmful to Agents an athlete. Previously, a $100,000 Children H.B. 1123 bond was required only if the H.B. 290 Effective: September 1, 2011 parties were entering into a contract Date: September 1, 2011 involving fi nancial services. The H.B. 1123 seeks to hold athlete agents bonds posted by an athlete agent must It is the state’s responsibility to accountable for their actions. This be maintained for two years following protect and prevent the exploitation bill provides stricter administrative the cessation of agent activities in of children. H.B. 290 creates a and criminal penalties for agents who the state. An agent is also subject to stronger penalty for employing a violate certain regulations and by administrative and criminal penalties minor at a sexually-oriented business requiring an athlete agent to deposit or can be liable in a civil suit from to refl ect the serious nature of such a surety bond with the Secretary of the individual or an adversely employment. State before contacting an athlete or affected institution of higher entering into an agent contract with education following from a breach Section 43.251(c) of the Penal an athlete in Texas. of duty or violation of the rules Code is amended to provide that concerning dealings with athletes. an offense under this section is a The bill establishes signifi cant The bill enumerates new professional Class A misdemeanor. The offense qualifi cation, registration, and obligations of athlete agents and is a state jail felony if it is shown at bonding requirements which must specifi es prohibited conduct. the trial that the defendant has been be completed before an individual previously convicted one time of may engage upon recruitment or Commentary: Of special interest an offense under this section. It is representation activities. Section to criminal courts is the change to a felony of the third degree if it is 2051.001 of the Occupations Section 2051.501 of the Occupations shown at the trial of the offense that Code is amended to provide a Code dealing with criminal the defendant has been previously clearer defi nition of athlete agent. offenses. Previously, it was a Class convicted two or more times of an Under the new defi nition, a person A misdemeanor for an athlete offense under this section. must be certifi ed by a national agent to intentionally or knowingly professional sports organization in violate the chapter or a rule under Subject: Offense of Funeral Service order to receive certifi cation by the the chapter. The revised Section Disruption Secretary of State, unless no national 2051.501 creates two new felonies of H.B. 718 organization exists for the sport in the third degree. Furnishing a thing Effective: September 1, 2011 which the agent performs. If no of value to an athlete or a relative of national organization exists, the agent the athlete before the completion of Section 42.055 of the Penal Code may seek certifi cation as a limited the last intercollegiate sports contest (Funeral Service Disruptions) agent. A revised Section 2051.101 is a third degree felony. An athlete prohibits an individual from picketing of the Occupations Code states a agent also commits a third degree at a funeral service beginning one person who has not been certifi ed felony if the agent commits an act, or hour before the service begins and as a registered athlete agent by the causes a person to commit an act on ending one hour after the service is Secretary of State generally may the agent’s behalf, which causes an completed. Often, services do not not register as a professional athlete athlete to violate a rule of the national commence on time, especially when agent, act as an athlete agent, or association for promotion and a soldier is laid to rest. H.B. 718 hold themselves out as one. Persons regulation of intercollegiate athletics. amends this section to change the who are certifi ed by the Secretary as time from one hour to three hours an athletic agent must comply with Subject: Unauthorized Acquisition for both before the funeral service annual registration and reporting or Transfer of Certain Financial and three hours after the funeral requirements. The bill adds new Information service has been completed. A person language requiring the secretary to H.B. 1215 who pickets within 1,000 feet of a adopt rules ensuring that any contract Effective: September 1, 2011 facility or cemetery during a period used by an athletic agent conforms to of time before commencement of a standards approved by the national Recently, there has been a lot of funeral service, and extending until sports organization. publicity about tactics used by

Page 32 The Recorder August 2011 criminals to obtain personal fi nancial unauthorized acquisition or transfer reported crimes. data without the victim being aware at of certain fi nancial information also the time that the personal information constitutes an offense under another Under the current Section 36.05 of is being stolen. law, the actor may be prosecuted the Penal Code, the intimidation or under either law. coercion of a witness is a state jail The use of sophisticated electronic felony. As such, there is little to deter and digital equipment and telephoto Subject: Online Impersonation a defendant accused of capital murder lenses has become so widespread Offenses or a fi rst degree or second degree that these devices can be accessed H.B. 1666 felony offense from intimidating and used by almost anyone, without Effective: September 1, 2011 a witness who can implicate the detection, to photograph or copy defendant in the offense. information from a person’s check, Currently, Section 33.07(a) of the ATM card, credit card, or debit card Penal Code penalizes only targeted Witnesses of violent crimes are while paying for goods or services harassing conduct committed on already hesitant to come forward to or conducting fi nancial transactions. commercial social networking sites tell the police what they know. This For instance, a person standing close as defi ned under Section 33.07(f)(1). concern is increased when the crime enough to another person in a store Although targeted online harassment involves gang violence or when the checkout line could use a cell phone can occur on other Internet websites, accused is released on bond. to surreptitiously take a photo of conduct committed on those the person’s credit or debit card or websites is currently excluded from The new punishment range in Section check. Some criminals install devices prosecution. 36.05 of the Penal Code for tampering near or on an ATM machine to with a witness corresponds to the retrieve or capture information from The purpose of H.B. 1666 is to retitle most serious criminal offense that is the customer’s use of an ATM card the former Online Harassment offense charged in the case and is the basis without the customer’s knowledge as Online Impersonation, expanding of the intimidation. In non-criminal and consent, thus compromising the the scope of Section 33.07(a). witness tampering cases (e.g., divorce integrity of the customer’s account This now includes targeted online proceedings, probate proceedings, with the fi nancial institution. harassment through impersonation etc.), H.B. 1856 increases the committed not only on commercial offense to a third-degree felony. This H.B. 1215 amends Chapter 31 of the social networking sites, but also on punishment scheme creates a more Penal Code by adding Section 31.17 any other Internet website such as effective deterrent for the offender to create the offense of Unauthorized Craig’s List. and allows the State to better protect Acquisition or Transfer of Certain witnesses to criminal offenses. Financial Information. The bill makes Commentary: The bill makes it a Additionally, H.B. 1856 specifi es that it a Class B misdemeanor for a person third degree felony to impersonate if conduct that constitutes an offense to obtain the fi nancial sight order or another person without their under this section also constitutes payment card information of another permission on any website by posting an offense under any other law, the by use of an electronic, photographic, information or sending messages with offender may be prosecuted under visual imaging, recording, or other the intent to harm, defraud, threaten this section, the other law, or both. device capable of accessing, reading, or intimidate any person. The purpose recording, capturing, copying, of the bill is to close a loophole Subject: Prevention, Prosecution, imaging, scanning, reproducing, or created by the previous statute and Punishment of Traffi cking of storing in any manner the fi nancial that applied to commercial social Persons, Compelling Prostitution, sight order or payment card networking sites, but did not address and Other Related Offenses information, knowing that the person other types of websites. H.B. 2014 is not entitled to obtain or possess Effective: September 1, 2011 the fi nancial information. The bill Subject: Prosecution and makes it a Class A misdemeanor for Punishment for the Offense of H.B. 2014 refl ects the a person to transfer to a third party Tampering with a Witness recommendations in the 2011 Human a fi nancial sight order or payment H.B. 1856 Traffi cking Prevention Task Force card information obtained in that Effective: September 1, 2011 Report that identifi es legislative manner, knowing that the person is changes that will push Texas forward not entitled to obtain or possess the The purpose of H.B. 1856 is to in its efforts to combat human information. The bill specifi es that if provide a better level of protection traffi cking. conduct constituting the offense of to citizens who have witnessed and Page 33 The Recorder August 201 H.B. 2014 amends the Alcoholic is amended to increase the penalty as Group 2. Both S.B. 331 and H.B. Beverage Code, Code of Criminal from a Class A misdemeanor to a 2118 refl ect the ongoing struggle to Procedure, Government Code, and felony of the second degree or a combat synthetic versions of illegal Penal Code provisions relating felony of the fi rst degree if the child substances as they are developed to certain criminal and civil is younger than 14 when the offense and popularized. It is becoming en consequences of traffi cking of is committed. vogue in modern drug culture to persons, compelling prostitution, and abuse substances that are generally certain other related criminal offenses Commentary: This is one of several considered innocuous. Many of and to the prevention, prosecution, bills from this session that deal with your grandmothers used bath salts. and punishment of those offenses. human traffi cking (see also, H.B. Until modern times, it was unheard 2329, H.B. 3000, and S.B. 24). of to smoke bath salts. By banning Article 59.01(2) of the Code of all chemically similar or derivative Criminal Procedure is cleaned up Subject: Addition of Synthetic products, the Legislature is attempting after multiple revisions in the 81st Compounds (“Bath Salts”) to the to head off the development of Legislative Session. Property used Texas Controlled Substances Act chemically distinct, but effectively to, or intended to be used to, facilitate H.B. 2118 identical, substitute products in a traffi cking of persons is added to Effective: September 1, 2011 uniform manner. In cities where the the defi nition of contraband. If the use or sale of “bath salts” has been defendant was arrested for, or charged H.B. 2118 amends Section 481.103 prohibited by ordinance, city offi cials with, traffi cking of persons with the of the Health and Safety Code to will need to consult with their city intent or knowledge that the victim add certain synthetic compounds attorney. Likewise, those cities that would engage in sexual conduct to Penalty Group 2 of the Texas have passed K2 ordinances should (defi ned as sexual performance by Controlled Substances Act. consult with their city attorneys to a child under Section 43.25 of the determine whether the ordinance is Penal Code), information in the The bill expands the list of substances valid. computerized criminal history system included under Penalty Group 2 of must include the age of the victim. the Texas Controlled Substances Act Subject: Continuous Traffi cking of to include compounds and derivatives Persons The Penal Code undergoes some of 2-aminopropanol—a synthetic H.B. 3000 changes as well with the passage of alkaloid not marketed for human Effective: September 1, 2011 H.B. 2014. Section 25.08 specifi es consumption, but is increasingly that the offense of Sale or Purchase found in products marketed as bath Texas acknowledges the severity of of a Child is punishable as a felony salts. These salts, sold under various human traffi cking and acknowledges of the second degree (as opposed to a names for prices in the range of that human traffi cking is frequently felony of the third degree, generally) $300/oz., are subsequently inhaled reported to be the second largest if the actor intended to commit an or injected by users to induce criminal industry in the world. offense of sexual performance by a hallucinations. The product also has Texas fi rst passed legislation that child or any of the newly added trio numerous side effects which can criminalized human traffi cking in of traffi cking of persons, prostitution, cause paranoia and psychosis. Users 2003, making it one of the fi rst states or compelling prostitution. may also exhibit violent outbursts of to do so. behavior and suffer suicidal ideations. The punishment range for prostitution By adding this compound, and any H.B. 3000 adds Section 20A.03 to under Section 43.02 is amended chemical derivatives to the list of the Penal Code creating the offense to provide that an offense is: (1) a controlled substances, the Legislature of Continuous Traffi cking of Persons. Class B misdemeanor generally; (2) is attempting to eliminate commercial The punishment for this offense is a a Class A misdemeanor for a second trade in these products by making felony of the fi rst degree. This will or third offense; (3) a state jail felony their manufacture, distribution, apply to offenders who commit the for a fourth or subsequent offense; possession, and use a punishable offense of Human Traffi cking two or (4) a felony of the third degree if a offense in Texas. more times during a 30 day or more solicited person is between age 14 period of time. and 18; and (5) a felony of the second Commentary: S.B. 331 added degree if the solicited person is Penalty Group 2-A to the Act— Article 12.01 of the Code of Criminal younger than 14 years of age. banning synthetic cannabinoids Procedure is also amended to add Section 43.251(c), regarding (commonly referred to as K2) and continuous traffi cking of persons to Employment Harmful to Children, imposing identical criminal penalties the list of felony indictments that

Page 34 The Recorder August 2011 may be presented with no limitation, Section 508.046 of the Government or if the offender has previously been except as provided in Article 12.03 Code is required—meaning that all convicted of the same offense on two (Aggravated Offenses, Attempt, members of the parole board must or more occasions. The new Section Conspiracy, Solicitation, and vote on the release with at least two- 33.02 creates new penalty ranges for Organized Criminal Activity). thirds voting in favor. Furthermore, a person who accesses a computer a member of the board may not vote system or network with the intent H.B. 3000 amends Section 12.35(c) unless they have received a copy of a to defraud or harm another or alter, of the Penal Code to specify that an written report on the probability that damage, or delete property without individual adjudged guilty of a state the inmate would commit an offense consent. A person has committed: jail felony shall be punished for a after release. a state jail felony if the amount is third degree felony if it is shown at less than $20,000; a felony of the trial that they have been previously Commentary: Other important bills third degree if the amount is $20,000 convicted of continuous traffi cking of relating to human traffi cking include or more but less than $100,000; a persons. H.B. 2014, H.B. 2329, and S.B. 24. second degree felony if the amount is $100,000 or more and less than Articles 17.03 and 17.091 of the Code Subject: Offense of Breach of $200,000, if the amount is less than of Criminal Procedure are amended Computer Security $200,000 and the system is owned to prohibit the release of a defendant H.B. 3396 by the government or a critical on personal bond by a judge or Effective: September 1, 2011 infrastructure facility, or if the actor magistrate before whom the case is obtains the identifying information pending and requires notice of bail A breach of computer security may of another by accessing only one reductions. include obtaining personal identifi ers computer system or network; a felony from a computer system, which is of the fi rst degree if the aggregate An amended, Section 411.1471 of often a precursor to the crime of amount is $200,000 or more or the Government Code requires an identity theft, obtaining access to the actor obtains the identifying indicted person to provide to a law credit card sales logs or employment information of another by accessing enforcement agency one or more applications, and obtaining access to more than one computer system or specimens for the purpose of a DNA a governmental computer network. network. The bill also creates an record. It is often diffi cult to prove the exception in Section 33.02 to the amount of actual monetary damages offense for breaches committed as This bill also adds Continuous resulting from a network intrusion. part of legitimately authorized law Traffi cking of Persons to the list of H.B. 3396 seeks to address this issue enforcement operations. crimes in Section 12.42 of the Penal by providing enhanced penalties for Code that are eligible for automatic Breach of Computer Security offenses Subject: Traffi cking of Persons and life without parole sentencing for that involve computers owned by Compelling Prostitution subsequent convictions. Furthermore, the government or certain public S.B. 24 an inmate now charged with human and private utilities considered to be Effective: September 1, 2011 traffi cking is not eligible for: (1) critical infrastructure facilities. mandatory community supervision Human traffi cking is the illegal trade under Section 508.149, (2) intensive H.B. 3396 adds defi nitions of of human beings and is a modern-day supervision programs under Section “Critical Infrastructure Facility” form of slavery. Human traffi cking 499.027, or (3) diversion to a halfway and “Identifying Information” is a criminal enterprise frequently house under Section 508.151(a) of the to Section 33.01 of the Code of cited as the second-largest criminal Government Code. Criminal Procedure for the purpose industry in the world. of prosecuting breaches of computer Under Section 508.145 of the security. In 2009, the Texas Legislature created Government Code, an inmate charged a statewide Human Traffi cking with an offense under Section 20A.03 Under the current Section 33.02 Prevention Task Force (task force) of the Penal Code, is not eligible for of the Penal Code, the offense housed in the Offi ce of the Attorney parole until the actual calendar time of breaching computer security General (OAG) to develop policies served equals the lesser of one-half is a Class B misdemeanor, but is and procedures to assist in the the sentence or 30 years. Before enhanced to a state jail felony if the prevention and prosecution of human an inmate convicted of Continuous target of the breach fi ts the provided traffi cking crimes. Traffi cking may be released on defi nition of a critical infrastructure parole, an extraordinary vote under facility, is owned by the government, The 2011 Texas Human Traffi cking

Page 35 The Recorder August 201 Prevention Task Force Report was traffi ckers by adding human a “scheme or course of conduct” on released by the OAG and included traffi cking offenses to the list of more than one occasion, that the actor legislative recommendations common nuisances in Section knows or reasonably believes will agreeable to all 47 task force 125.0015 of the Civil Practice and cause the victim fear of bodily injury members. Remedies Code. to the victim or to the victim’s family or of damage to the victim’s property. S.B. 24 amends current law relating Article 6 amends Section 3.03 of to the prosecution, punishment, the Penal Code allowing sentences A fi rst stalking offense is a third and certain criminal and civil for human traffi cking offenses to be degree felony and any repeat consequences of offenses involving stacked at the discretion of a judge. conviction is a second degree felony. or related to the traffi cking of persons Section 15.031 of the Penal Code Stalking convictions in other states and to certain protections for victims is amended to include Compelling or under federal law are not currently of those offenses. Prostitution and certain types of addressed in current law, but S.B. 82 Traffi cking of Persons to the list amends Section 42.072 of the Penal Commentary: S.B. 24 is a lengthy of intended crimes that can lead to Code to provide that a conviction bill consisting of seven articles Criminal Solicitation of a Minor. of an offense under the laws of spanning 60 pages. A very brief Article 6 also amends Section another state, the laws of a federally summary of the pertinent articles 21.02(c) of the Penal Code expanding recognized Indian tribe, the laws follows. the scope of an “act of sexual abuse” of a territory of the United States, to include Traffi cking of Persons or federal law that is substantially Article 1 of S.B. 24 amends Chapter under Section 20A.02(a)(7) or similar to a Texas stalking offense 20A (Traffi cking of Persons) (8), and Compelling Prostitution will count as a prior conviction. of the Penal Code by adding or under Section 43.25(a)(2). Finally, altering the defi nitions of “child,” the offense of Aggravated Sexual Current law does not guarantee “sexual conduct,” and “traffi c” and Assault (a felony of the fi rst degree) victims the right to offer court redefi ning “forced labor or services” is amended in Section 22.021 to testimony about their relationship in Section 20A.01. Section 20A.02 incorporate many of the newly added with the alleged offender. As a result, (Traffi cking of Persons) of the Penal Traffi cking of Persons crimes. juries and judges do not always Code is expanded to include many have a clear picture of why a certain new ways to commit the crime of Subject: Prosecution of Stalking course of conduct caused the alleged Traffi cking of Persons. Generally, S.B. 82 victim fear. Article 38.46 of the Code an offense under Section 20A.02 is Effective: September 1, 2011 of Criminal Procedure is amended a felony of the second degree, but to ensure that stalking victims are the new subsections (5)-(8), relating S.B. 82 seeks to protect victims of permitted to give testimony in court to traffi cking with the intent that stalking by modifying the statutory about his or her relationship with an the child engage in forced labor or defi nition in Section 42.072 of alleged perpetrator. S.B. 82 makes services or traffi cking that causes the Penal Code. This change also clear that the testimony allowed “shall a child to engage in or become the acknowledges that stalking is not not be construed to allow character victim of prohibited sexual conduct, limited to one type of repeated evidence that would otherwise be are fi rst degree felonies. Under the stalking behavior, but that offenders inadmissible” under the state and amended Section 43.05 of the Penal use a number of tactics to induce fear federal Rules of Evidence. Since Code, the penalty for compelling in their victims. For example, many stalking behavior can often seem prostitution of a child is increased to a stalkers target their victim’s intimate innocuous to a juror unless placed in fi rst degree felony. partner and S.B. 82 incorporates this the context of a victim’s history with type of behavior in the defi nition a stalker, this testimony is critical in Article 2 makes changes to Chapter of stalking. S.B. 82 preserves the seeking a stalking conviction. 7A of the Code of Criminal Procedure requirement that a court must allowing a parent or guardian, acting determine that an alleged stalking Subject: Fraudulent or Unlawful on behalf of a minor who is a victim offender intended to cause fear to Obtaining, Delivering, Dispensing, of human traffi cking, to fi le for a a victim regardless of the stalking Distributing, or Diverting of a protective order against the traffi cker. behavior. Controlled Substance No changes are made to magistrates S.B. 158 orders for emergency protection. Under Section 42.072 of the Penal Effective: September 1, 2011 Code, an individual commits the Article 3 adds a tool to combat offense of stalking by engaging in The abuse of prescription drugs is a

Page 36 The Recorder August 2011 serious public health issue and the murder of a child whose age is less person because of its labor intensity. increasing diversion of prescription than 10 automatically qualifi es as Because of the way this crime is drugs is a cause for concern. One capital murder. committed, the perpetrator(s) may be of the causes of diversion is doctor charged with a variety of offenses. shopping. Doctor shopping is Subject: Evading Arrest or For example, the perpetrator could be typically defi ned as a patient actively Detention by Watercraft charged with criminal mischief due seeking doctors who will prescribe S.B. 496 to signifi cant property damage or be certain types of medications, usually Effective: September 1, 2011 charged with the theft of the money opiates, depressants, and stimulants. from the ATM. S.B. 887 seeks to Fifteen other states currently have The Texas Penal Code states that remedy the offense’s inconsistencies legislation that specifi cally addresses evading arrest by use of a watercraft related to this crime by making any the problem. carries a maximum penalty of a Class ATM theft under Section 31.03 of A misdemeanor, while evading arrest the Penal Code, including theft of its S.B. 158 amends Section 481.129 through use of a motor vehicle is a contents and components, at least a of the Health and Safety Code state jail felony offense under Section second degree felony. making it either a felony or a Class A 38.04 of the Penal Code. misdemeanor for patients who visit Commentary: The stated intent multiple practitioners to not disclose In the last two years, the Texas Parks of the bill’s author is to create that they are already receiving and Wildlife Department reported 17 uniformity to the prosecution of controlled substances. In other words, instances of evading arrest through the offense of ATM theft. Apart a person commits an offense if they use of a watercraft within the state’s from creating a specifi c defi nition have intent to obtain controlled waterways. There is concern among of a device and imposing a specifi c substances—that are not medically law enforcement that differing penalty, the bill’s language has the necessary for the person—using penalties for similar crimes have effect of operating as a penalty misrepresentation, fraud, forgery, created a perception of an acceptable enhancement for offenses directed at deception, subterfuge, or concealment risk for offenders considering evading an ATM. The offense of ATM theft is of a material fact. arrest. The reality is that the risks chargeable as a second degree felony posed to law enforcement, as well as where the value of the item is less S.B. 158 also amends Section the public, are no less lethal when a than $200,000 but no lower limit is 481.1285 of the Health and Safety criminal offender chooses to run from set on the offense. ATM-related thefts Code making it an offense applicable law enforcement through use of a which previously may only have to registrants, dispensers, and certain watercraft, rather than through the use constituted a misdemeanor or a lesser other people who have access to of a motor vehicle. felony offense must now be charged controlled substances by virtue of as felonies of the second degree. their profession. Those with such S.B. 496 amends Section 38.04 of the Since the statute also applies to theft access commit a state jail felony if Penal Code relating to the punishment of the contents or components of an they convert the controlled substance for evading arrest or detention by ATM machine, it is possible that an to their own use or benefi t and a contemplating the use of a watercraft offender, who previously might have felony of the third degree if the during evasion. Using a watercraft faced a Class C misdemeanor charge, substance is diverted to the unlawful to evade arrest is now treated in the will now be subject to a far harsher use or benefi t of another person. same manner as using a vehicle to penalty. In the event that a theft is evade arrest. valued at more than $200,000, there Subject: Altering Capital Offense is no language restricting the offender Status for the Murder of a Child Subject: Creating the Offense of from being charged with fi rst-degree S.B. 377 Theft of an ATM theft. Effective: September 1, 2011 S.B. 887 Effective: September 1, 2011 Subject: Criminal Penalty for the To bring Texas closer in line with Discarding of Certain Burning other states that have an age-based Automated teller machine (ATM) Materials trigger for capital murder charges, theft, a relatively new crime, is S.B. 1043 S.B. 377 amends Section 19.03(a) increasing in frequency around the Effective: September 1, 2011 (8) of the Penal Code to raise the state. There were more than 100 threshold age of the victim that instances in Texas in the past year Drought conditions increase the risk supports a capital murder charge. The alone. It is also a crime that may for wildfi res, and extreme fi re seasons prior age of six is raised so that the typically involve more than one have been designated in Texas in the

Page 37 The Recorder August 201 last several years. Human factors result of dropping lit materials, the law. also contribute signifi cantly to the defendant can only be prosecuted number of wildfi res according to for Illegal Dumping. The bill also S.B. 1416 amends Section 46.01 the Texas Forest Service. Wildfi res mandates that if an offense can be (Defi nitions) of the Penal Code, pose a grave danger to residential prosecuted as either Discarding adding Subdivision (17) to defi ne a areas, and interested parties note that Lighted Materials or Illegal Dumping, “tire defl ation device.” It makes “tire highway and roadside areas are also the case must be prosecuted as defl ation device” a prohibited weapon particularly susceptible to fi re and Discarding Lighted Materials. under Section 46.05 (Prohibited human misconduct. According to Does this push the boundaries of Weapons) of the Penal Code. It also the Texas Department of Insurance, separation of powers? Supporters of amends current law relating to the smoking materials and discarded prosecutorial discretion and criminal creation of the offense of possession, matches caused nearly 3,000 outdoor defendants who set things ablaze manufacture, transportation, repair, fi res in 2008 alone. A wildfi re can need not fret. If conduct constitutes or sale of a tire defl ation device and start and spread quickly after a person Discarding Lighted Materials provides criminal penalties. discards a burning match or cigarette. or Arson, the defendant can be prosecuted under either law, but not Commentary: Notably, S.B. 1416 S.B. 1043 seeks to address these both. exempts traffi c control devices that issues by creating a criminal penalty are commonly used in parking lots for the discarding of lighted litter Subject: Creating the Offense and visibly marked with warning (e.g., a match, cigarette, or cigar) of Possession of a Tire Defl ation signs from the scope of the offense. under Section 365.012 of the Health Device Under Section 46.05 of the Penal and Safety Code. S.B. 1416 Code, possession, manufacture, Effective: September 1, 2011 or sale of tire-defl ating devices is Commentary: This bill amends punishable as a state jail felony. the existing offense of Illegal Recently, when in pursuit of suspects, Section 38.04 of the Penal Code Dumping. However, as amended, law enforcement offi cials in South (Evading Arrest or Detention) is if a fi re is ignited as a result of a Texas have had to deal with suspects amended to make the use of such a person discarding lighted materials, throwing “tire defl ation devices” at device in an attempt to evade law the person commits the offense of law enforcement offi cials’ vehicles— enforcement a third-degree felony. Discarding Lighted Materials and evading arrest as a result. These Where death or serious bodily injury faces a fi ne not to exceed $500, home-made tire spikes are a threat results from the use of a tire-defl ating confi nement in jail for up to 30 to law enforcement and the general device, it is a second-degree felony. days, or both (i.e., it is a Class B public, but the possession of such misdemeanor). If no fi re ignites as a devices is currently not against the

In Appreciation

The following persons served as faculty members for the August TMCEC Legislative Update programs, offered in Lubbock, Houston, and Austin.

Mark Goodner, Austin Stewart Milner, Arlington Robin Ramsay, Denton Eric Ransleben, Town of Trophy Club Cathy Riedel,Austin Edward Spillane, City of College Station Katie Tefft, Austin Ryan Kellus Turner, Austin

Their participation is greatly appreciated! Hope Lochridge,TMCEC Executive Director

Page 38 The Recorder August 2011 New Ways to Commit Old Crimes

CODE CHANGE PENALTY Circling a motorboat around a personal watercraft or person Parks and Wildlife Code Parks and Wildlife waterskiing (in addition to the previously covered watercraft) (H.B. Class C misdemeanor Code Sec. 31.099 596) ($25 - $500) Penal Code Sec. Criminal solicitation of a minor with intent to compel prostitution or One degree lower than intended 15.031 commit certain types of traffi cking crimes (S.B. 24) crime Aggravated sexual assault involving a fear that the victim or another Penal Code Sec. person will become the victim of a traffi cking crime involving First degree felony 22.021 certain prohibited conduct (S.B. 24) Penal Code Sec. Funeral service disruptions (changes from one to three hours before Class B misdemeanor 42.055 or after) (H.B. 718) Transportation Code Must register vehicle within 30 days of purchase or becoming a $0 - $200 Sec. 502.002 Texas resident (prior law had no time limit) (H.B. 2017) $1-$200; $500 fi ne if the violation Transportation Code Must slow down or move over when passing a stationary tow truck results in property damage; Class B Sec. 545.157 (in addition to passing an emergency vehicle) (H.B. 378) misdemeanor if the violation results in bodily injury Class C misdemeanor if damage Transportation Code Duty to report collision with a structure adjacent to a highway (in less than $200; otherwise, Class B Sec. 550.025 addition to fi xture or landscaping) (H.B. 42) misdemeanor Transportation Code Displaying an altered genuine disabled parking placard (H.B. 1473) Class C misdemeanor Sec. 681.0111 Transportation Code Altering a genuine disabled parking placard (H.B. 1473) Class A misdemeanor Sec. 681.0111 NEW PUNISHMENTS FOR OLD CRIMES

CODE OFFENSE OLD PENALTY NEW PENALTY Penal Code Sec. Compelling prostitution of a child Second degree felony First degree felony 43.05 (S.B. 24) Penal Code Sec. Traffi cking of persons (can also lead to Second degree felony First degree felony 15.031, 43.05 criminal solicitation of a minor) (S.B. 24) Penal Code Sec. Capital offense status for the murder Capital murder Raises the threshold age of the victim 19.03(a)(8) of a child (S.B. 377) from six to 10 to qualify for capital murder Penal Code Sec. Smuggling of persons for pecuniary State jail felony Third degree felony 20.05 benefi t or with a substantial likelihood of serious bodily injury or death (H.B. 260) Penal Code Sec. Traffi cking of persons (related to Second degree felony First degree felony 20A.02 traffi cking a child with intent that the child engage in forced labor or traffi cking that causes a child to engage in or become a victim of prohibited sexual conduct) (S.B. 24) Penal Code Sec. Theft of an ATM (S.B. 887) Variety of offenses Second degree felony; fi rst degree felony 31.03 (if more than $200k) Penal Code Sec. Breach of computer security (H.B. Class B misdemeanor Enhanced to state jail felony under certain 33.02 3396) circumstances

Page 39 The Recorder August 201 NEW PUNISHMENTS FOR OLD CRIMES Continued

CODE OFFENSE OLD PENALTY NEW PENALTY Penal Code Sec. Breach of computer security with intent Class B misdemeanor Class A (< $20k); Third degree felony ($20k 33.02 to defraud or harm another or alter, - $100k); Second degree felony ($100k - damage, or delete property without $200k); First degree felony ($200k plus or if consent (H.B. 3396) more than one computer is accessed) Penal Code Sec. Tampering with a witness (H.B. 1856) State jail felony Corresponds to the most serious criminal 36.05 offense) (criminal cases); Third degree felony (non-criminal cases) Penal Code Sec. Evading arrest or detention on watercraft 38.04 (S.B. 496) Class A misdemeanor State jail felony offense Penal Code Sec. Employment of a minor at a sexually- Class A misdemeanor Class A misdemeanor; but enhanced to a 43.251(c) oriented business (H.B. 290) state jail felony if previously convicted once; third degree felony if convicted two or more times Penal Code Sec. Employment harmful to children (H.B. Class A misdemeanor Second degree felony; First degree felony if 43.251(c) 2014) child is younger than 14 Transportation Failure to carry and display driver’s Charged as two separate Class A misdemeanor (if serious bodily Code Sec. license without maintaining fi nancial fi ne-only misdemeanors injury or death of another person) 521.025 responsibility (S.B. 1608)

New Clas C/Fine-only Offenses

CODE OFFENSE PENALTY Code of Crim. Proc. Art. Knowingly disclose the true identity of a victim identifi ed Class C misdemeanor 57D.03(d) by a pseudonym (H.B. 2329) Health and Safety Code Prohibition against glass containers near certain riverbeds Class C misdemeanor Sec.365.035 (H.B. 218) Occupations Code Installing an irrigation system without a license (H.B. 2507) Class C misdemeanor Sec.1903.256 Class C misdemeanor to fi rst degree felony Penal Code Sec. 33.02 Theft of services (wages) (S.B. 1024) (depending on value of services)

Class C misdemeanor (promotion and Electronic transmission of certain visual material depicting possession); Class B (promotion offense if Penal Code Sec. 43.261 minors by minors (“sexting”) (S.B. 407) done with intent to harass, etc.); capped at Class A (repeat offenses)

Transportation Code Sec. Erecting or maintaining an off-premise sign on a rural road $500 - $1000 (each day is a separate offense) 394.0201 without a license (S.B. 1420) Transportation Code Sec. Failure to pay penalty for improper exit, entrance, or Class C misdemeanor 425.0613 operation in an HOV lane after 30 days (S.B. 990)

Transportation Code Sec. Pulling a boat or watercraft on or in which a person under $1 - $200 fi ne 545.4145 18 is riding (H.B. 2981)

Using, attempting to use, installing, operating, or Transportation Code Sec. attempting to operate a radar interference device in a motor Class C misdemeanor 547.616 vehicle (but not mere possession) (H.B. 1116) Class B misdemeanor, but a Class C if a Transportation Code Sec. Fraudulent emissions inspection of motor vehicles (S.B. person knowingly bypasses a fuel cap test 548.6035 197) only Violating locally enforced motor vehicle idling limitations Class C misdemeanor (but there is a clean Water Code Sec. 7.1831 (H.B. 1906) idle exception)

Page 40 The Recorder August 2011 NEW CLASS A and B MISDEMEANORS; NEW FELONY OFFENSES

CODE OFFENSE PENALTY Health and Safety Code Discarding of lighted litter (S.B. 1043) Class B misdemeanor Sec. 365.012 Adds the manufacture, sale, and possession and use Health and Safety Code Ranges depending amount of the of synthetic cannabinoids (including K2) to Group Sec. 481.1031 substance possessed (penalty group 2-A) 2-A (S.B. 331) Health and Safety Code Adds the manufacture, sale, and possession and use of Ranges depending amount of the Sec. 481.1031 “bath salts” to (H.B. 2118) substance possessed (penalty group 2-A) Health and Safety Code Converting a controlled substance to their own use or State jail felony Sec. 481.1285 benefi t (S.B. 158) Health and Safety Code Diverting a controlled substance to the unlawful use Third degree felony Sec. 481.1285 or benefi t of another person (S.B. 158) Fraudulent or unlawful obtaining, delivering, Health and Safety Code dispensing, distributing, or diverting of a controlled Felony or Class A misdemeanor Sec. 481.129 substance (S.B. 158) Athlete agents who furnish a thing of value to an Occupations Code Sec. athlete; athlete agent causes an athlete to violate a rule Third degree Felony 2051.501 (H.B. 1123) Penal Code Sec. 20A.03 Continuous traffi cking of persons (H.B. 3000) First degree felony Class B misdemeanor; (transferring the Unauthorized acquisition or transfer of certain Penal Code Sec. 31.17 information to a 3rd party makes it a Class fi nancial information (H.B. 1215) A misdemeanor) Third degree felony (1st offense); second Penal Code Sec. 42.072 Stalking (S.B. 82) degree felony (repeat offense(s)) Class C misdemeanor (promotion and Electronic transmission of certain visual material possession); Class B (promotion offense if Penal Code Sec. 43.261 depicting minors by minors (“sexting”) (S.B. 407) done with intent to harass, etc.); capped at Class A (repeat offenses) Transportation Code Sec. Fraudulent emissions inspection of motor vehicles Class B misdemeanor (Class C if a person 548.6035 (S.B. 197) knowingly bypasses a fuel cap test)

In Recognition

The following TMCEC staff members and interns worked many long hours preparing this issue of The Recorder.

Elizabeth Angelone Cielito “Sky” Apolinar R. Christopher Baker Mark Goodner Scott Hume Cathy Riedel Katie Tefft Patty Thamez Ryan Kellus Turner

Their work is greatly appreciated! Hope Lochridge, TMCEC Executive Director

Page 41 The Recorder August 201 ORDINANCE AND LOCAL GOVERNMENT ISSUES

— High Priority — enforcement agencies to storage fees, relating to the idling of motor and in Section 683.015 allowing vehicles and provides a criminal Subject: Ownership of Wrecked, agencies to recoup the cost of the penalty. H.B. 1906 seeks to establish Abandoned, or Inoperable Vehicles, auction; any towing, preservation, or a reasonable penalty for locally Watercraft, Aircraft, and Motors storage fees; and the cost of required enforced, heavy-duty vehicle idling H.B. 787 notice or publication. violations in unincorporated areas Effective: September 1, 2011 in order to foster more effi cient This bill also amends the Texas Parks enforcement. Such enforcement can Currently, a law enforcement and Wildlife Code to authorize the reduce ozone-forming emission, agency has the authority to take an Texas Parks and Wildlife Department improve air quality, and benefi ts the abandoned motor vehicle, watercraft, to handle abandoned watercraft and citizens of Texas. or outboard motor into custody vessels through the bonded title and provide for the public sale of process. Commentary: This much is clear: the property if the current owner this bill adds Section 7.1831 to the fails to claim the property. An Commentary: The bill adds the Water Code, creating a new Class abandoned aircraft, however, is not defi nition of “abandoned vessel or C misdemeanor for violating a rule included among the motor vehicles outboard motor” to Section 31.003 against vehicle idling adopted by authorized to be taken into custody. of the Parks and Wildlife Code. It TCEQ. Ostensibly, the Legislature’s Like abandoned motor vehicles and additionally adds Section 31.0466, goal in enacting this new section is watercraft, abandoned planes and permitting a landowner who fi nds to make it easier for municipalities other aircraft are nuisances and the abandoned vehicles or motors on their and counties to enter into agreements sites on which the craft is located can property to post a bond and apply for with TCEQ, whereby rules to prevent become a junkyard if the vessel is a certifi cate of title which becomes air pollution could be enforced by not disposed of in a timely manner. fi nal after three years if the original local law enforcement. Under the These sites are often located near a owner does not reclaim ownership. provision, TCEQ may enact a rule residential community; consequently prohibiting the idling of certain heavy devaluing residential property. The amended defi nition in the vehicles, and local offi cials will amended Section 683.071 of the have authority to issue citations for H.B. 787 seeks to remedy this Transportation Code harmonizes with violations. situation by adding "aircraft" to the language in H.B. 1376, which What is less than clear is how Section 683.011 of the Transportation provides a defi nition for junked this bill relates to the authority of Code, now authorizing law vehicles. municipalities to pass ordinances enforcement to take abandoned Subject: Local Enforcement of addressing the same subject matter. aircraft into custody. This bill TCEQ Idling Regulations The preceding bill analysis makes also amends the "junked vehicle" H.B. 1906 references to “county governments” defi nition to include aircraft and Effective: September 1, 2011 and “unincorporated areas.” Yet, watercraft, and permits the public there is nothing in Section 7.1831 sale of an abandoned aircraft under Interested parties observe that state stating that it cannot be enforced Section 683.014. Section 683.012 regulatory law provides for local by municipal governments in is also amended to require a law enforcement of heavy-duty idling incorporated areas. Combine this bill enforcement agency to notify each limitations in any city or county with S.B. 493, which changes state lienholder of the abandonment. that enters into a memorandum of law to allow vehicles meeting certain Before sending this notice, however, agreement for that purpose with the omission standards to be exempt from the law enforcement agency must Texas Commission on Environmental idling ordinances, and there is good attempt to identify the owner of the Quality (TCEQ). Critics of this reason to be uncertain of the authority aircraft by contacting the Federal arrangement observe that the state's of municipal governments to regulate Aviation Administration or the heavy-duty idling regulation does the idling of motor vehicles. Secretary of State for the aircraft. not provide an adequate enforcement Further conforming changes are made mechanism for county governments. Subject: Enforcement of Fire and in Section 683.014 adding aircraft Safety Standards at Child-Care to the list of vehicles that entitle law H.B. 1906 amends current law Facilities Page 42 The Recorder August 2011 H.B. 3547 Week. truck drivers to take periodic rest Effective: September 1, 2011 breaks. During many months of the Subject: Making a Nuisance year in Texas, it is impossible for a H.B. 3547 provides local offi cials Property Subject to Action in Rem driver to get the rest he or she needs the ability to inspect and enforce S.B. 173 without air conditioning or heat. state law and rules regarding fi re Effective: September 1, 2011 Trucks not equipped with auxiliary safety standards at a licensed group power units (APU) must idle in order day-care home or registered family Health and safety violations in to run these environmental systems. home. Additionally, the bill requires multi-family and single-family local offi cials to report any violations rental properties have increased Great strides are being made observed to the Health and Human in recent years. Although many by the heavy-duty truck engine Services Commission. municipalities have increased manufacturers to build cleaner enforcement actions against those engines. Some states, and the U.S. The bill amends Subchapter C, properties that habitually violate Environmental Protection Agency, Chapter 42 of the Human Resources habitability standards, loopholes are recognizing these efforts and are Code, by adding Section 42.04431 within existing statutes have allowed certifying some engines as "clean to permit a municipality to enforce property owners to avoid these idle" engines if they emit no more state laws and rules regarding fi re penalties by transferring the property than 30 grams of nitrogen oxide safety standards and equipment in to other entities. S.B. 173 closes these emissions per hour when idling. group day-care homes. The purpose loopholes by to ensure that actions This standard is so rigorous that of the changes is to prevent situations required by a municipality to remedy even California, home to the nation's where local offi cials may be aware code violations are not nullifi ed upon most stringent air quality standards, of violations of safety standards sale. allows trucks with clean idle engines but lack the authority to enforce the to idle at any time. Moreover, the standards. Under the new language, Specifi cally, S.B. 173 amends Section federal government allows a motor local authorities may enforce the 54.018 of the Local Government vehicle with an APU to carry an state regulations and shall report any Code to authorize municipalities additional 400 pounds total in gross, violations they fi nd to the Health and to pursue penalties for violations axle, tandem, or bridge formula Human Services Commission. of municipal ordinances in rem weight limits provided the APU is (i.e., a lawsuit against the building operational. Subject: Municipal Courts Week itself, rather than a person), so 2011 that any court-ordered judgments S.B. 493 amends current law by H.R. 1486 pertain to the structure, not the allowing the "clean idle" engines Effective Date: May 19, 2011 property owner. It also expands to idle as an exception to the rules the ability of a municipality to relating to the idling of motor Municipal courts are the courts most pursue the appointment of a vehicles. routinely experienced by Texans and receiver for those properties that could be said to constitute the area habitually receive citations for Commentary: This bill was of government that is closest to the violating municipal health and necessary because Section 382.0191 greatest number of Texas citizens. safety ordinances. Finally, S.B.173 of the Health and Safety Code Our municipal courts provide a local aligns receivership provisions for relating to the idling of motor forum where questions of law and all properties by allowing a court to vehicles while using sleeper berths fact can be resolved with respect appoint an individual or a nonprofi t expired on September 1, 2009. This to alleged state law and municipal organization with a demonstrated bill replaces the expired section. ordinance violations. The municipal record of rehabilitating properties While municipalities have the courts play a vital role in preserving as a receiver—similar to the current authority to adopt ordinances relating public safety, protecting the quality authority granted to municipalities for to the abatement of air quality of life in Texas communities, and historic properties. nuisances (see, Section 382.113 of deterring future criminal action. the Health and Safety Code), such Subject: Idling of Oversize or ordinances must be consistent with The Texas Legislature recognizes Overweight Motor Vehicles both administrative rules passed the important work of the Municipal S.B. 493 by the Texas Commission on Courts in our state and resolves Effective: June 17, 2011 Environmental Quality and state law. that November 7–11, 2011 will be Cities with ordinances regulating recognized as Municipal Courts Federal law requires commercial the idling of motor vehicles while

Page 43 The Recorder August 201 using sleeper berths will have to challenges dealing with a growing contract with each other for long-term review such ordinances in light of number of abandoned homes projects such as the construction of the new Section 382.0191 and the and buildings. These abandoned infrastructure. amendment to Section 622.955 of the structures are an eyesore to Transportation Code. communities and create opportunities S.J.R. 26, in conjunction with the for undesirable activities such as drug enabling legislation S.B. 760, would — Medium Priority — manufacturing. They also present allow cities and counties to enter into health and safety concerns caused contracts for longer than one year Subject: Clarifi cation of Defi nition by pests and rodents, collapsing without that contract automatically of Junked Vehicle buildings, and possible fi re dangers. constituting a debt. This would give Many of these communities would local governments the fl exibility H.B. 1376 like to take action and demolish these to consolidate more projects and Effective: September 1, 2011 structures. However, demolition of services, reduce duplication of efforts, a structure is costly and results in and reduce costs to taxpayers. H.B. 1376 amends current law debris that is regulated as municipal relating to the defi nition of a junked solid waste. This creates further Commentary: S.B. 760, a bill vehicle for purposes of abatement challenges, including the cost of authorizing municipalities and county of a public nuisance. Current statute transportation to an approved landfi ll governments to enter into interlocal concerning classifying a vehicle and the disposal of the waste. agreements for terms longer than a as “junk” is ambiguous and often year, is dependent upon the outcome interpreted differently by various of this referendum. If the amendment municipalities. H.B. 1376 offers S.B. 1258, amending Section 361.126 is approved, then S.B. 760 will clarifi cation to refl ect what many of the Health and Safety Code, go into effect. Otherwise, local municipalities already believe the grants the Texas Commission on governments will still be required to intent of the law is by amending the Environmental Quality the authority renew interlocal agreements on an language regarding the display or to adopt rules to create a process for annual basis. lack of a license plate or inspection the issuance of a permit authorizing certifi cate. a city or county with a population of 10,000 or less to dispose of Commentary: It is once again time demolition waste from an abandoned The Texas Municipal for your city to update its junked building or building found to be a nuisance. Courts Education Center vehicle ordinance to track state law. frequently sends out This bill amends Section 683.071 of the Transportation Code to provide Subject: Authorizing Interlocal important information that a “junked vehicle” means a Agreements for More Than a Year via e-mail. In FY 12 vehicle that is self-propelled and S.J.R. 26; S.B. 760 Effective: November 8, 2011, seminar confi rmation (1) displays an expired license plate letters will be sent out or invalid motor vehicle inspection if constitutional amendment certifi cate or (2) does not display is approved by voters through by e-mail only - not by a license plate or motor vehicle referendum on that date U.S. Mail. To ensure you inspection certifi cate. Texas Constitution, Article 11, receive this information Subject: Disposal of Demolition Sections 5 and 7, have been in a timely manner, Waste from Nuisance Buildings by interpreted in a manner that impedes please keep your e-mail Cities with Population of 10,000 or the ability of cities and counties address current with to jointly administer programs Less us. To submit or update S.B. 1258 or provide services. Currently, a Effective: May 17, 2011 contract entered into by a local your e-mail information, government that is longer than one please contact Pat Ek, S.B. 1258 amends current law year constitutes a debt, requiring the Registration Coordinator, relating to the disposal of demolition imposition of a tax and the creation waste from abandoned or nuisance of a sinking fund, i.e., a means of at 512.320.8274, or ek@ buildings in certain areas. repaying funds that were borrowed tmcec.com. through a bond issue. This has limited Rural Texas communities are facing the ability of local governments to

Page 44 The Recorder August 2011 JUVENILE JUSTICE AND ISSUES RELATING TO CHILDREN

— High Priority — of age is assessed a fi ne or costs for the supervision of a middle school a Class C misdemeanor that occurred or high school coach - now result Subject: Discharging Fines and in a building or on the grounds of the in criminal prosecution, criminal Costs Assessed Against Juvenile primary or secondary school at which records, and millions of dollars Defendants Through Tutoring the defendant was enrolled at the in fi nes and hefty court costs being H.B. 350 time of the offense. See the other new imposed against children ages 10 Effective: September 1, 2011 Article 45.0492 established by H.B. through 16. This shift has been 1964. referred to as “passing the paddle.” Data from the Offi ce of Court In the past year or two, efforts have Administration reveals that almost Subject: Disciplinary Methods in mounted to reverse this trend so that 300,000 Class C misdemeanors Public Schools and the Prosecution fewer children will be treated as citations were issued in fi scal year of Children for School-related criminals for commonplace school 2009 to juveniles in Texas. Children Offenses misbehavior. as young as 10 years old have H.B. 359 received Class C misdemeanors Effective: September 1, 2011 H.B. 359 creates “exceptions to citations at school. The vast majority the application” of the offenses of H.B. 359 amends current law of such citations were written for Disruption of Classes and Disruption relating to discipline in public low-level, nonviolent behavior. of Transportation under Sections schools including the use of corporal 37.124 and 37.126 of the Education punishment and the prosecution of Code if the person engaged in the Under current law, juveniles in Texas certain children for school-related prohibited conduct was a student in may receive Class C misdemeanor offenses. the sixth grade or lower at the time. citations for behavior ranging from Similar language is added to Section disrupting class to truancy. A juvenile Currently, provisions for discipline 42.01 of the Penal Code stating that and the juvenile's parents must and law and order relating to behavior fi ve subsections describing types appear in court to resolve a Class C management in the public school of Disorderly Conduct (involving misdemeanor by paying applicable system leave corporal punishment language, gestures, odors, noise, and fees and fi nes and are sometimes policies to the discretion of the school fi ghts) “do not apply” if the person required to miss more school and district. In some districts, parents are engaged in the conduct was a student work, respectively, by making such not provided the opportunity to refuse in the sixth grade or lower at the an appearance in court. There is the use of corporal punishment for time of the conduct and the conduct currently no statutory language their children—meaning the parents' occurred at a public school during that expressly authorizes academic only option is to remove a child from school hours. There is no similar enrichment in satisfaction of a fi ne the school that administers corporal exception for disorderly conduct or in order to supplant any classroom punishment without parental consent. offenses involving abuse, threats, and instruction that may have been lost the discharging of a fi rearm. as a consequence of disciplinary H.B. 359 seeks to remedy this proceedings. situation by adding new requirements Currently, municipal courts see regarding the use of corporal children for Class C misdemeanors Commentary: H.B. 350 is one of punishment in the discipline of a who are as young as 10. For offenses two bills to add Article 45.0492 to student under Chapter 37 of the addressed in H.B. 359, municipal the Code of Criminal Procedure. Education Code. courts should not be seeing children Under the new law, in addition to who have not yet reached the seventh allowing children convicted of Class Commentary: In a little over grade. It remains to be seen how C misdemeanors to discharge any two decades, a paradigm shift has these exceptions will work in reality. fi nes and costs through community occurred in the Lone Star State. This bill poses many unanswered service, a judge may also allow a The misdeeds of children—acts that questions. Will peace offi cers observe child to discharge the fi nes or costs in the recent past resulted in trips the “pre-7th grade rule?” Will this through tutoring. This can only occur to the principal’s offi ce, corporal necessitate more prosecutorial if a defendant younger than 17 years punishment, or extra laps under review? In absence of review by a Page 45 The Recorder August 201 prosecutor or a defense attorney, how Article 45.0217 provides that all offenses cannot be adjudicated in a are the exceptions to these offenses records and fi les, including those juvenile court. The intent of this bill meaningful? Are they jurisdictional in held by law enforcement and all is to address only offenses that could nature and can they be raised by the electronically stored information, have been, but were not, fi led in court? relating to a child who is convicted of juvenile court. and has satisfi ed the judgment for a Subject: Confi dentiality of fi ne-only misdemeanor offense other Article 45.0217 provides that the Records of Certain Misdemeanor than a traffi c offense are confi dential records are confi dential and may Convictions of a Child and may not be disclosed to the not be released to the public, but H.B. 961 public. The language in Article provides a few exceptions. The Effective: June 17, 2011 45.0217 parallels the language in information can be inspected by Title 3 of the Family Code, which judges, court staff, a criminal justice Commentary: In 2009, the protects records relating to juvenile agency for a criminal justice purpose, Legislature passed S.B. 1056. The conduct when adjudicated through the DPS, the defendant, the defendant’s bill added Subsection (f-1) to Section juvenile courts. attorney, a prosecuting attorney, or 411.081 of the Government Code, the defendant’s parent, guardian, requiring criminal courts to issue Like nondisclosure orders, this new or managing conservator. This is a a non-disclosure order upon the confi dentiality protection only applies rather signifi cant change from the conviction of a child for a fi ne-only to cases in which a conviction is nondisclosure process where parents misdemeanor offense. It has since obtained. This means there is no were not a permissible party to become clear that the system for confi dentiality for records related receive information about a child’s processing non-disclosure orders is to a case where a child defendant case. This refl ects the Legislature’s not equipped to handle the volume receives deferred disposition and intent to keep parents involved in of convictions involving children the case is subsequently dismissed their child’s criminal cases. Law that occur in municipal and justice or where a child gets a dismissal enforcement required to notify courts. Because the orders, which from successful completion of teen schools upon the arrest of the child are supposed to be disseminated court. Unlike nondisclosure, this new under Article 15.27 of the Code by the Department of Public Safety confi dentiality does not attach to of Criminal Procedure also has an (DPS), are not being sent to necessary records until the judgment is satisfi ed. exception from the confi dentiality entities, children are not getting the Nondisclosure orders were generated provision. protection intended by S.B. 1056. automatically upon conviction, and were problematic in the event the Similarly, H.B. 961 adds Article Provisions in H.B. 961 are intended child did not pay the fi ne, attend 44.2811 to the Code of Criminal to correct the defi ciencies in existing an awareness class, or complete Procedure, and addresses the nondisclosure procedures (these community service. Questions arose confi dentiality of records on appeal provisions were originally fi led as as to whether the court could turn from a municipal or justice court. H.B. 3695, but were added to H.B. the child over to collections, accept On appeal from a municipal court 961 to ensure passage this Session). payment from a parent on a child’s of non-record or justice court, What makes H.B. 961 different from fi ne, or issue a capias pro fi ne and confi dentiality will apply under the defunct S.B. 1056? H.B. 961 publicize that fact when the child Chapter 44 only if the child is again replaces procedures for nondisclosure turned 17. However, H.B. 961 makes convicted and satisfi es the judgment. with procedures that conditionally it clear that confi dentiality does not If the case is dismissed upon appeal make particular criminal case records apply until the child has satisfi ed the or the child is acquitted, there will confi dential. Additionally, DPS will judgment. be no confi dentiality. Likewise, no longer be involved in the process. confi dentiality will only apply to H.B. 961 also makes clear that records relating to a case appealed Section by Section Analysis: confi dentiality does not apply to from a municipal court of record traffi c offenses. This exclusion if the judgment is affi rmed; if the Sections 1-2: Confi dentiality of refl ects the original intent behind S.B. judgment is reversed, there will be no Records Related to the Conviction 1056 but was not part of the plain confi dentiality. In either case–appeal of a Child language of the nondisclosure statute. from a record or non-record court– Why are traffi c offenses excluded? confi dentiality is only triggered upon H.B. 961 adds two new provisions Because, unlike most other Class satisfaction of the judgment. Article to the Code of Criminal Procedure. C misdemeanors, fi ne-only traffi c 44.2811 references Article 45.0217

Page 46 The Recorder August 2011 for purposes of providing the same of the act. Accordingly, cases subject identifying, responding to, and exceptions to confi dentiality. to nondisclosure are now afforded reporting incidents of bullying. confi dentiality. This saves courts Sections 3, 5-7, 13: Sealing of the headache of having to determine In the past when bullying became Records in Juvenile Court date of conviction to know whether an issue in our schools, it was often the records can be released under the the victim of bullying who was These sections amend provisions common-law right of inspection. All shifted into a different classroom or in the Family Code relating to the cases where the child has satisfi ed to another campus. This shuffl ing sealing and restricting of access to the judgment, other than traffi c of the victim potentially caused the juvenile records of adjudications convictions, are now confi dential as victim to feel even more ostracized. of delinquent conduct or conduct provided in Article 45.0217 of the Under the new Section 25.0342 of the indicating a need for supervision by Code of Criminal Procedure. All Education Code, schools may now lowering the age at which a child can records related to cases in which no transfer the student who engaged in get records sealed. conviction was obtained are subject to the bullying to another classroom or the common-law right of inspection. campus. Section 4: Confi dentiality of All cases subject to an existing Records Held by the Juvenile Court nondisclosure order will still be Section 37.0832 of the Education subject to the nondisclosure order. Code is also added to create a new The general confi dentiality provision defi nition of bullying and to require that governs the civil juvenile justice Subject: Bullying in Schools the board of trustees of each school system, Section 58.007 of the Family H.B. 1942 district to adopt policies that prohibit Code, provides that records related to Effective: June 17, 2011 bullying and retaliation against any juvenile conduct are confi dential and person that provides information may not be released to the public, but According to reports, a considerable concerning an incident of bullying. expressly provides that the section percentage of students nationwide District policies must also establish does not apply to records held by have fallen victim to bullying. Recent procedures for providing notice of municipal and justice courts. H.B. developments in technology have bullying to parents and guardians of 961 adds Section 58.00711, which contributed to the rise of bullying by victims and bullies, establish actions states, except as provided by Article electronic means (cyberbullying). a student should take in response 45.0217(b) of the Code of Criminal Interested parties contend that, with to bullying, set out the available Procedure, all records and fi les more than four million students in counseling options for students, relating to a child who is convicted of the state public education system, establish reporting and investigation and has satisfi ed the judgment for a Texas should improve expectations procedures for dealing with bullying, fi ne-only offense other than a traffi c for its schools in addressing this and prohibit the imposition of offense are confi dential and may not problem. H.B. 1942 seeks to take a disciplinary measures on a student be disclosed to the public. preventative approach to reducing who is a victim of bullying on bullying in Texas public schools the basis of that student's use of Sections 8-12: Repeal of and provide a minimal framework reasonable self-defense in response to Nondisclosure for schools to use in adopting and the bullying. These new policies and implementing a bullying policy, while procedures must be included annually H.B. 961 repeals Sections 411.081(f- being cognizant of the local control in the student and employee school 1) and (j) of the Government Code– independent school districts should district handbooks. the provisions added in 2009 by have in developing policy refl ective S.B. 1056 providing for of their respective communities. Subject: Discharging Fines and nondisclosure. The bill also makes Costs Assessed Against Juvenile conforming changes by deleting all Commentary: Texas has not escaped Defendants Through Community references to nondisclosure in the the widespread and well-publicized Service Government Code. tragedies that have come about H.B. 1964 due to bullying. H.B. 1942 takes Effective: September 1, 2011 Section 14: Application of Effective a signifi cant step towards curbing Date bullying. Section 21.451(d) of the H.B. 1964 amends the Code of Education Code, is amended so Criminal Procedure to authorize a H.B. 961 applies to convictions that staff development for teachers justice or judge to require a defendant before, on, or after the effective date may include training in preventing, younger than 17 years of age who

Page 47 The Recorder August 201 is assessed a fi ne or costs for a considering the child’s resources social services into the disciplinary Class C misdemeanor to discharge and without waiting for a failure process, and cooperating with the all or part of the fi ne or costs by to pay. Under Section 12.41 of the juvenile, his or her parents, schools, performing community service. The Penal Code, any conviction obtained and courts in order to best serve bill authorizes such a defendant to from a prosecution outside of the the interests of the juvenile and the discharge an obligation to perform Penal Code is classifi ed as a Class community. However, many juvenile community service by paying the C misdemeanor if the offense is case managers have been relegated fi ne and costs assessed at any time. punishable by fi ne only. to the role of a court clerk and The bill requires the justice or judge collections agent. to specify, in the justice's or judge's Notably missing from this new order requiring the defendant to article is the clause providing a Current Texas law does not establish perform the community service, minimum discharge of $50 for every any minimum standard of training or the number of hours of service the eight hours worked that is included education for juvenile case managers. defendant is required to perform and in two other articles dealing with S.B. 61 seeks to establish minimum prohibits the justice or judge from community service in this chapter. training and educational standards ordering more than 200 hours of Both H.B. 1964 and H.B. 350 create for juvenile case managers, including service. a new Article 45.0492. We should case planning and management; expect to see two versions in the juvenile law; courtroom proceedings The bill exempts a sheriff, employee Code of Criminal Procedure until the and presentation; law enforcement of a sheriff's department, county respective articles are combined or proceedings; local programs and commissioner, county employee, renumbered. services, including access procedures; county judge, justice of the peace, code of ethics and disciplinary municipal judge, or offi cer or H.B. 1964 also amends Article 45.057 procedures; and detecting and employee of a political subdivision of the Code of Criminal Procedure, preventing abuse, exploitation, and other than a county from liability for requiring that any special programs neglect of children. This training damages arising from an act or failure that rely on municipal funds must be will create consistency across court to act in connection with community approved by the governing body of systems and enable juvenile case service performed by the defendant if the municipality before a municipal managers to be more effective in the act or failure to act was performed judge or justice of the peace may their intended role as part court clerk, pursuant to a court order and was require a defendant who is a child to part probation offi cer, and part social not intentional, willfully or wantonly attend. worker. negligent, or performed with conscious indifference or reckless Subject: Juvenile Case Manager Commentary: In addition to all disregard for the safety of others. Training and Education of the new training and education The bill authorizes a community S.B. 61 standards, S.B. 61 also amends supervision and corrections Effective: June 17, 2011 Article 102.0174 of the Code of department or a court-related services Criminal Procedure, relating to offi ce to provide the administrative S.B. 61 amends current law relating the juvenile case manager fund. A and other services necessary for to juvenile case managers. The juvenile case manager fund may supervision of a defendant required to purpose of this legislation is to now be used to fund training, travel perform community service under the establish minimum training and expenses, offi ce supplies, and other bill's provisions. educational standards for juvenile necessary expenses related to the case managers. Although the use of position of a juvenile case manager. Commentary: Under current law, juvenile case managers has grown This is a substantial expansion of community service in satisfaction since their authorization in 2001 approved uses, which was previously of fi ne and costs for fi ne-only and the creation of the juvenile case limited to only paying salary and misdemeanors is only available manager fund in 2005, the legislative benefi ts of a juvenile case manager. under Section 45.049 of the intent behind the creation of these This is one of three bills dealing with Code of Criminal Procedure, to a case managers has largely been juvenile case managers. (See also, defendant who fails to pay or who unrealized. S.B. 209 and S.B. 1489) has insuffi cient resources to pay. Under this new Section 45.0492, a Juvenile case managers are intended Subject: Communications from judge may allow a child convicted to serve as problem solvers by Juvenile Case Managers of a Class C misdemeanor to fostering interaction between S.B. 209 discharge fi ne or costs without defendants and the judge, integrating Effective: September 1, 2011

Page 48 The Recorder August 2011 Current law allows certain courts reporting and consulting requirements the child has the right to have the to hire juvenile case managers to do not apply to a part-time judge. The court notifi ed if the child is unable provide services in juvenile cases. question remains—what is a part-time to understand any question and to While the use of juvenile case judge? have a question restated in a form managers has grown since this that the child does understand; ensure authorization was granted, some S.B. 209 also removes the that a child testifi es only at a time believe the legislative intent behind specifi cation that juvenile case of day when the child is best able the creation of these case managers managers be employed full-time and to understand the questions and to has largely been unrealized. In some that a case manager work primarily undergo the proceedings without courtrooms, juvenile case managers on cases relating to Failure to Attend being traumatized; and prevent report to clerks rather than the judge School and Parent Contributing intimidation or harassment of the of the court and fi ll an administrative to Non-Attendance. As amended, child by any party and, for that role instead of a problem-solving role. Article 45.056(e) provides that a case purpose, rephrase as appropriate any Requiring juvenile case managers manager shall give priority to cases question asked of the child. to timely report to the appropriate alleging Failure to Attend School judge may create a more effective and Parent Contributing to Non- It also allows motions for the child to management structure that will foster Attendance. have a blanket, toy, or similar comfort more interaction between the judge item while testifying, or a support and juvenile case manager. This is the one of the three bills person in close proximity. The court passed by the Legislature involving shall grant such a motion if the court S.B. 209 requires juvenile case the role of juvenile case managers in fi nds by a preponderance of the managers to timely report to the municipal court (see also S.B. 61 and evidence that both the child cannot appropriate judge information or S.B. 1489). reasonably testify without possession recommendations relevant to assist of the comfort item or the presence of the judge in making certain decisions Subject: Testimony of Children in the support person, and granting the in the case and requires certain Criminal Court motion is not likely to prejudice the consultation between judges and S.B. 578 trier of fact in evaluating the child's juvenile case managers. Effective: September 1, 2011 testimony.

Commentary: The topic of juvenile Testifying in court is often stressful case manager supervision has been a Subject: Exchange of Confi dential for children. Numerous studies Information Concerning Juveniles divisive topic during the last session. document that children have very S.B. 1106 When initially fi led, this bill was no little, if any, understanding of Effective: June 17, 2011 different. By the time this bill cleared legal processes. The confusing, the House, the focus of the bill was often intimidating environment of State laws allow some information no longer exclusively about juvenile a courtroom is exacerbated when sharing relating to juveniles between case manager supervision. Rather, the judges and attorneys ask questions the governmental entities that serve bill began to focus more on the kind the child cannot understand. S.B. them. The sharing of information of information that should be shared 578 protects children under 17 may prevent the duplication of with the judge by the juvenile case years of age from confusing, often services, improve the quality of manager. Under the amended Article intimidating practices while testifying services, provide a means to test the 45.056 of the Code of Criminal and facilitates testimony that is fair effectiveness of programs, and most Procedure, juvenile case managers and accurate. must report to the judge who signed importantly, lead to better outcomes the order or judgment relating to S.B. 578 amends the Code of for Texas children. the case and, if requested, they may Criminal Procedure by adding Article need to also report to the presiding 38.074 to enhance a child's rights S.B. 1106 provides for increased judge or the judge assigned to the during testimony in criminal cases. sharing of a juvenile's information case. Judges assigned to juvenile It requires the court to: administer an between governmental entities cases must consult with the juvenile oath to a child in a manner that allows while preserving the individual's case manager regarding the child the child to fully understand the rights to privacy. S.B. 1106 amends and the child’s home environment, child's duty to tell the truth; ensure current law relating to the exchange developmental status, prior record, that questions asked of the child are of confi dential information among and appropriate sanctions the court stated in language appropriate to the certain governmental entities should consider. Notably, these child's age; explain to the child that concerning certain juveniles.

Page 49 The Recorder August 201 Commentary: Section 37.084(a) of under Chapter 552 of the Government Subject: Criminal Offenses the Education Code is amended to Code, unless an agreement among Regarding the Possession or now require, rather than authorize, the entities prohibits or provides an Consumption of Alcoholic a school district superintendent or alternate method of assessing the fee, Beverages by a Minor and the superintendent's designee to the fee is waived of the fee, or the Providing Alcoholic Beverages to a disclose information contained in disclosure is required by law. Minor a student's educational records to S.B. 1331; H.B. 3474 a juvenile service provider, rather Subject: Authorizing Certain Effective: September 1, 2011 than to a justice agency, if the Courts to Access Information in disclosure is under an interagency the Juvenile Justice Information Observers express concern that young agreement authorized by Section System adults are increasingly engaging 58.0051 of the Family Code. Under S.B. 1241 in hazing that involves the abuse the Section 58.0051, a municipal Effective: September 1, 2011 of alcohol and results in alcohol court is considered a juvenile service poisoning. The observers suggest provider—as it is a court with Counties over two million in that providing limited immunity jurisdiction over juveniles. population are authorized to appoint for a minor from prosecution of magistrates to hear truancy cases. certain alcohol-related offenses Under S.B. 1106, when a student These truancy court magistrates are could prevent such situations from is taken into custody under Section not currently authorized to access occurring. S.B. 1331 seeks to provide 52.01 of the Family Code, a the state Juvenile Justice Information that limited immunity. It also seeks municipal court, upon request, shall System (JJIS) to check on the history to address additional community be entitled to receive confi dential of the children they are working with. supervision requirements for a information from a school district person who commits an offense regarding the student (e.g., S.B. 1241, amending Section 58.106 relating to providing an alcoholic information regarding special needs, of the Family Code, will allow beverage to a minor at a gathering educational accommodations, these magistrates, along with justice where participants were involved disciplinary records, and and municipal courts that exercise in certain alcohol abuse, including psychological diagnoses). In jurisdiction over a juvenile under binge drinking or forcing or coercing light of the 2009 change in law, Section 54.021 of the Family Code individuals to consume alcohol. requiring all municipal judges to (County, Justice, or Municipal Court: receive training related to child Truancy), to have access to the state H.B. 3474 and S.B. 1331 are identical welfare and the Individuals with Juvenile Justice Information System. bills that amend Sections 106.04 Disabilities Education Act (IDEA), Having more data about a truant's (Consumption of Alcohol by a it is interesting to see this increased background will allow a magistrate, Minor) and 106.05 (Possession of access to school records. Judges justice of the peace, or municipal Alcohol by a Minor) of the Alcoholic who received IDEA training in 2010 judge to make a more informed Beverage Code. These bills provide received instruction related to the decision on the disposition of a an exception to the application of very information to which, in some truant's case. the offenses if the minor requested cases, they will now have access. emergency medical assistance in Commentary: Information obtained response to the possible alcohol The exchange of the confi dential through JJIS is distinct from other overdose of the minor or another information, however, does not information that criminal courts are person; was the fi rst person to make affect the confi dential status of accustomed to having in case fi les. such a request for emergency medical the information being shared, and It cannot be emphasized enough that assistance; and, if the minor requested a juvenile service provider may information obtained by municipal, emergency medical assistance for the establish internal protocol for sharing justice, and county courts through possible alcohol overdose of another information with other juvenile the JJIS is confi dential and should person, remained on the scene until service providers as necessary to be managed accordingly to prevent the medical assistance arrived and effi ciently and promptly disclose and unauthorized dissemination to cooperated with medical assistance accept information. Under Section unauthorized personnel and the and law enforcement personnel. 58.0051 of the Family Code, juvenile public. (see also, S.B. 1489, Section service provider requestors shall pay 11, amending Section 58.106 of the Commentary: Judges and a fee to the disclosing entity in an Family Code). prosecutors need to know that that amount equal to that which is charged these bills create a new “safe harbor” for providing public information defense to two frequently fi led

Page 50 The Recorder August 2011 minor alcohol offenses. They also S.B. 1489 adds an age requirement have to reconsider what constitutes create mandatory conditions as to to the substantive elements of the “a fi nding” that an individual has when defendants receive deferred offense Failure to Attend School committed the offense of Failure to adjudication in county courts but it (Section 25.094, Education Code). Attend School. If a court relies on a fails to mandate similar conditions At trial, prosecutors will now have conviction as its “fi nding,” (which for defendants who receive deferred to prove beyond a reasonable doubt is currently the standard accepted disposition in a municipal or justice that the defendant was between the practice) there will be a problem court. ages of 12 and 17 (inclusive) at the because this section requires the time of the offense. The intent of this complaint to be dismissed (and Subject: Criminal Justice amendment is two-fold: (1) truants a complaint cannot be dismissed Responses to Truant Students; younger than 12 years of age are not once a fi nal judgment is entered). Juvenile Case Managers to be criminally prosecuted; such Presumably the amendment of Article S.B. 1489 cases involving 10- and 11-year-olds 45.054 will necessitate the court Effective: September 1, 2011 may only be dealt with under Title 3 now take some action short of a fi nal of the Family Code, and (2) students judgment and continue the case to Commentary: Like a rollercoaster who are 18 or older may not be see whether the defendant complies ride, S.B. 1489 followed a rough criminally prosecuted (even though with the court’s orders. This is similar and circuitous path all the way to the they remain subject to compulsory to how municipal and justice courts Governor’s desk. The bill began as school attendance under Section handle driving safety course orders an attempt to end the criminalization 25.085). (Article 45.0511(l), Code of Criminal of truancy (i.e., the criminal offense, Procedure) and courses taken for Failure to Attend School, which Section 3: Waiver alleged tobacco offenses (Section has only been on the books since 161.253(f), Health and Safety Code). 1995). Opposition to the initial bill This section makes conforming It creates a deferral-like process. resulted in a second version where changes to Section 54.021 of the cases involving truant children (age Family Code. Why not just put the defendant on 10-16) were handled by the civil deferred disposition (Article 45.051, juvenile justice system under Title Sections 4-5: Disposition Order Code of Criminal Procedure) and 3 of the Family Code, and students Issued by Civil Courts have the order contain the conditions 17 and older would continue to be contained in Article 45.054? adjudicated in local criminal courts. This section pertains to truancy Because doing so would result in a The second version of the bill was related orders issued by courts confl ict in expunction provisions. also opposed. The third version of governed by Title 3 of the Family Changes to Article 45.055 of the the bill would have maintained the Code and is inapplicable to municipal Code of Criminal Procedure require criminalization of truancy but would and other criminal courts. municipal, justice, and county courts, have stripped municipal courts of to expunge the records of a criminal jurisdiction to hear Failure to Attend Sections 6-7: Criminal Disposition conviction of Failure to Attend School School cases and the ability of Orders (regardless of whether the defendant municipalities to operate a juvenile has been previously convicted) if case manager fund and utilize These sections amend Article 45.054 the defendant successfully complies juvenile case managers. The third of the Code of Criminal Procedure with all conditions imposed by the version of the bill faced the broadest by adding Subsections (i) and court or presents, prior to turning amount of opposition. Opponents (j) requiring the county, justice, 21,a high school diploma or high included municipal courts, juvenile or municipal courts to dismiss school equivalency certifi cate prior to case managers, municipalities, and complaints alleging Failure to Attend turning 21. Expunctions of a deferred some counties and justices of the School upon successful completion disposition are governed by Article peace. of conditions imposed by the court 55.01, and occur in district court or upon earning a high school (Article 45.051(e)). The fourth version of S.B. 1489–the diploma or a high school equivalency one that reached the Governor’s certifi cate. It also allows the court to S.B. 1489 also makes some changes desk–is the embodiment of waive or reduce fees and court costs regarding juvenile case managers. compromise and incremental change. if they impose a fi nancial hardship. Article 45.056 of the Code of

Criminal Procedure is repealed, but Section by Section Analysis: The amendment of Article 45.054 is a new version is in effect under S.B. Sections 1-2: Age problematic. Most courts are going to 209 discussed earlier. Also, numerous Page 51 The Recorder August 201 changes to Chapter 102 of the Code prevention measures designed to obtained by courts through the JJIS is of Criminal Procedure (specifi cally (1) address student conduct related confi dential and should be managed Sections 102.0174, 102.061, 102.081, to truancy in the school setting; (2) accordingly to prevent unauthorized 102.101, and 102.121) specify that minimize the need for referrals to dissemination to unauthorized only courts that employ a juvenile juvenile court for conduct; and (3) personnel and the public. case manager may establish a juvenile minimize the fi ling of complaints in case manager fund and collect a county, justice, and municipal courts Section 16: Case Priorities of juvenile case manager fee, thus for Failure to Attend School. Juvenile Case Managers eliminating the possibility of creating a fund and collecting a fee, but never Under the new law, a complaint This amendment repeals Article using the monies for their intended alleging Failure to Attend School 45.056(e) of the Code of Criminal purpose. cannot be fi led with a court unless Procedure stating that a juvenile it is accompanied by a statement case manager shall work primarily Sections 8, 12-16: Collecting the certifying that the school applied on cases alleging Failure to Attend Juvenile Case Manager Fee the truancy prevention measures School and Parent Contributing to and that the measures failed to Non-Attendance (emphasis added). When local governments were meaningfully address the student’s This poorly drafted subsection has authorized by the Legislature to school attendance. Perhaps, more been the source of disagreement and adopt the juvenile case manager importantly, the certifi cation must consternation among judges and fee in 2001, some governments specify whether the student is eligible attorneys. In fact, some cities refused passed ordinances and orders for or receives special education to create juvenile case manager authorizing the collection of the fee services. This is information that programs because of its language. and began saving the money until advocates for children with special While this amendment repeals ample funds were accumulated to needs have long wanted judges and Article 45.056(e), another bill, S.B. employ a case manager. However, prosecutors to know—but schools 209, provides new language for the some governments also began have not been obligated to provide. subsection stating that a case manager collecting the money but never Advocates for children believe that shall give priority to cases alleging hired a case manager. As amended, the fi ling of criminal complaints Failure to Attend School and Parent Article 102.0174 of the Code of by schools has become a substitute Contributing to Non-Attendance Criminal Procedure prohibits a local for providing parents and students (emphasis added). government from collecting the with the procedural and substantive juvenile case manager fee if they do protections guaranteed to them under — Medium Priority — not employ a juvenile case manager. the Individuals with Disabilities Education Act (IDEA). Subject: Appointment of School Sections 9-10: Truancy Prevention Attendance Magistrates in Counties Measures Section 11: Confi dentiality of of a Certain Size Information Obtained via the H.B. 734 Sending children to court for not Juvenile Justice Information Effective: September 1, 2011 attending school should not be the System fi rst response of Texas public schools. Commentary: Dallas was the fi rst Truancy prevention measures are This is a conforming change made at urban county in Texas to receive intended to document school efforts the last minute in light of the passage permission from the Legislature to to address school attendance prior to of S.B. 1241 which will allow create, what can be best described resorting to a legal response. Section county statutory school attendance as, a system of school attendance 25.091 of the Education Code is magistrates, along with justice magistrates. These school attendance amended to require peace offi cers as and municipal courts that exercise magistrates are authorized to hear attendance offi cers to apply truancy jurisdiction over a juvenile under Failure to Attend School and Parent prevention measures and an offi cer Section 54.021 of the Family Code Contributing to Nonattendance cases can only instigate court action if (County, Justice, or Municipal Court: utilizing the procedures contained in such measures “fail to meaningfully Truancy), to have access to the state Chapter 45 of the Code of Criminal address the student’s conduct.” Juvenile Justice Information System Procedure. If the defendant is not (JJIS). Information obtained through satisfi ed with the decision of the Newly created Section 25.0915 of JJIS is distinct from other information school attendance magistrate, the the Education Code provides that a that criminal courts are accustomed matter can be reconsidered by a school district shall adopt truancy to having in case fi les. Information county judge who ultimately signs the Page 52 The Recorder August 2011 judgment. previously could be made either and parole offi cers. within 24 hours or during the next Truancy is a civil matter that can school day, must now be made by Subject: Appointment of only be adjudicated in a juvenile the earlier of 24 hours or before the Magistrates to Hear School court. Although school attendance commencement of the next school Attendance Matters in Fort Bend magistrates do not have jurisdiction day. Once a superintendent or their County to hear truancy cases and are not designee receives oral notifi cation of H.B. 2132 judges of any particular court, they the arrest of a student who is currently Effective: September 1, 2011 are commonly (albeit inaccurately) attending school in that district, then described as “judges” of “truancy the superintendent or designee must H.B. 2132 seeks to provide courts.” immediately notify those individuals consistency in dealing with criminal who instruct or supervise the student failure to attend school issues in Fort Currently, school attendance of that arrest. Bend County. By adding Subchapter magistrates are only authorized in JJ to the Government Code, a judge counties with two million people. Within seven days of providing oral of a constitutional county court in H.B. 734 allows the county judge notifi cation, law enforcement offi cials a county that has as a population of of a county with a population of must mail a written notifi cation more than 585,000 (i.e., Fort Bend 1.75 million or more, with the of the arrest to the superintendent County), and is contiguous to a consent of the commissioners court, or the superintendent’s designee county with a population of at least to appoint a magistrate to hear describing the facts surrounding four million (i.e., Harris County), is Class C misdemeanors related to the arrest. Under previous law, the authorized to appoint magistrates to school attendance. The bill amends superintendent could only share this hear criminal cases relating to school provisions of the Family Code, information with personnel who attendance. Government Code, and the Education had instructional or supervisory Code to refl ect the population change. responsibility for the student and Under the new Section 54.1954 of only if such action was necessary the Government Code, a magistrate Subject: Notifi cation of School for educational purposes or to must be a citizen who has served as District Personnel of Offenses protect the safety of individuals. a justice of the peace for at least four Committed by Students This restriction is now eliminated. years or who has been licensed to H.B. 1907 Although the revised statute practice law in Texas for at least four Effective: September 1, 2011 permits the superintendent to share years prior to the date of appointment. information freely, the statute Currently, the superintendent of a retains administrative penalties for Commentary: See H.B. 734 for school district must be notifi ed when individuals who violate a student’s related commentary. a student enrolled in the district confi dentiality by inappropriately is arrested for certain offenses. disseminating such information. Subject: Restructuring of the Texas However, the notifi cation of a The bill makes similar changes Youth and Juvenile Probation school district employee who has to the procedure of notifi cation of Commissions direct supervisory responsibility the criminal conviction of, or the S.B. 653 for the student is not specifi cally placement on community supervision Effective: Transition to begin required. H.B. 1907 amends current for, a student. September 1, 2011 and be law relating to the notifi cation completed by December 1, 2011 requirements concerning offenses New provisions added to the statute committed by students and to school require a school board to report a The Texas Youth Commission district discretion over admission or failure of the superintendent to notify (TYC) is responsible for operating placement of certain students. school personnel to the State Board of institutional facilities that provide Educator Certifi cation. Additionally, rehabilitative services to youthful Under the new Article 15.27 of the a superintendent who has learned that offenders. The Texas Juvenile Code of Criminal Procedure, law law enforcement authorities failed Probation Commission (TJPC) enforcement authorities who have to report the arrest of a student must was established in 1981 to ensure arrested a student are required to report that failure to the Commission access to juvenile probation orally notify a school superintendent on Law Enforcement Offi cer services statewide, and it supports or designated offi cial of such arrest. Standards and Education. Other and oversees juvenile probation The changes enacted by this bill will duties to report notifi cation failures departments throughout Texas. In require that oral notifi cation, which are imposed on prosecuting attorneys 2007, the Offi ce on Independent

Page 53 The Recorder August 201 Ombudsman (OIO) was created fi scally responsible entity to further Subject: High School Equivalency by the Legislature to investigate, facilitate reforms and integrate Online Testing evaluate, and secure the rights of initiatives aimed at diverting youthful S.B. 1094 children committed to TYC. As offenders from incarceration and Effective: September 1, 2011 part of the ongoing Sunset Act into community programs. S.B. 653 review process, the TYC and TJPC abolishes the TYC and TJPC and S.B. 1094 amends the Education are scheduled to be abolished on merges their functions, together with Code through the newly added September 1, 2011 unless renewed. the oversight provided by the OIO, Section 7.111(c) and requires the The OIO is reviewed on the same into a new Texas Juvenile Justice State Board of Education to provide schedule, but is not subject to Department (TJJD). for the administration of high school abolition. Together, these agencies equivalency examinations through comprise the bulk of the juvenile Beginning September 1, existing online testing. justice system in Texas. Working with rules, regulations, facilities, other departments, they handle some equipment, personnel, and authority In order to alleviate the burden of 90,000 referred cases representing will be transitioned from the existing traveling to a designated testing about 97% of the juvenile offenses departments into the new TJJD. The center to take an equivalency that take place in the state. process is scheduled to be completed examination, the Legislature has by December 1, 2011, at which time directed the board to develop In 2009, the Legislature continued the TYC and TJPC will cease to exist. rules and procedures which would the TYC and TJPC for two years The new bill states that the purpose permit individuals to take an online in order to continue investigation of creating a unifi ed state juvenile equivalency test in lieu of in-person and implementation of reforms justice agency is to promote public testing while ensuring that such tests for identifi ed issues. Following safety by providing a full continuum are taken by the identifi ed individual. extensive study, the Legislature has of effective support and services Standards are to be established for the concluded that the best course of to youth that begins with their fi rst 2011-2012 school year. action is to consolidate these agencies contact and continues through the into a single, more effi cient, and termination of supervision.

Register for TMCEC Conferences Online!

Judges and clerks are able to register online for TMCEC conferences. Credit card payment is required at the time of registration. All judges and clerks were sent a letter with their user name and password. If you did not recieve this please call our offi ce at 800.252.3718. Not only can you register, but you can update your profi le information, give TMCEC your emergency contact information, look at the courses that you have taken since September 1, 2007, and print off duplicate certifi cates from September 1, 2007. In FY12, TMCEC will no longer mail certifi cates, except upon request and payment of a $5.00 handling fee.

If you have questions about online registration, please contact Jameson Crain at TMCEC (800.252.3718 or [email protected]).

Page 54 The Recorder August 2011 MUNICIPAL JUVENILE/MINOR CHART its C.C.P.; Sec. 29.003, & Art. 45.058(h), may not waivemay not . Transportation Code Chapter 729 Ch. 502. Registration of Vehicles, except except of Vehicles, Registration Ch. 502. Sec. Licenses, except 521. Driver’s Ch. except Road, of the C. Rules Subtitle Responsibility Safety Ch. 601. & Weight; Size 621. Vehicle Ch. & All Terrain 661. Motorcycles Ch. of & Towing Storage Parking, Ch. 681. Yes. (See Art. 4.14, G.C.; Sec. 51.03, F.C.; and T.C.) 729.001(a), For exceptions, see section on common offenses. Sec. 729.001. Operation of Motor Sec. 729.001. Operation Vehicle by Minor- Under age 17. Sec. 51.02, F.C. C.C.P of age as at least 10 years Child defined than age 17. & younger jurisdiction over traffic violations. Sec. 51.08, F.C. Municipal court Sec. 729.001(a), T.C.; Sec. 8.07(a)(2), Sec. 8.07(a)(2), T.C.; Sec. 729.001(a), P.C.; Sec. 51.02(16), F.C. y or 502.412; Secs. 502.282 y 521.457; y by or imprisonment by punishable offenses jail; in confinement y y y Vehicles; y Vehicles. . jurisdiction Penal Code Shall waive Shall waive Shall waive May waive Sec. 51.08, F.C. Under age 17: y Yes. (See Art. 4.14, 29.003, C.C.P.; Sec. G.C.; Sec. 8.07, P.C.; and Sec. 51.03(f), F.C.) offenses. All fine-only over first and second violations; y jurisdiction after two of previous convictions non-traffic fine-only any offenses. x Sec. 8.07. Age Affecting Criminal Responsibility under age 17. Sec. 51.02, F.C. & Art. C.C.P 45.058(h), as at least Child defined 10 years of age & than age 17. younger be 17 Defendant must court to for municipal have jurisdiction. Section 43.261 jurisdiction if there is (section pending Sexting 43.261, P.C.) complaint against a child (under 17 years of age) All fine-only offenses. offenses. All fine-only . Health and Health Safety Code Possession of Possession of Purchase of Consumption of Consumption Acceptance of Display false Sec. 161.257, H.S.C waiveMay not jurisdiction. Title 3, Family Code (including transfer to juvenile court) to does not apply Subchapter N, H.S.C. Yes. (See Art. 4.14, C.C.P.; Sec. 29.003, G.C.; Sec. 8.07, P.C.; and Sec. H.S.C.) 161.256, Sec. 161.252, H.S.C. a Definition of - Under minor age 18. Sec. 51.02, F.C. & Art. 45.058(h), C.C.P as at Child defined of least 10 years age & younger than age 17. Sec. 161.252 y cigarettes or tobacco; y cigarettes or tobacco; y cigarettes or tobacco; y cigarettes or tobacco; y proof of age. proof of day day th Sec. 8.07, jurisdiction jurisdiction over Education Code May waive Shall waive Municipal court has jurisdiction if Sec. 25.094. Failure to Sec. 37.102. Rules (Enacted Sec. 37.107. Trespass on Sec. 37.122. Possession of Sec. 37.124. Disruption of Sec. 37.126. Disruption of Age 17 – court retains jurisdiction. Child under age 6, if At least age 6 and who has not first and second violations; first and second violations; y after two previous convictions non-traffic fine-only of any offenses. after student’s last absence. Yes. (See Art. 4.14, C.C.P.; Sec. 29.003, G.C.; F.C.) 51.03, and Sec. P.C.; Court required to dismiss complaint for failure to attend 7 filed by school if not Sec. 51.08, F.C. Under age 17: y Sec. 25.085. Compulsory School Attendance y child at least age 10; y enrolled in 1st grade, previously or y reached his or her 18th birthday. Exemptions.) for 25.086 Sec. (See y Attend School; y School Board); by y School Grounds; y Intoxicants on School Grounds; y Classes; y Transportation. x 8.07, P.C.; and & Art. 45.058(h), 14, C.C.P.; Sec. jurisdiction after two jurisdiction over first . Code/DUI/BUI Alcoholic Beverage . May waive At age 17 or after two more, Shall waive Sec. 106.041. Driving or Sec. 51.03, F.C.) Yes. (See Art. 4. 29.003, G.C.; Sec. Sec. 51.08, F.C. Under age 17: y non- of any previous convictions offenses. traffic fine-only y charge previous convictions, may in county be enhanced and filed court. Sec. 106.01 a Definition of - Under age minor 21. Sec. 51.02, F.C. y Operating Watercraft Under the a by Minor. Influence of Alcohol C.C.P as at least 10 years of Child defined than age 17. age & younger and second violations; and second violations; y 8.07, P.C.; and & Art. 45.058(h), 14, C.C.P.; Sec. jurisdiction after two jurisdiction over first . Sec. 106.025. Attempt to Purchase Sec. 106.025. Attempt At age 17 or after two more, Shall waive May waive Sec. 106.02. Purchase of Alcohol Sec. 106.04. Consumption of Sec. 106.04. Consumption Sec. 106.05. Possession of Alcohol Sec. 106.07. Misrepresentation of y Alcoholic Beverage Code Yes. (See Art. 4. 29.003, G.C.; Sec. Sec. 51.03, F.C.) Sec. 51.08, F.C. Under age 17: y non- of any previous convictions offenses. traffic fine-only y charge be previous convictions, may court. in county enhanced and filed Sec. 106.01. a Definition of - Under age minor 21. Sec. 51.02, F.C. C.C.P as at least 10 years of Child defined than age 17. age & younger y Minor; by Alcohol by a Alcohol by Minor; y a Alcohol by Minor; y a Minor; by y a Minor. Age by and second violations; and second violations; y 1 Jurisdiction Waiver of Jurisdiction - Transfer to Juvenile Court Sec. 51.08, F.C. Age Art. 45.058(h), C.C.P.; Sec. F.C. 51.02, Sec. 8.07, P.C. Common Offenses

Page 55 The Recorder August 201 729 729 Transportation Code Chapter Chapter Code Transportation Secs. 729.001 and 729.002 defendant. adult as same Penalty penalty and specific general See Transportation throughout clauses Code. Penal Code Sec. 12.23 misdemeanor C Class (max fine$500). Under age 17 two & see convictions, prior waiver provisions in chart. Intoxication Public 49.02): (Sec. Persons under 21 age public with charged the intoxication, Sec. under is penalty See A.B.C.: 106.071, Alcoholic for penalties Code Beverage Offenses other than DUI. Art. 45.061, C.C.P. of convicted Minor be may sexting a attend to ordered successfully complete an educational addressing program legal aspects, and consequences, of sexting, effects cyber- bullying, and bullying, harassment.

Code conviction Health and Safety Safety and Health st If no course course no If A fineA notto exceed complete to Failure fineA notto exceed Court shall suspend Upon completion of complete to Failure y $250, but court shall suspend execution of costs (court sentence assessed be still must and imposed) and tobacco order program. awareness dismisses Court charge oncompletion of course. y shall court available, hours 8-12 require tobacco-related service. community y awareness tobacco community or course court service, to order required DPS to suspend or DL of issuance deny days 180 to up for order. of date after Subsequent offenses (enhanced) y $250; y execution of sentence tobacco order and course; awareness y may court course, less not to fine reduce half; than y awareness tobacco community or course court service, to order required DPS to suspend or DL of issuance deny 180 exceed to not of date after days order. Secs. 161.252 and 161.253 1 . In addition to to addition In –

3 Education Code advocacy, and mentoring training; alcohol & drug abuse abuse drug & alcohol rehabilitation program, counseling program, training in self-esteem & work and job skills training, parenting, in training training, manners training, avoidance violence training, sensitivity program, program, leadership, Attend class for student at at class risk for student Attend service; Community tutorial in Participate deny or suspend to DPS Order Attend school without without school Attend for class preparatory Attend program: a special Attend

Class C misdemeanors (max (max misdemeanors C Class $500) Sec. 25.094(c) Secs. 25.094, 37.102, 37.107, 37.122, 37.124, 37.126 y of dropping of out school (may require parentto attend with child); y y program; y a period for a DL of issuance days. 365 exceed to not time of the dismiss shall Court complaint if individual has successfully complied withthe under imposed. conditions the if or C.C.P., 45.054, court the to presents individual proof of a high school diploma certificate. equivalency or a fine, a court may order a order may court a a fine, 45.054, Art. under sanction C.C.P.: y unexcused absences; y (olderGED childthat not will do in well classroom 16 is child if or, environment) or older, take exam; GED y Chapters 524 — court does not not does court — or subsequent conviction: court must must court conviction: subsequent or conviction: court must order DPS to to DPS order must court conviction: conviction conviction conviction conviction st nd st nd rd See waiverprovisions chart.in Fine $250to $2000 and/or Class C misdemeanor (max $500); $500); (max C misdemeanor Class awareness alcohol Mandatory alcohol- hours 40 20 to Mandatory suspension DL Administrative Class C misdemeanor (max $500); $500); (max C misdemeanor Class program; awareness alcohol Optional alcohol- of hours 60 40 to Mandatory suspension DL Administrative 2 1 Alcoholic Beverage Code/DUI/BUI Under age 17: 17: age Under y 21 under 17 & Age y if days 180 to exceed not confinement charge enhanced. order DPS to suspend or deny issuance of issuance deny or suspend to DPS order notDL to exceed one year. suspend or deny issuance of DL for up to for DL deny issuance of or suspend A.B.C. 106.115(c), Sec. months. six y suspend). suspend). 2 y y program; y related community service; y (separate proceedingunder Chapters T.C. 724, and 524 Sec. 106.041. 1 program alcohol awareness Complete the to half the fine may reduce Court assessed. amount alcohol complete Failure awareness to program to 90 days another may give Court complete. y y y y related community service; y (separate proceeding T.C.). 724, and 3 30 days; 30 days; 60 days; 60 days; – – day after conviction. conviction. after day conviction. after day th th or subsequent conviction: court court conviction: subsequent or conviction: court must order DPS to to DPS order must court conviction: conviction conviction conviction conviction st nd st nd rd See waiverprovisions chart.in Fine $250to $2000 and/or Class C misdemeanor (max $500); $500); (max C misdemeanor Class awareness alcohol Mandatory alcohol- hours 8-12 Mandatory suspensionDL or denial Class C misdemeanor (max $500); $500); (max C misdemeanor Class Optional alcohol awareness alcohol- hours 20-40 Mandatory suspensionDL or denial 1 2 eff. 11 eff. 11 Under age 17: 17: age Under y 21 under 17 & Age y days 180 to exceed not confinement if charge enhanced. y y program, Sec.106.115; y related community service; y 2 3 Alcoholic Beverage Code Sec. 106.071 for offenses under Secs.106.02, 106.025, 106.04, 106.05, 106.07. 1 program alcohol awareness Complete the to half the fine may reduce Court assessed. amount alcohol complete Failure awareness to program to 90 days another may give Court complete. y must orderto DPS suspenddenyor year. one to exceed not DL of issuance suspend or deny issuance of DL for up for DL deny issuance of or suspend A.B.C. 106.115(c), Sec. months. six to y y y program; y related community service; y

Penalties²

Page 56 The Recorder August 2011 (under

’s –

729 729 urrent address. address. urrent -released to parent, parent, to -released custodian, guardian, or other responsible adult; -taken before a municipal or justice court; of a place to -taken custody nonsecure held for not than more hours. 6 Transportation Code Chapter Chapter Code Transportation If a child has been referred to to referred been has a child If Must be in open court; court; open in be Must Parent or guardian required to or parent summon must Court if presence, waive may Court childA at least10 age and under be: may Child Art. 45.0215, C.C.P. 17: age Under y y child; with appear y guardian; y unable to locate or compel presence. parent’s Art. 45.057, C.C.P. to the notice provide should Court child of parent and child to obligation parent’s and 17) age the of writing in court the notify c child’s y into taken be may 17 age custody. nonsecure y y Sec. under court juvenile 45.050, Art. or F.C., 51.08(b), C.C.P., the child may be detained facility. detention in a juvenile

’s held for – Penal Code -released to parent, parent, to -released guardian, custodian, or other responsible adult; -taken a before municipal or justice court; of a place to -taken nonsecure custody not more more not 6 hours. than If a child has been been has a child If Mustin be open Parent or guardian summon must Court waive may Court age least at child A be: may Child (under age 17) and parent’s obligation to in court the notify child’s the of writing address. current Art. 45.0215, C.C.P. 17, age Under age under or generally, with charged if 18 Sexting under Section 43.261, P.C.: y court; y with appear to required child; y guardian; or parent y to unable if presence, compel or locate presence. parent’s Art. 45.057, C.C.P. provide should Court and child the to notice child of parent y 10 and under age 17 into taken be may custody. nonsecure y y referred to juvenile Sec. under court Art. or F.C., 51.08(b), the C.C.P., 45.050, detained be may child detention in a juvenile facility.

–

(under (under parent’s parent’s

– -released to parent, parent, to -released custodian, guardian, or other responsible adult; -taken before a municipal or justice court; of a place to -taken custody nonsecure held for not more hours. 6 than If a minor who is a child child a is who a minor If Must be in open court; court; open in be Must Parent or guardian summon must Court waive may Court 10 age least at child A be: may Child A minor age 17 when Health and SafetyHealth and Code Art. 45.0215, C.C.P. 17: age Under y y with appear to required child; y guardian; or parent y to unable if presence, parent’s compel or locate presence. 17 Age required. not presence Art. 45.057, C.C.P. provide should Court notice to the child and child’s of parent y be may 17 age under and nonsecure into taken custody. y age 17) and parent’s parent’s and 17) age the notify to obligation the of writing in court address. current child’s y hasbeen referred to Sec. under court juvenile Art. or F.C., 51.08(b), child the C.C.P., 45.050, a in detained be may detention juvenile facility. y may committed offense adult. an as handled be

’s held held –

Education Code for not than more 6 hours. -released to parent, parent, to -released guardian, custodian, or adult; responsible other a municipal before -taken court; justice or of a place to -taken custody nonsecure -A child may be taken into into taken be may -A child custody. -released to parent, guardian, custodian, other responsible or adult; -taken before a municipal or justice court that has venue. Order based on probable probable on based Order Must be in open court; court; open in be Must Parent or guardian required parent summon must Court presence, waive may Court and 10 age least at child A be: may Child Individual may be: Individual may Sec. 25.094(d-1), E.C. y to failed individual that cause attend school: y Art. 45.0215, C.C.P. 17: age Under y y child; with appear to y or guardian; y compel or locate to unable if presence. parent’s 45.054, C.C.P. Art. School to Attend Failure to required court Proceedings: to appear parents with summon of regardless defendant age. defendant’s Art. 45.057, C.C.P. to notice provide should Court child and parent child of the y taken be may 17 age under custody. nonsecure into y (under age 17) and parent’s 17) and parent’s age (under court the in to notify obligation current child’s the of writing address.

–

Code/DUI/BUI Alcoholic Beverage

-released to parent, parent, to -released guardian, custodian, or adult; responsible other -taken before a municipal or justice court; of a place to -taken custody nonsecure hours. 6 than more not for held If a minor who is a child has been been has child a is who a minor If A minorA age 17 when offense Plea of guilty mustbe in open court; open in be Must Parent or guardian required to Court must summonparent or if presence, waive may Court childA at least10 age and under Child may be: y referred to juvenile court under 45.050, Art. or F.C., 51.08(b), Sec. detained be may child the C.C.P., facility. detention in a juvenile y an as handled be may committed adult. Sec. 106.10, A.B.C. y court. Art. 45.0215, C.C.P. 17: age Under y y child; with appear y guardian; y parent’s compel or locate to unable presence. Art. 45.057, C.C.P. to the notice provide should Court age (under child of parent and child to obligation parent’s and 17) the of writing in court the notify address. current child’s y nonsecure into taken be may 17 age custody. y (under ’s

. held for not more than –

6 hours. 6 hours. -released to parent, guardian, guardian, parent, to -released custodian, or other responsible adult; or a municipal before -taken justice court; nonsecure of place a to -taken custody If a minor who is a child has been been has child a is who a minor If A minorA age 17 when offense Must be in open court; court; open in be Must Parent or guardian required to or parent summon must Court if presence, waive may Court Plea of guilty mustbe in open childA at least10 age and under be: may Child y referred to juvenile court under Sec. 45.050, Art. or F.C., 51.08(b), C.C.P., the child may be detained in facility. detention a juvenile y an as handled be may committed adult. Art. 45.0215, C.C.P. 17: age Under y y child; with appear y guardian; y parent’s compel or locate to unable presence. Art. 45.057, C.C.P to the notice provide should Court child of parent and child Alcoholic Beverage Code Sec. 106.10, A.B.C. y court. y nonsecure into taken be may 17 age custody. y age 17) and parent’s obligation to obligation parent’s and 17) age the of writing in court the notify address. current child’s

Appearance Custody³ Art. 45.058, C.C.P.

Page 57 The Recorder August 201 Violation of

Applies to: — Court may issue may Court Failure to Appear Appear to Failure 729 729 — Transportation Code Chapter Chapter Code Transportation refer the refer childto the juvenile retain jurisdiction and hold may be charged for other traffic offenses. 45.058, C.C.P. Art. custody. nonsecure for order an Art. 45.057(h), C.C.P. the with charged be may Child provide to failure of offense address. current of notice written to defense affirmative an is (It parent and child the if prosecution were not informed of their of court the notify to obligation change of address.) Sec. 521.3452, T.C. Courtshall report failure to DPS. to appear Sec. 543.009, T.C. be may Appear to Promise charged for Subtitle C,Rules of the Road offenses. 38.10 P.C. Sec. Art. 45.050, C.C.P. children 17; age under children turnwho agebefore 17 contempt and held; be can proceedings court obey to failed who persons Court older. 17 or age while order must provide notice of and contempt, on a hearing conduct before court may: y for conduct delinquent for court contemptthe of municipal court court 17 age turns child (if order court); juvenile to refer not may or y court of contempt in child/person $500; - max fineand/or suspension - order denial or until of DL child/person fully complies with orders.

Failure to to Failure

— Penal Code refer the refer childto the retainjurisdiction and Appear may be charged. charged. be may Appear Art. 45.058, C.C.P. Courtmay issue an order custody. nonsecure for Art. 45.057(h), C.C.P. charged be may Child with the offense of failure notice written provide to isof current address. (It anaffirmative defense to child if the prosecution not were parent and informed of their the notify to obligation courtchange of of address.) Secs. 521.201(8) and T.C. 521.294(6), Court reportmay failure DPS. to appear to Sec. 38.10, P.C. Sec. Art. 45.050, C.C.P. children to: Applies children 17; age under turnwho agebefore 17 can proceedings contempt who persons and held; be order court obey to failed older. 17 or age while provide must Court notice of andconduct a contempt, on hearing before court may: y for court juvenile for conduct delinquent the of contempt municipal court order (if court 17 age turns child notmay to refer juvenile or court); y in child/person hold contemptcourt of $500; - max fineand/or suspension - order or denial until of DL child/person fully complies with orders. Applies Failure to to Failure

— Health and SafetyHealth and Code refer the refer childto the tobacco complete to Failure retain jurisdiction and hold Sec. 38.10, P.C. Sec. charged. be may Appear Art. 45.058, C.C.P. Court issue for may an order custody. nonsecure Art. 45.057(h), C.C.P. with charged be may Child to failure of offense the of notice written provide an is (It address. current affirmative defense to and child the if prosecution of informed not were parent the notify to obligation their address.) of change of court Secs. 521.201(8) and T.C. 521.294(6), Court reportmay failure to DPS. to appear Art. 45.050, C.C.P. 17; age under children to: 17 age turn who children proceedings contempt before who persons and held; can be order court obey to failed Court older. 17 or age while must provide notice of and on a hearing conduct may: court before contempt, y delinquent for court juvenile the of contempt for conduct municipal court orderchild (if not may court 17 age turns or court); juvenile to refer y child/person in contempt of court $500; - max fineand/or suspension - order denial or until of DL child/person fully complies with orders. defendants: All y section see course, awareness chart. this penalties on

Failure to to Failure

— Education Code refer the refer childto the retainjurisdiction and Sec. 38.10, P.C. Sec. charged. be may Appear Art. 45.058, C.C.P. order an issue may Court custody. nonsecure for Art. 45.057(h), C.C.P. charged be may Child with the offense of failure notice written provide to isof current address. (It anaffirmative defense to child the if prosecution not were parent and informed of their the notify to obligation of change of court address.) Secs. 521.201(8) and T.C. 521.294(6), Court reportmay failure DPS. to appear to Art. 45.050, C.C.P. children to: Applies children 17; age under turnwho agebefore 17 can proceedings contempt who persons and held; be order court obey to failed older. 17 or age while provide must Court notice of andconduct a contempt, on hearing before court may: y for court juvenile for conduct delinquent the of contempt municipal court order (if court 17 age turns child notmay to refer juvenile or court); y in child/person hold contemptcourt of $500; - max fineand/or suspension - order or denial until of DL child/person fully complies with orders. Applies to: to: Applies Failure to to Failure

— Code/DUI/BUI Alcoholic Beverage refer thechild refer the to juvenile retain jurisdiction and hold alcohol complete to Failure Court reportmay failure to DPS. to appear Appear be charged.may Appear Art. 45.058, C.C.P. Court issuemay for an order custody. nonsecure Art. 45.057(h), C.C.P. the with charged be may Child provide to failure of offense address. current of notice written to defense affirmative an is (It and child the if prosecution of informed not were parent the notify to obligation their address.) of change of court Secs. 521.201(8) and T.C. 521.294(6), Sec. 38.10, P.C. Sec. Art. 45.050, C.C.P. children under age17; children contempt before 17 age turn who and held; be can proceedings court obey to failed who persons order while age 17 or older.Court mustprovide notice of and conduct court before contempt, on hearing a may: y for conduct delinquent for court contemptthe of municipal court order (if childturns17 age court or court); juvenile to refer not may y court of contempt in child/person $500; - max fineand/or suspension - order denial or until of DL child/person fully complies with orders. defendants: All y awareness course, see section on chart. this penalties Applies to: to: Applies Failure to Appear Appear to Failure —

refer thechild refer the to juvenile court for retain jurisdiction and hold awareness alcohol complete to Failure Alcoholic Beverage Code 38.10, P.C. Sec. Art. 45.050, C.C.P. may be charged. may Art. 45.058, C.C.P. Court issue for may an order custody. nonsecure Art. 45.057(h), C.C.P. the with charged be may Child written provide to failure of offense an is (It address. current of notice if prosecution to defense affirmative not were parent and child the informed of their obligationnotify to the court of change of address.) Secs. 521.201(8) and 521.294(6), T.C. children under age17; children who turn age 17 before contempt persons and held; be can proceedings who failedto obey court order while age 17 or older.Court mustprovide notice of and conduct a hearing on contempt,before court may: y delinquent conduct for contempt of the age turns child (if order court municipal juvenile to refer not may court 17 or court); y court of contempt in child/person $500; - max fineand/or suspension - order denial or until of DL child/person fully complies with orders. defendants: All y this penalties on section see course, chart. Court may report failure to appear to to appear to failure report may Court DPS.

to Failure Appear Violation of a Court Order; to Failure Fine:Pay Art. 45.050, C.C.P.

Page 58 The Recorder August 2011 Chapter 729 729 Chapter Transportation Code Ch. 55, C.C.P. C.C.P. 55, Ch. must order Expunction district in filed be court. Art. 45.060, C.C.P. used have must Court all available under procedures secure to 45 Chapter while appearance 17 of age the under proceeding before 45.060, Art. under C.C.P. older, 17 or age At to order an issues court must Order appear. have a warning about obligation continuing that and to appear may appear to failure result in a warrant issued. being person failsIf to notice, after appear file may prosecutor complaint for violation of obligationappear to and 45.060 Art. under court issue may a warrant of arrest.

Penal Code Court must notify child of of child notify must Court Court must give copy of Art. one than more Not Child apply may on or after court; trial to Apply under request makes Child fee. $30 charge shall Court Art. 45.0216, C.C.P. y right; y defendant to C.C.P., 45.0216, parent; and y conviction; y 17; age y y oath; y Art. 45.060, C.C.P. all used have must Court under procedures available secure to 45 Chapter the under while appearance proceeding before 17 of age C.C.P. 45.060, Art. under court older, 17 or age At issues an order to appear. Order must have a warning about continuing obligation to to failure that and appear appear result may in warrant a issued. being person failsIf to appearafter notice, prosecutor may file complaint for violation of under appear to obligation may court and 45.060 Art. issuearrest. warrant a of Code

Health and Safety Safety and Health Court shall charge $30 $30 charge shall Court May apply to have must Applicant haveMay multiple fee. Sec. 161.255, H.S.C. y municipal court to have expunged; conviction y completed tobacco course; awareness y as expunged convictions long as applicant completed tobacco for course awareness conviction. each y y Art. 45.060, C.C.P. used have must Court procedures available all to 45 Chapter under while appearance secure 17 of age the under under proceeding before Art. 45.060,C.C.P. court older, 17 or age At to issues an order have must Order appear. a warning about to obligation continuing appear and that failure a in result may appear to issued. being warrant appear to fails person If prosecutor notice, after may file complaint for violation of obligation Art. under appear to may court and 45.060 arrest.issue warrant a of Education Code May apply to municipal court if only one one only if court municipal to apply May school; attend to failure of offense for conviction May apply at age 18; oath; under made request written submit Must applicant; by determined submission of Form Mustpay $30 fee. Court must notify child of right; right; of child notify must Court Courtmust give copy of Art. 45.055,C.C.P., to parent and defendant shall court convictions, of number of Regardless with complied successfully individual if expunge 45.054. Art. under imposed conditions any shall court convictions, of number of Regardless 21) age (by proof presents individual if expunge of high school diploma or equivalency certificate. Court must notify child of right; right; of child notify must Court Court must give copy of Art. 45.0216,C.C.P.; conviction; one than more Not Child may apply on or after age 17; court; trial to Apply oath; under request makes Child

Court shall charge $30 fee. charge shall Court

Art. 45.055(e) 45.055(e) Art. Art. 45.0216, C.C.P. Offenses: Code Education fine-only Other y y y y y y y Art. 45.055(a) 45.055(a) Art. Art. 45.060, C.C.P. under procedures available all used have must Court Chapter 45 to secure appearance while under theage C.C.P. 45.060, Art. under proceeding before 17 of appear. to order an issues court older, 17 or age At Order must have a warning about continuing may appear to failure that and appear to obligation issued. being a warrant in result may prosecutor notice, after appear to fails person If file complaint for violation of obligationappear to of a warrant issue may court and 45.060 Art. under arrest. Art. 45.055(a) 45.055(a) Art.

Code/DUI/BUI Alcoholic Beverage Court shall charge $30 fee for for fee $30 charge shall Court application. each Sec. 106.12, A.B.C. Yes. May apply to municipal one only if 21 age at court Alcoholic under conviction Code. Beverage Sec. 106.12(d), A.B.C. Art. 45.060, C.C.P. all used have must Court under procedures available appearance secure to 45 Chapter before 17 of age the under while proceedingunder Art. 45.060, C.C.P. issues court older, 17 or age At must Order appear. to an order have a warning aboutcontinuing that and appear to obligation a in result may appear to failure issued. being warrant person failsIf toafter appear notice, prosecutor may file complaint for violation of Art. under appear to obligation a issue may court and 45.060 warrant of arrest.

Alcoholic Beverage Code Sec. 106.12, A.B.C. Yes. May apply to municipal one only if 21 age at court Alcoholic under conviction Code. Beverage Sec. 106.12(d), A.B.C. Courtshall charge $30 fee for application. each Art. 45.060, C.C.P. all used have must Court under procedures available secure to 45 Chapter age the under while appearance under proceeding before 17 of Art. 45.060,C.C.P. issues court older, 17 or age At must Order appear. to an order have a warning about appear to obligation continuing may appear to failure that and result in abeing warrant issued. person failsIf to appearafter notice, prosecutor may file complaint for violation of Art. under appear to obligation a issue may court and 45.060 warrant of arrest.

⁵ Expunction Turns Child 17 after Age to Failure Appear

Page 59 The Recorder August 201

capias capias is is fine

: pro

Chapter 729 729 Chapter thatperson is age 17 thatissuance of Convictions reported to fails child if DPS, case when DPS that the court has Court required to report to report required Court DPS, childwhen found makes child when DPS, Transportation Code Art. 45.045, C.C.P. determine must Court issuingbefore a fine pro y or older; y capias Sec. 543.203, T.C. y to DPS. Sec. 521.3452, T.C. 17 age Under y to appear. failure Secs. 521.201(7) and T.C. 521.294(5), y appear; y adjudicated. Sec. 521.3451, T.C. y failure to incontempt for 45.050, underpay Art. courtC.C.P. orders & denial of suspension or DL.; y final disposition. justified (must (must justified sophistication consider criminal maturity, & record andhistory of individual, and the reasonable likelihood the about bringing of discharge of judgment procedures); other by and y proceeded under Art. C.C.P. 45.050,

capias capias pro pro capias

Under age is justified (must (must is justified Penal Code

fine

thatperson is age 17 or thatissuance of case when court Juvenile case when court Juvenile to fails child if DPS, case DPS when that the court has DPS, DPS, childwhen found in final makes child when DPS, prosecutor conviction, Upon Art. 45.045, C.C.P. determine must Court issuingbefore a fine: y older; y F.C. 51.08(c), Sec. Under age 17 y filed; y disposed. Secs. 521.201(8) and 521.294(6), T.C. 17 y appear; y adjudicated. Sec. 521.3451, T.C. y contempt for failure to pay under Art. 45.050, C.C.P. & or suspension orders court DL; denial of y disposition. Sec. 15.27, P.C. y required notify to of school conviction of assault and drug of possession paraphernalia. pro consider sophistication & & sophistication consider record criminal maturity, andhistory of individual, reasonable the and bringing of likelihood about the discharge of other by judgment and procedures); y proceeded under Art. C.C.P. 45.050,

capias capias capias Under Under is justified (must (must is justified : that the court has thatperson is age 17 or thatissuance of DPS, if defendant fails fails defendant if DPS, DPS, if child fails to to fails child if DPS, case DPS when DPS, when child makes DPS, DPS, childwhen found in Health and SafetyHealth and Code consider sophistication & & sophistication consider record criminal maturity, andhistory of individual, reasonable the and bringing of likelihood about the discharge of other by judgment and procedures); y proceeded under Art. C.C.P. 45.050, pro fine pro y older; y pro fine pro All minors y of evidence present to tobacco- of completion or program related Court service. community DL order to required suspended or denied for a 180 to exceed not period days. Secs. 521.201(8) and 521.294(6), T.C. Art. 45.045, C.C.P. determine must Court issuingbefore a Sec. 161.254, H.S.C. 17 age y appear; y adjudicated. Sec. 521.3451, T.C. y paycontemptto failure for under Art. 45.050, C.C.P. & court orderssuspension or DL; denial of y final disposition. capias Under Under is justified justified is

capias pro fine pro capias Education Code : thatperson is age 17 or older; thatissuance of that the court has proceeded under Art. filed; case when court Juvenile Juvenile court when case disposed. appear; to fails child if DPS, DPS when case adjudicated. DPS, DPS, when child found in contempt for failure to disposition. final makes child when DPS, pro fine pro y y maturity, & sophistication consider (must and individual, of history and record criminal the reasonable likelihoodbringing of about other by judgment of discharge the and procedures); y C.C.P. 45.050, 17 age Under y y Secs. 521.201(8) and 521.294(6), T.C. 17 age y y Sec. 521.3451, T.C. y court C.C.P. 45.050, orders underpay & Art. DL; denial of suspension or y Art. 45.045, C.C.P. a issuing before determine must Court F.C. 51.08(c), Sec. :

capias pro fine fine pro capias capias pro fine pro capias Code/DUI/BUI Alcoholic Beverage Under age 17 thatperson is age 17 or older; thatissuance of that the court has proceeded Juvenile court casewhen filed; Juvenile court casewhen disposed. appear; to fails child if DPS, case adjudicated. when DPS, DPS, when child found in contempt final makes child when DPS, if Commission, Bev. Alcoholic Tex. suspension DL of order court DPS, DPS, upon conviction, order of upon conviction, order of DPS, Art. 45.045, C.C.P. before determine must Court a issuing Sec. 51.08(c), F.C. 17 age Under y y Secs. 521.201(8) and 521.294(6), T.C. y y Sec. 521.3451, T.C. y for tofailure under pay 45.050,Art. courtsuspensionC.C.P. orders & or DL; denial of y disposition. Sec. 106.116, A.B.C. y requested. Sec. 106.117, A.B.C. All minors y months six to exceed not denial or alcohol complete to failure upon program community awareness or service. All minors All y under acquittal and deferred, 106.041. Sec. 106.115(d), A.B.C. y y is justified (must consider consider (must justified is maturity, & sophistication of history and record criminal reasonable the and individual, the about bringing of likelihood other by judgment of discharge and procedures); y C.C.P. 45.050, Art. under :

capias pro pro capias capias pro fine pro capias Under age 17 is justified (must consider consider (must justified is thatperson is age 17 or older; thatissuance of that the court has proceeded Juvenile court casewhen filed; Juvenile court casewhen of order upon conviction or DPS, DL of order court DPS, DPS, if child fails to appear; appear; to fails child if DPS, case adjudicated. when DPS, DPS, childwhen found in final makes child when DPS, Commission, Bev. Alcoholic Tex. Alcoholic Beverage Code Art. 45.045, C.C.P. before determine must Court a issuing y y fine maturity, & sophistication of history and record criminal reasonable the and individual, about bringing of likelihood by judgment of discharge the other procedures); and y C.C.P. 45.050, Art. under Sec. 51.08(c), F.C. 17 age Under y y disposed. Secs. 521.201(8) and 521.294(6), T.C. minors All y deferred. Sec. 106.115(d), A.B.C. All minors y suspension denialor not to exceed six months upon failure to complete alcohol or program awareness community service. y y Sec. 521.3451, T.C. y contempt for failure to pay under Art. 45.050, C.C.P. court & orders DL; denial of suspension or y disposition. Sec. 106.116, A.B.C. y requested. if Sec. 106.117, A.B.C.

; Art. Turns Child after 17 age to Failing Fine; Pay Pro Copias Fine 45.045, C.C.P. Reports

Page 60 The Recorder August 2011

Chapter 729 729 Chapter Parent includes a with appear to Failure a parenting Attend school child’s Attend for $100 up to Pay or act an do to Parent the notify to Failure Court required to issue issue to required Court with appear to Failure Transportation Code Art. 45.0215, C.C.P. y summons for parents. y a in court is C Class child misdemeanor. C.C.P. 45.057(a), Art. y in standing person a relation, parental conservator, managing or a custodian. C.C.P. 45.057(g), Art. y a is court in child misdemeanor. C Class Art. 45.057, C.C.P. order: may Court y class. y classes functions. & y special program for child. y refrain from doing an act that will increase likelihood thatchild comply. will Art. 45.057(h), C.C.P. y the of writing in court address current child’s C Class is a misdemeanor.

Penal Code Parent (or defendant) must for court- pay educational ordered child for program convicted of sexting. Parent includes a person person a includes Parent with appear to Failure class. a parenting Attend school child’s Attend special for $100 to up Pay or act an do to Parent court the notify to Failure Court required to issue issue to required Court child to appear Failure with

Art. 45.0215, C.C.P. y summons for parents. y a is Class C in court misdemeanor. C.C.P. 45.057(a), Art. y parental in standing managing a relation, conservator,custodian. or a C.C.P. 45.057(g), Art. y C Class a is court in child misdemeanor. Art. 45.057, C.C.P. order: may Court y y functions. & classes y child. for program y refrain from doingact an increase will that likelihood thatchild will comply. Art. 45.057(h), C.C.P. y child’s the of in writing Class a is address current C misdemeanor. Art. 45.061,C.C.P.

Municipal Juvenile/Minor Chart continued next page Parent includes a person person a includes Parent with appear to Failure class. a parenting Attend school child’s Attend for $100 up to Pay or act an do to Parent the notify to Failure Court required to issue issue to required Court with appear to Failure Health and SafetyHealth and Code Art. 45.0215, C.C.P. y summons for parents. y a in court is C Class child misdemeanor. C.C.P. 45.057(a), Art. y parental in standing managing a relation, conservator, or a custodian. C.C.P. 45.057(g), Art. y C Class a is court in child misdemeanor. Art. 45.057, C.C.P. order: may Court y y classes functions. & y child. for program special y refrain from doingact an increase will that likelihood thatchild will comply. y the of writing in court is address current child’s misdemeanor. C a Class Art. 45.057(h), C.C.P.

Education Code Code Education

May be charged with the offense of Parent Parent of offense the with charged be May at students for class a attend to parent Order Parent includes a person standing in in standing person a includes Parent class. a parenting Attend functions. & classes school child’s Attend for program special for $100 to up Pay Parentdo to an act or refraindoing from an the of writing in court the notify to Failure Failure to comply with summons to appear towith appear summons to comply with Failure Court required to issue summons for parents. parents. for summons issue to required Court child in court is to appear C a with Class Failure Art. 45.0215, C.C.P. y y misdemeanor. Sec. 25.093. E.C. y Contributing to Nonattendance, a Class C misdemeanor. Art. 45.054, C.C.P. y riskdropping of out of school. C.C.P. 45.057(a), Art. y or conservator, managing a relation, parental a custodian. Art. 45.057, C.C.P. order: may Court y y y child. y act that will increase likelihood that child comply. will Art. 45.054(d), C.C.P. y a school to attend is charged failure with child Class C misdemeanor. Art. 45.057(h), C.C.P. y C Class a is address current child’s misdemeanor.

current

Code/DUI/BUI Alcoholic Beverage Parent includes a person person a includes Parent in child with appear to Failure in court the notify to Failure Attend a parenting class. a parenting Attend & classes school child’s Attend special for $100 to up Pay Parentdo to an act or refrain do to parent order may Court Court required to issue summons summons issue to required Court child in to appear Failure with y a relation, parental in standing managingconservator, or a custodian. C.C.P. 45.057(g), Art. y misdemeanor. C a Class is court Art. 45.057(h), C.C.P. y child’s the of writing Art. 45.0215, C.C.P. y parents. for y a is court Class C misdemeanor. C.C.P. 45.057(a), Art. C Class a is address misdemeanor. Art. 45.057, C.C.P. Court may order: order: may Court y y functions. y child. for program y will that an act doing from increase likelihood thatchild comply. will Sec. 106.115(d), A.B.C. y any act or refrain fromact an to increase likelihood that minor awareness alcohol complete will to fails child after program program. complete

Parent includes a person person a includes Parent in child with appear to Failure in court the notify to Failure class. a parenting Attend classes school child’s Attend special for $100 to up Pay Parentdo to an act or refrain Court may order parent to do do to parent order may Court Court required to issue summons summons issue to required Court in child with appear to Failure y a relation, parental in standing managingconservator, or a custodian. C.C.P. 45.057(g), Art. y C a Class is court misdemeanor. Art. 45.057(h), C.C.P. y current child’s the of writing C Class a is address misdemeanor. Art. 45.057, C.C.P. order: may Court y y functions. & y child. for program y will that an act doing from increase likelihood thatchild comply. will Alcoholic Beverage Code Art. 45.0215, C.C.P. y parents. for y a is court Class C misdemeanor. C.C.P. 45.057(a), Art. Sec. 106.115(d), A.B.C. y any act or refrain fromact an to increase likelihood that minor alcohol complete will child after program awareness program. complete to fails

Parents

Page 61 The Recorder August 201 1 Art. 45.056, C.C.P., provides authority for municipal courts to employ case managers for juvenile cases. Sec.51.08, F.C., provides that a court that has implemented a juvenile case manager program under Art. 45.056, C.C.P., may, but is not required to, waive its original jurisdiction under subsection (b)(1) of Section 51.08, F.C. Article 102.0174, C.C.P., provides that cities may adopt an ordinance creating a juvenile case manger fund and collect a fee of up to $5 to fund a juvenile case manager.

2 Art. 45.057, C.C.P. – When a child who is at least 10 years old and younger than age 17 is charged with a fi ne-only offense, the court may, in addition to a fi ne, order the following sanctions: 1) Refer the child or child’s parent for services under Sec. 264.302, F.C.; 2) Require child to attend a special program that is in best interest of child, including rehabilitation, counseling, self-esteem and leadership, work and job skills training, job interviewing and work preparation, self-improvement, parenting, manners, violence avoidance, tutoring, sensitivity training, parental responsibility, community service, restitution, advocacy or mentoring program; 3) Require parents to do an act or refrain from an act that will increase the likelihood that the child will comply with court orders, including attending a parenting class or parental responsibility program and attending the child’s school classes or functions; 4) Order the parents of a child required to attend a special program to pay an amount not greater than $100 for the costs of the program; 5) Require both the child and parent to submit proof of attendance. (If program involves the expenditure of county funds, county must approve child’s attendance.)

Deferred Disposition • If the court grants deferred for all Alcoholic Beverage Code offenses except DUI, the court must require the defendant to perform the community service requirements and attend an alcohol awareness course; for DUI, the court must require an alcohol awareness course. • If defendant charged with the offense of public intoxication is under age 21, and the court grants deferred, the court must order the community service requirements under Sec. 106.071, A.B.C., and attendance at an alcohol awareness course.

3 A dispositional order under Art. 45.054, C.C.P., is effective for the period specifi ed by the court in the order but may not extend beyond the 180th day after the date of the order or beyond the end of the school year in which the order was entered, whichever period is longer.

4 Art. 45.059, C.C.P., Children Taken into Custody for Violation of Juvenile Curfew or Order: 1) Release person to parent, guardian or custodian; 2) Take person before a justice or municipal court; or 3) Take person to juvenile curfew processing offi ce (similar to nonsecure custody and not held for more than six hours).

5 Art. 45.0216, C.C.P., provides that proceedings under Art. 45.051, C.C.P. (Deferred Disposition), and proceedings under Art. 45.052, C.C.P. (Teen Court), may be expunged under Art. 45.0216, C.C.P.

6 Under Sec. 25.093(f), E.C., when a court grants deferred disposition to a parent charged with parent contributing to nonattendance, the court may require the defendant to attend a program that provides instruction designed to assist the parent in identifying problems that contribute to his or her child’s absence from school and strategies for resolving those problems. ATTENTION

H.B. 961, passed in the 82nd legislature, replaces procedures for nondisclosure with procedures that conditionally make particular criminal case records confi dential. Article 45.0217 provides that all records and fi les, including those held by law enforcement and all electronically stored information, relating to a child who is convicted of an has satisfi ed the judgment for a fi ne-only misdemeanor offense other than a traffi c offense are confi dential. Confi dential records may not be released to the public, but they can be inspected by judges, court staff, a criminal justice agency for a criminal justice purpose, DPS, the defendant, the defendant’s attorney, a prosecuting attorney, or the defendant’s parent, guardian, or managing conservator. Like nondisclosure orders, this new confi dentiality protection only applies to cases in which a conviction is obtained. This means there is no confi dentiality for records related to a case where a child defendant receives deferred disposition and the case is subsequently dismissed or where a child gets a dismissal from successful completion of teen court. Unlike nondisclosure, this new confi dentiality does not attach to records until the judgment is satisfi ed. H.B. 961 applies to convictions before, on, or after the effective date of the act. All cases subject to an existing nondisclosure order will still be subject to the nondisclosure order.

Note: The TMCEC Academic Schedule and At-A-Glance list of courses can be located at www.tmcec.com. Please remember to register early. Courses fi ll up quickly!

Page 62 The Recorder August 2011 Expunctions: JUVENILES AND MINORS

Alcoholic Beverage Health & Safety Code of Criminal Procedure Code of Criminal Procedure Art. 45.0216 Code Sec. 106.12 Code Sec. 161.255 Art. 45.055 Offenses Purchase of Alcohol by Possession, Purchase, Failure to Attend School Penal Offenses a Minor (Section Consumption, Or (Section 25.094, E.C.) Court must inform of right to expunction 106.02); Receipt of Cigarettes in open court and give copy of law to child Attempt to Purchase Or Tobacco Products Court must inform of right to and parent. Alcohol by a Minor By Minors Prohibited expunction in open court and (Section 106.25); (Section 161.252). give copy of law to child and Penal Code-Class C misdemeanors Consumption of parent. Alcohol by a Minor Education Code offenses: (Section 106.04); Rules Enacted by School Board Driving or Operating (Section 37.102); Watercraft Under the Trespass on School Grounds Influence of Alcohol by (Section 37.107); Minor (DUI) (Section Possession of Intoxicants on School 106.041); Grounds (Section 37.122); Possession of Alcohol Disruption of Classes (Section by a Minor (Section 37.124); 106.05); and Disruption of Transportation Misrespresentation of (Section 37.126); and Age by a Minor (Section A Member of a Fraternity, Sorority, 106.07). Secret Society, or Gang that is not Sanctioned by Higher Education (Section 37.121).

Possession of Drug Paraphernalia (Section 481.125, H.S.C.)

City of ordinance penal offenses

Age to Apply At least age 21. No age requirement. At least age 18. At least age 17.

Requirements Must have had only one Multiple convictions Must have had only one Only one conviction of any penal fine- conviction while a minor may be expunged, but conviction (Section only offense described in Section 8.07 under A.B.C. must have completed 45.055(a)) (a)(4) or (5) P.C. tobacco awareness Regardless of number of program or tobacco convictions, successful While person was a child or only one related community compliance with conviction under section 43.261, P.C. service. conditions imposed by the court under Article 45.054 Also applies to dismissals of penal (Section 45.055(e)(1)) offenses under Article 45.052, C.C.P. Regardless of number of (Teen Court) or Article 45.051, C.C.P. convictions, high school (Deferred Disposition). diploma or equivalency certificate presented prior to age 21 (Section 45.055(e)(2))

Court Petitioned Municipal court in which Municipal court in Municipal court in which Municipal court in which convicted. convicted. which convicted. convicted.

Affidavit or Proof Sworn statement that they Sworn statement that Sworn statement that they have Sworn statement that they were not have had only one conviction. they have completed had only one conviction. convicted of any additional offense; or for tobacco awareness (Section 45.055(a)) expunction of a sexting offense, found to program or tobacco- Court finds the individual have engaged in conduct indicating a need related community successfully complied with for supervision described by Section 51.03 service. Article 45.054 conditions (b)(7), F.C. (Section 45.055(e)(1) Proof presented, prior to age 21, of high school diploma or equivalency certificate (Section 45.055(e)(2)

Hearing Optional Optional Optional Optional

Fee January 1, 2006 $30 fee January 1, 2006 $30 fee January 1, 2006 $30 fee January 1, 2006 $30 fee required required required required

Page 63 The Recorder August 201 TRAFFIC SAFETY AND TRANSPORTATION CODE AMENDMENTS

and counties must comply and notice of making a phone call, using voice — High Priority — must be given to TxDOT. H.B. commands or hands-free devices 109 adds Section 545.3561 to the to send a message, and using GPS Subject: Duty to Report Collision Transportation Code, which contains navigation did not constitute an with a Structure the process to use, and requires that a offense. The bill did not include a H.B. 42 short-term speed limit sign be posted, penalty for the texting offense; thus, Effective: September 1, 2011 a permanent sign be concealed, and the general penalty provision found all signs returned to normal once the in Section 542.401—a fi ne of not less Currently, a motor vehicle operator investigation is complete. than $1 or more than $200—would who damages a structure (e.g., a apply to the new offense. building, house, or fence) on the side Subject: Texting While Driving of a highway and who leaves the Offense; Reckless Driving Penalty Commentary: H.B. 242 received a scene of the accident is not criminally H.B. 242 great deal of publicity when it passed; liable. Furthermore, an operator who Effective: VETOED BY however, much of the media attention damages such property is not required GOVERNOR incorrectly reported the offense to be to give or leave the operator's contact a Class B misdemeanor if the texting information. Section 7 of H.B. 242 amended the driver caused a crash that resulted reckless driving statute (Section in serious bodily injury to or death H.B. 42 makes it a criminal offense 545.401 of the Transportation Code) of another. This was inaccurate as to damage a structure adjacent to a to provide that if the offense resulted that penalty was associated with the highway and leave the scene without in serious bodily injury to or the reckless driving offense in Section locating or notifying the owner of death of another, it was a Class B 7 of the bill and not with the texting the damaged property and providing misdemeanor punishable by a fi ne of offense in Section 8. Despite attempts contact information. If the damage up to $2,000 and/or up to 180 days to correct this misrepresentation, is less than $200, failure to comply confi nement (compared to the current many still believed that the with the bill’s provisions is a Class C reckless driving punishment of a fi ne Legislature made texting while misdemeanor. If the damage is $200 of up to $200 and/or up to 30 days driving a jailable offense. or more, it is a Class B misdemeanor. confi nement). On June 17, 2011, Governor Rick Commentary: In addition to Furthermore, the convicting court Perry vetoed H.B. 242 with the the previously covered fi xture or could order a minimum 30-day following statement: landscaping legally on or adjacent to driver’s license suspension and a highway, this bill adds language to require the defendant to complete a Texting while driving is reckless Section 550.025 of the Transportation driving safety course. and irresponsible. I support Code, and now also covering damage measures that make our roads to a structure adjacent to a highway. Section 8 of the bill amended Section safer for everyone, but House 545.425 of the Transportation Bill 242 is a government effort Subject: Lowering Speed Limits at Code, which includes the cell phone to micromanage the behavior Accident Reconstruction Sites offenses. Added Subsection (c-1) of adults. Current law already H.B. 109 provided that an operator may not use prohibits drivers under the age Effective: September 1, 2011 a hand-held wireless communication of 18 from texting or using a cell device to read, write, or send a phone while driving. I believe H.B. 109 allows municipalities and text-based communication while there is a distinction between the counties to temporarily lower speed operating a motor vehicle unless overreach of House Bill 242 and limits at accident reconstruction the vehicle was stopped. Text- the government's legitimate role sites without Texas Department of based communication was defi ned in establishing laws for teenage Transportation (TxDOT) approval. to include text messages, instant drivers who are more easily TxDOT is required to develop safety messages, and emails. Reading a distracted and laws providing guidelines with which municipalities phone number or name for purposes further protection to children in

Page 64 The Recorder August 2011 school zones. restrictions on the use of lights. requiring DPS to offer incentives, including reduction of surcharges The keys to dissuading drivers of Commentary: The law requires or decreases in the length of an all ages from texting while driving vehicle operators approaching an installment plan. The law does not are information and education. I emergency vehicle or stationary specify what the incentives must be. recommend additional education tow truck that is stopped alongside on this issue in driving safety and a road to vacate the lane nearest the During this session, two bills were driver's education courses, public emergency vehicle or reduce speed fi led that would have repealed the service ads, and announcements, by 20 miles per hour if no other lane entire Driver Responsibility Program, and I encourage individuals and exists. The bill also adds a defi nition as the amount of uncollected organizations that testifi ed in of tow truck for application purposes. surcharges far surpasses the amount favor of the anti-texting language of revenue that has been generated included in this bill to work with Subject: Advance Payment of since the program took effect in 2003. state and local leaders to educate Driver Responsibility Program Neither bill passed. Only two bills the public of these dangers. Surcharges relating to the Driver Responsibility H.B. 588 Program will become law (H.B. 588 To recap, while we expect similar Effective: September 1, 2011 and H.B. 2851). texting bills to be introduced next session and that more Texas cities Currently, under the Driver Subject: Exception to Stopping will ban texting while driving, H.B. Responsibility Program, there is Requirement at Dark Pedestrian 242 did not become law. State no option for advance payment Beacons and Freeway Entrance law does not prohibit texting while of a surcharge, which is assessed Control Signals driving. The penalty for reckless over 36 months. Coupled with the H.B. 885 driving remains unchanged. change from H.B. 2730 (81st Regular Effective Date: June 17, 2011 Legislature, effective September 1, Subject: Passing a Stationary Tow 2011), requiring a person to pay a This bill allows for the uniform Truck $500 surcharge in no less than 36 installation of pedestrian crossing H.B. 378 months, license holders assessed lights and freeway entrance control Effective: September 1, 2011 surcharges cannot get out from signals by changing current law that under the surcharge program before requires motorists to stop at any dark Tow truck operators are often the the duration of that payment plan traffi c signal display (as if it were a fi rst ones at an accident scene and period (at a minimum of one year). stop sign). Motorists are still required are often the only responders at an Notifying the person of the amount to stop at other dark traffi c signals, incident scene such as a break-down they will owe over the 36-month but the law provides an exception for or fl at-tire. Towing professionals period, together with an advanced pedestrian hybrid beacons and also know too well the dangers of being payment option, would provide an similar signals at freeway entrance on the side of the road as traffi c drives opportunity for the person to make points. Pedestrian beacons and by. Tragically, an average of one tow an informed decision about making freeway entrance control signals are operator is killed each week in the a single up-front payment. H.B. currently being utilized in 21 states, United States while providing service 588 adds Section 708.159 to the and there are pilot projects in Austin to a motorist. Transportation Code, providing for and various other Texas cities. A the advance payment of surcharges pedestrian hybrid beacon is similar H.B. 378 amends Section 545.157 under the Driver Responsibility to a traffi c light and fl ashes yellow of the Transportation Code to make Program. and then turns red so pedestrians can provisions relating to passing an safely cross. Once the pedestrian authorized emergency vehicle Commentary: The up-front has crossed, the light dims allowing applicable to a stationary tow truck payment option applies to total traffi c to continue as normal. The using authorized equipment. The bill surcharge amounts owed by a person beacons are especially helpful on makes provisions relating to stopping, for a 36-month period regardless busy streets where it is tough for standing, or parking a vehicle outside of whether the initial surcharge pedestrians to cross. They also a business or residence district was assessed before, on, or after increase a motorist's awareness of inapplicable to such a tow truck. The September 1, 2011. H.B. 588 also pedestrians who are crossing the road. bill also adds a tow truck to the list of amends Section 708.157 of the vehicles with a warning lamp that are Transportation Code, mandating The device has been vetted by exempt from provisions relating to a compliance incentive program, organizations such as the Federal

Page 65 The Recorder August 201 Highway Administration, the Transportation Code to make these additionally, a police offi cer of the Transportation Research Board, vehicles exempt from the compulsory following described municipalities and many others, but the Texas inspection requirement. Thus, is eligible to apply for certifi cation Department of Transportation is once a vehicle has been certifi ed as under this section: (a) a police offi cer unable to include the beacons in its roadworthy and received a custom from a municipality that is located Manual on Uniform Traffi c Control or street rod designation, it will be within 25 miles of an international Devices due to confl ict with current exempt from annual inspections. port, is in a county that does not statute. H.B. 885 amends current contain a highway that is part of law relating to the operation and The bill defi nes "custom vehicle" to the national system of interstate movement of a vehicle when certain mean a vehicle that (1) is at least 25 and defense highways, and is in a traffi c-control signals do not display years old and of a model year after county adjacent to a county with a an indication. 1948 or manufactured to resemble a population greater than 3.3 million; or vehicle that is at least 25 years old (b) a police offi cer in a municipality Commentary: It is an offense under and of a model year after 1948, and with a population of less than 8,500 Section 544.007 of the Transportation (2) that has been altered from the that is the county seat and contains a Code for an operator to fail to stop manufacturer's original design or has highway that is part of the national when facing a traffi c-control signal a body constructed from materials system of interstate and defense that does not display an indication. not original to the vehicle. The bill highways. Prior to the passage of this bill, defi nes "street rod" to mean a vehicle Section 544.007 required a motorist that (1) was manufactured before Commentary: Police offi cers to come to a complete stop at a blank 1949 or after 1948 to resemble a certifi ed under Section 644.101 are freeway entrance ramp or pedestrian vehicle manufactured before 1949, also considered weight enforcement beacon—even when the freeway and (2) has been altered from the offi cers for purposes of enforcing entrance ramp traffi c did not need manufacturer's original design or has Sections 621.402 through 621.410 of regulation or no pedestrian was trying a body constructed from materials not the Transportation Code. to cross the roadway. This contributed original to the vehicle. to increased traffi c congestion and Subject: Sale and Use of Radar car accidents. H.B. 885 makes The bill establishes specialty license Interference Devices conforming changes to allow these plates for custom vehicles and street H.B. 1116 traffi c control signals to safely be rods, and provides that a vehicle Effective: September 1, 2011 installed and operated. eligible to receive the specialty license plate is not required to be Current law does not restrict the use Subject: Licensing and Inspection equipped with any piece of equipment of Lidar/radar jamming devices. of Street Rods and Custom Vehicles unless it was required by statute in the Different than a traditional radar H.B. 890 year listed as the model year on the detector, these jamming devices Effective: September 1, 2011 certifi cate of title. emit a radio frequency signal that interferes with the operation of police For many vehicle enthusiasts in Subject: Eligibility of Certain Lidar/radar by saturating its receiver Texas, building, maintaining, and Municipalities to Enforce with noise or false information. This enjoying their vehicles is a favorite Commercial Motor Vehicle Safety interference may damage police pastime. These vehicles are the same Standards equipment and hinders the ability of crowd pleasers that participate in H.B. 1010 police offi cers to measure the speed exhibitions and as parade vehicles and Effective: September 1, 2011 of not only the vehicle equipped with whose owners regularly contribute to the device, but also other speeding charities and civic events. Under Section 644.101 of the vehicles in the vicinity. More than 25 Transportation Code, there are certain states already have laws that prohibit H.B. 890 requires the owner, on municipalities whose police offi cers radar jamming devices. initial registration of a custom vehicle are eligible to apply for certifi cation or street rod, to provide proof that the to enforce federal commercial Commentary: A radar interference custom vehicle or street rod passed motor vehicle safety standards. device is defi ned as a device, a safety inspection approved by the However, many municipalities of mechanism, instrument, or piece Texas Department of Motor Vehicles, certain populations and certain of equipment that is designed, which is charged with creating a locations are not eligible to apply manufactured, used, or intended to safety inspection process. The bill for this certifi cation. H.B. 1010 be used to interfere with, scramble, amends Section 548.052 of the amends current law to provide that, disrupt, or otherwise cause to

Page 66 The Recorder August 2011 malfunction a radar or laser device authorizes the Texas Transportation Transportation Code by establishing used to measure the speed of a Commission, in Section 545.353 of the same speed limit for daytime motor vehicle. They may be called the Transportation Code, to establish and nighttime and raising the speed radar jamming devices, jammers, a speed limit not to exceed 85 limit to 75 miles per hour on state scramblers, or diffusers. They are not miles per hour on a part of the state highways or U.S. highways outside radar detectors. highway system, if the portion of the an urban district. It also removes the road is designed to accommodate different, lesser speed limit for heavy H.B. 1116 makes it an offense to use, that high of a speed and, after an trucks. attempt to use, install, operate, or engineering and traffi c investigation, attempt to operate a radar interference the commission determines the higher Commentary: H.B. 1353 also device in a motor vehicle operated speed is reasonable and safe for that amends Section 545.352 to by a person. It is also an offense portion of the highway. This is one require that any entity (including to purchase, sell, or offer for sale a of two bills (see the commentary for a municipality) that establishes or radar interference device to be used H.B. 1353) where the Legislature felt alters a speed limit to establish the in a motor vehicle operated by a the need…the need for speed. Cities same speed limit for daytime and person. This new offense, codifi ed in and courts should be aware that this nighttime. The bill also provides in Section 547.616 of the Transportation state agency now has the authority to Section 545.356 that a municipality Code, is a “Rules of the Road” raise speed limits in parts of Texas to may establish a speed limit of not offense, but is punishable as a Class a whopping 85 miles per hour. more than 75 miles per hour (up from C misdemeanor carrying a fi ne not 60), provided it does not violate the to exceed $500. Note that this new Subject: Authority to Increase maximum speed limits established in offense does not criminalize the mere Speed Limits; Removal of Section 545.351(a). Importantly, the possession of a radar interference Nighttime or Heavy Truck Speed city must still conduct the engineering device. Limits and traffi c investigation study in H.B. 1353 order to establish a higher prima facie Subject: Texas Transportation Effective: September 1, 2011 speed limit. TxDOT is charged with Commission Authority to Raise concealing or removing and replacing Speed Limits to 85 According to the National Conference speed limit signs that prescribe a H.B. 1201 of State Legislatures, Texas is the lower nighttime or truck speed as Effective: September 1, 2011 only state with different day and soon as practicable after the effective night speed limits on rural and urban date. H.B. 1201 removes all remaining interstates. Currently, lawful speed references in state law to the Trans- limits are 60 or 70 miles per hour in Subject: Altering a Disabled Texas Corridor. With the Texas daytime or 55 or 65 miles per hour Parking Placard Department of Transportation in nighttime. Texas is also one of H.B. 1473 (TxDOT) having already announced the few states that has mandated a Effective: September 1, 2011 the cessation of all efforts to construct different, lesser speed limit for trucks the Trans-Texas Corridor, and given along rural and urban interstates. In 2003, Section 681.0111 of the the signifi cant public opposition to Currently, heavy trucks and trailers Transportation Code (Manufacture, the plan, it is important to reconcile are required to reduce speeds to 60 Sale, Possession, or Use of state law with state policy. Two miles per hour in daytime and 55 Counterfeit Placard) was enacted, provisions struck in the deleting miles per hour in nighttime outside an making it an offense to manufacture, of the Trans-Texas Corridor are urban district. sell, possess, or display a counterfeit replaced: TxDOT's authority to disabled parking placard. Under implement higher speed limits on Speed limits should be set to the current law, only placards that are new roads specifi cally engineered safest maximum speed under normal "similar" to genuine parking placards with those higher speeds in mind (if road conditions. Difference in vehicle are considered counterfeit. The law a safety study supports the higher speeds can contribute to accidents. has a slight loophole on the issue speed limit), and TxDOT's authority H.B. 1353 seeks to minimize the of legally issued placards that have to authorize higher weight limits on number of accidents that can occur expired and been altered to give the exclusive lanes (if engineering and when cars and trucks change lanes appearance of being legal. safety studies support that higher or pass or tailgate slower-moving weight limit). vehicles. Commentary: H.B. 1473 amends current law by creating the offense of Commentary: H.B. 1201 H.B. 1353 amends Chapter 545 of the altering a genuine disabled parking

Page 67 The Recorder August 201 placard—which is punishable as a to be posted at school crossing zones in Subsection (b-2). Class A misdemeanor. A person who when there is a city-wide ban, and knowingly parks a vehicle displaying removing the requirement will save H.B. 1899 attempts to make clear an altered placard in a parking space the taxpayers hundreds of thousands that Section 545.425 preempts or area designated specifi cally for of dollars. local ordinances except for those persons with disabilities commits ordinances prohibiting the use of a Class C misdemeanor offense Commentary: During the 81st a wireless communication device (punishable by a fi ne of up to $500). Regular Legislature H.B. 55 made it while operating a motor vehicle a criminal offense to use a cell phone throughout the jurisdiction of the city Subject: Posting of Signs for Cell in school zone. Section 545.425(b-1) when the city posts warning signs at Phone Use in School Zone and states that municipalities that enforce each point at which a state, U.S., or Throughout Municipality the section shall post warning signs at interstate highway enters the political H.B. 1899 the entrance to each school crossing subdivision and on any dynamic Effective: September 1, 2011 zone. The lack of a posted sign is an message signs operated by the city. affi rmative defense to prosecution Section 545.425 of the Transportation under Subsection (d)(2). Subject: Vehicle Registration Code currently requires political Deadlines and Procedures subdivisions that wish to enforce the H.B. 55 posed problems, as it H.B. 2017 prohibition against the use of wireless appeared to grant cities discretion in Effective: September 1, 2011 communication devices while enforcing a state law. However, H.B. H.B. 2017 is a "clean-up bill" operating a vehicle within a school 55 preempted city ordinances and designed to implement an array zone to post signs at the entrance of home-rule cities like El Paso found of changes needed to update the each school crossing zone. themselves in a diffi cult situation. governance, organization, duties, and H.B. 1899 aims to correct this functions of the current structure of The City of El Paso, a home-rule problem, but not without creating Texas Department of Motor Vehicles municipality, adopted Ordinance new ones. 17286 on March 9, 2010, which (TxDMV) that was created during the 81st Legislature. banned the use of wireless Section 545.425(b-2), added by communication devices within the H.B. 1899, states that a municipality Commentary: Section 502.002 of city limits, effective April 1, 2010. At that prohibits use of a wireless the Transportation Code currently the time of the adoption, the City of communication device while driving requires an owner to apply for El Paso had not completed installing must post similar “warning” signs at registration but does not impose a signs at each school crossing zone each point at which a state, U.S., or time deadline. Section 24 of H.B. entrance. The requirement that such interstate highway enters the political 2017 imposes a 30-day deadline signs be installed was an unfunded subdivision. (It does not, however, on an owner to apply for vehicle mandate from the State, and the City provide express authorization for registration upon purchasing a vehicle of El Paso was unable to fund the general law cities to pass such or becoming a resident of this state. installation at all school sites. (The prohibitions.) Signs posted under average estimated cost of installation (b-2) must be readable to an operator Section 25 of the bill amends the was approximately $1,273.78 per traveling at the applicable speed registration procedures found school.) The consequence of the limit, and messages must also be in Section 502.151 and requires budget shortfall was that school displayed on any dynamic message TxDOT to deny the registration of crossing zones—where there were sign operated by the city located on a commercial motor vehicle, truck- no signs posted—were the only place any state, U.S., or interstate highway tractor, trailer, or semitrailer if the within the City of El Paso where the within the city limits. applicant, among other reasons for El Paso Police Department could not denial, has a business operated, issue citations for the use of wireless Furthermore, H.B. 1899, adds managed, or otherwise controlled communication devices while driving. Subsection (d-1), which provides or affi liated with a person who is that the affi rmative defense of no ineligible for registration or whose H.B. 1899 was intended to cure posted sign at the entrance to a school privilege to operate has been this problem by removing the crossing zone is not available for an suspended, including the applicant requirement for the signs to be posted offense alleging use of a cell phone entity, a relative, a family member, a in communities that adopt a city-wide in a school zone if the school zone corporate offi cer, or a shareholder. ban within their jurisdiction. It is is in a municipality or county that redundant and unnecessary for signs complies with the new requirements Although not much is found in Page 68 The Recorder August 2011 the legislative history behind this 2357 reorganizes and renumbers Code Construction Act provides amendment, it appears that a person much of Chapters 501 (titling that when amendments affecting who has a CDL suspended because of of vehicles), 502 (registration of the same statute are enacted in a traffi c violation would not be able vehicles), 504 (license plates), and the same session, latest in date of to get a commercial motor vehicle 520 (miscellaneous provisions), enactment prevails (see, Chapter 311 registered—thereby committing of the Transportation Code. These of the Government Code). However, a separate offense. Worse yet, non-substantive changes affect because H.B. 2017 takes effect when given a strict reading of the procedures, requirements, fees, September 1, 2011, and H.B. 2357 amendment, a person who owns a prohibitions, and offenses. does not take effect until January business would be denied registration 1, 2012, the question remains as to if they have a family member who Section 502.002 of the Transportation when, if ever, these plates would be has a suspended CDL. Code currently requires an owner to repealed. Could the Legislature intend apply for registration but does not for the plates to not be available just Section 22 of the bill addresses a impose a time deadline. H.B. 2017, for the remainder of 2011? Probably motor vehicle owner’s requirement also passed this Session, imposes not. to apply for a title from the county a 30-day deadline on an owner of assessor-collector in the county a vehicle, trailer, or semitrailer to H.B. 2357 makes non-substantive where the owner is domiciled or apply for registration upon purchase changes to the offenses for no, where the motor vehicle is purchased. or becoming a resident of this state. wrong, fi ctitious, altered, or obscured In light of natural disasters such Section 78 of H.B. 2357 imposes license plates and insignia. Sections as Hurricane Ike, and in a time the same 30-day deadline, but re- 157 and 159 of the bill isolate where state agencies are growing designates Section 502.002 as Section insignia offenses by removing all increasingly concerned with 502.040. reference to license plate offenses. emergency preparedness and disaster Section 502.404 (Operation of planning, the bill provides that if the H.B. 2357 also affects two other Vehicle Without License Plate or county in which the owner resides has changes made by H.B. 2017. Like Registration Insignia) is renumbered been declared a disaster area by the H.B. 2017, Section 81 of H.B. as Section 502.473; and Section Governor, the owner must apply to 2357 requires TxDOT to deny the 502.409 (Wrong, Fictitious, Altered, the county assessor-collector in one registration of a commercial motor or Obscured License Plate) is of the closest unaffected counties as vehicle, truck-tractor, trailer, or renumbered as Section 502.475 and long as their county continues to be semitrailer if the applicant, among will only apply to insignia. License an inoperable disaster area. other reasons for denial, has a plate offenses are moved into the business operated, managed, or new Subchapter L of Chapter 502; The bill also repeals specialty license otherwise controlled or affi liated however, the offenses and compliance plates for state and federal judges, with a person who is ineligible dismissals pertaining to license plates federal administrative law judges, and for registration or whose privilege remain substantively unchanged. Texas constables—although county to operate has been suspended, Sections 221 and 223 of the bill add judges can still get them. For simular including the applicant entity, a Sections 504.943 and 504.945, which changes, see H.B. 2357. relative, a family member, a corporate contain the offenses and compliance offi cer, or a shareholder. However, dismissals for operating a vehicle Subject: Recodifi cation of Motor H.B. 2357 renumbers the affected without two plates, with plates Vehicle Titling, Registration, and section (Section 502.151) to be assigned for the wrong registration License Plate Statutes Section 502.043 period, or with obscured plates. H.B. 2357 Effective: January 1, 2012 Unlike H.B. 2017, which repeals Finally, Section 102 of H.B. 2357 specialty license plates for state and provides that power sweepers, The motor vehicle statutes were federal judges, federal administrative motorized mobility devices, electric codifi ed in 1995, but there has not law judges, and Texas constables, personal assistive mobility devices, been a complete reorganization of H.B. 2357 retains these specialty and electric bicycles cannot be substance since before that time. This license plates, but amends the statutes registered for operation on a public bill directly addresses the problem of to provide that they no longer be highway. Section 239 of the bill adds the statutes being outdated in regard issued without charge and only one a defi nition of a utility vehicle to to automation and organization. set may be issued to each eligible Chapter 551 of the Transportation person (as opposed to the three sets Code, but does not include any Commentary: In 261 pages, H.B. currently allowed under law). The provision disallowing registration of

Page 69 The Recorder August 201 utility vehicles as Section 551.402 for 20 consecutive days. However, citations and warnings issued and does for golf carts. the Senate stripped the proposed the number of accidents resulting revocation out of the bill. (Note, in injury or death occurring on that Subject: Requirements for though, that a reference to this road before and after the speed limit Licensing and Restricted Driving stripped statute remained in amended change. for Minors Section 521.204.) After the Senate’s H.B. 2466 modifi cation, the bill contains very Subject: Deferral of Surcharges for Effective: September 1, 2011 little substance. All H.B. 2466 Deployed Military Personnel appears to do is renumber an existing H.B. 2851 H.B. 2466 amends current law law, repeal a law that was in violation Effective: September 1, 2011 relating to the licensing and operation of federal law, and require parents of motor vehicles by minors. An to give permission for something Under the Driver Responsibility amendment to Section 521.204(a) that won’t have any impact on minor Program, surcharges must be paid of the Transportation Code provides licensing laws. within a certain timeframe to prevent that the Department of Public Safety the suspension of driving privileges. (DPS) may only issue a Class C Subject: Cities’ Authority to Lower Driving privileges remain suspended driver’s license to a person under Speed Limits until the person establishes an 18 if their parent or guardian gives H.B. 2596 installment agreement or pays in full written permission for a school Effective: June 17, 2011 all surcharges and related costs. administrator or law enforcement offi cer to notify the department in the Dangerous conditions may exist H.B. 2851 provides for the deferral event the person has been absent from on one-lane public roads in Texas of surcharge payments for active duty school for at least 20 consecutive that are used for two-way traffi c. military personnel deployed outside instructional days. Interested parties observe that current of the continental United States. law allows a municipality to lower The bill also repeals the requirement the speed limit on certain roads to Commentary: The bill adds Section in Section 521.271(a-1) that DPS and 25 miles per hour, but that authority 708.106 to the Transportation Code the Texas Education Agency enter does not extend to one-lane roads. and only pertains to surcharges into a memorandum of understanding To promote public safety, H.B. 2596 assessed for Driving Without a Valid to allow DPS to access student grants municipalities the authority to License, Driving While License enrollment records in order to comply lower the speed limit on certain one- Invalid, or Failure to Maintain with federal privacy laws. lane roads. Financial Responsibility. The provision will toll the 36-month Finally, the bill renumbers Section Commentary: The 81st Legislature period and defer assessment of the 545.424 of the Transportation granted municipalities the authority surcharges until the date the person is Code. This change did nothing under Section 545.356(b-1) of no longer deployed. substantively, only renumbered the the Transportation Code to lower current law that a person under 18 speed limits on two-lane, undivided Subject: Person Riding in a Boat (17 years of age on a motorcycle highways, that are not part of the or Personal Watercraft Drawn by or moped) may not use a wireless state highway system, to not less than Vehicle communication device while driving, 25 mph. H.B. 2596 adds Subsection H.B. 2981 unless in case of emergency. (b-3) to provide municipalities with Effective: September 1, 2011 a population of 2,000 or less the Commentary: The original version authority to lower speed limits on Under current law, it is permissible of this bill attempted to tie school a one-lane highway used for two- for motor vehicle operators to attendance into driver’s licensing way access which is not an offi cially allow persons of any age to travel laws. It would have added a provision designated or marked highway or as passengers in or on a towed requiring DPS to revoke the license road of the state highway system, to watercraft. This is dangerous and of a student under the age of 18 if the not less than 10 mph. The governing inconsistent with the restrictions student's parent or guardian reported body of the municipality must still imposed on motor vehicle operators to DPS that the student had been determine that the prima facie speed with respect to passengers in the bed absent from school for 10 consecutive limit is unreasonable and unsafe, of a truck or towed trailer. days, or if a school administrator and must publish on the Internet or law enforcement offi cer notifi ed and submit a report to TxDOT that H.B. 2981 amends current law DPS that the student had been absent compares the number of speeding making it an offense to operate on

Page 70 The Recorder August 2011 a highway or street a motor vehicle penalty not to exceed $100. The bill programs have been very successful; that is drawing a boat or personal also provides that a person commits in fact, a number of states include a watercraft in or on which a child a criminal offense if the person fails youth driver safety program in their younger than 18 years of age is to pay any designated penalty on or graduated driver’s license, defensive riding. before the 30th day after the date the driving, or points reduction curricula. authority notifi es the person that the Commentary: This new offense was person is required to pay a penalty In Texas, driving safety course added in Section 545.4145 of the for: (1) exiting or entering an HOV curriculum does not include specifi c Transportation Code and is a “Rules lane at a location not designated for instruction on the unique challenges of the Road” offense. As no penalty exit or entrance or (2) operating a faced by young drivers. S.B. 1330 is prescribed, the offense carries the vehicle in or entering an HOV lane changes this and amends Section general penalty of a $1 to $200 fi ne. with fewer than the required number 45.051(b-1) of the Code of Criminal It is a defense to prosecution if the of occupants. The bill provides Procedure relating to youth driver person operates the motor vehicle that that the notice required by Section safety courses for individuals younger is towing the watercraft on a beach, in 452.0613(d) of the Transportation than 25 years of age receiving a parade, or in case of emergency. Code may be included in a citation deferred disposition for moving issued to the person by a peace offi cer violations. Subject: New Class C Misdemeanor in connection with an offense relating for Failure to Pay Penalty for to improper use of an HOV lane. The Commentary: It is important to Improper Exit, Entrance, or offense is a Class C misdemeanor. emphasize that this does not relate to Operation in an HOV Lane a driving safety course (DSC) ordered S.B. 990 Subject: Special Driving Safety pursuant to Article 45.0511, Code of Effective: September 1, 2011 Course for Defendants Under 25 Criminal Procedure. Rather, it relates Years of Age to what is sometimes referred to as Under current law, regional S.B. 1330 “mandatory DSC as a condition of transportation authorities Effective: September 1, 2011 deferred.” Under Article 45.051(b-1), created under Chapter 452 of the judges are already required to order Transportation Code, e.g., Dallas Recent studies suggest that teenage a defendant younger than 25 charged Area Rapid Transit and the Fort driving accidents account for a with a moving violation to take a Worth T, are responsible for enforcing signifi cant amount of all teenage driving safety course as a condition laws relating to high occupancy deaths. The statistic becomes more of deferred disposition. With this vehicle (HOV) lanes. These laws alarming considering how many new amendment, judges now have include such things as regulation new teenage drivers take to the roads the option, but are not required, to of proper entrance into or exit from each year. In addition to lack of order the defendant to complete HOV structures and observation of experience with driving, teenagers an additional driving safety course vehicle occupancy requirements. face distractions such as talking specifi cally designed for drivers To accomplish enforcement, the and texting on cell phones and younger than 25. (This option will transportation authorities are dealing with young, inexperienced apply only to offenses committed authorized to issue citations to passengers who sometimes behave on or after January 1, 2012.) While drivers who violate traffi c laws in inappropriately. The infl uence of it may take some time before the HOV lanes, which are then fi led drugs and alcohol is another factor Alive@25 curriculum is available in the courts. Consequently, funds in teenage driving accidents. In this statewide, it is likely be welcomed collected from fi nes related to HOV environment, learning the skills of by municipal judges and justices lane violations are not directed to safe, defensive driving becomes of the peace who desire a live and the transportation authorities—who that much more important. Several interactive option when dealing with nevertheless must bear the burden of programs have been developed to youthful, at-risk, drivers. funding enforcement efforts. address the youthful driver and the issues specifi c to that demographic, The Texas Education Agency will S.B. 990 authorizes by resolution, including "Alive@25," which was design the minimum curriculum and an executive committee to provide developed by the National Safety educational materials to be used in that violations regarding improper Council. Such programs target these youth driving safety courses. entrance into, exit from, or vehicle younger drivers ages 15-24 and focus The bill provides that the course occupancy in HOV lanes operated, on improving safety awareness and must be a four-hour live, interactive managed, or maintained by the eliminating districting behaviors course and must require a written authority incur an administrative common to this group. Such commitment by the student to their

Page 71 The Recorder August 201 family and friends that they will not A misdemeanor if the driver caused repeals Section 521.223(d) which engage in dangerous driving habits. a crash resulting in serious bodily authorized DPS to waive the driver The course must include instruction injury to or death of another person. training course requirement and issue in alcohol and drug awareness; Texas a temporary license under certain traffi c laws; statistics on crashes Why another bill? H.B. 2012 only circumstances. The bill provides a and fatalities for drivers under 25; addressed drivers with an invalid short title, Aaron’s Act, for purposes issues commonly involved in youth license, not drivers who have no of citing its provisions. crashes, such as poor decision- license. S.B. 1608 attempts to making, risk-taking, peer pressure, correct this. Section 521.025 of the Commentary: The bill was originally impaired driving, distraction, speed, Transportation Code provides that intended to prevent injuries and failure to wear a safety belt, driving a person commits an offense if they deaths due to vehicle crashes by at night, failure to yield the right-of- are required to hold a driver’s license providing that teens applying for a way, and using a cell phone while and fail to have it in their possession hardship license had adequate driver driving; the effects of poor decision- while driving and fail to display it training. Earlier versions of the bill making on family, friends, school, on demand of a peace offi cer, court would have increased the age and and community; and the importance offi cer, or magistrate. S.B. 1608 driver education requirements for a of taking control of potentially creates a new enhancement under hardship license. dangerous driving situations both as a Section 521.025. If it shown at trial driver and passenger. that at the time of the offense the Interestingly, the original version of driver was also in violation of the H.B. 90 would have prevented DPS Subject: Failure to Carry requirement to maintain fi nancial from issuing any license to a person and Display Driver’s License responsibility and caused a crash younger than 24 years old that had not Without Maintaining Financial resulting in serious bodily injury yet obtained a high school diploma Responsibility to or death of another person, the or GED; those persons would have S.B. 1608 offense is a Class A misdemeanor. only been eligible for restricted Effective: September 1, 2011 This enhancement only applies to licenses allowing travel to and from offenses committed on or after the school, work, school-sponsored More than two years ago, three effective date. Unless there is serious extracurricular activities, community pedestrians were struck by a car and bodily injury or death, drivers who service or volunteer activities, seriously injured after participating drive without their license and religious services, seeking emergency in a half marathon near Dallas. It was without insurance will still receive medical attention, or completing discovered after the accident that the two separate charges, both fi ne- household duties. Earlier versions driver, who had lost control of the only offenses that can be handled also contained a provision making the car, was driving with neither a valid in municipal court. Note that this new mandatory suspension applicable insurance card nor a valid driver's enhancement only applies to offenses only to hardship licenses obtained license. S.B. 1608 addresses the issue under Section 521.025 (License to Be after the effective date. The enrolled of an individual who operates a motor Carried and Exhibited on Demand), version, which omitted this language, vehicle without a driver's license not Section 521.021 (License assumedly makes the new mandatory and in violation of the motor vehicle Required). suspension applicable to all holders of liability insurance requirement and hardship licenses, those yet-to-be and causes, or is at fault, in a motor — Medium Priority — already issued. vehicle accident resulting in death or serious bodily injury to another Subject: Mandatory Suspension of Subject: Exempts Bronze Star person. a Hardship Driver’s License Medal Recipients from Payment of H.B. 90 Parking Meter Fees Commentary: In 2009, the Effective: September 1, 2011 H.B. 559 Legislature enacted H.B. 2012 in Effective: September 1, 2011 response to the above described H.B. 90 amends Section 521.223(f) accident. That bill made the offense of the Transportation Code to require, Bronze Star Medal recipients have of Driving While License Invalid rather than authorize, the Department demonstrated extraordinary service (DWLI) a Class B misdemeanor if of Public Safety (DPS) to suspend a in the performance of exceptionally it is shown at trial that, at the same hardship license if the holder of the meritorious conduct and achievement. time, the driver was also in violation license is convicted of two or more H.B. 559 recognizes the exemplary of the requirement to maintain moving violations committed within service of Bronze Star Medal fi nancial responsibility. It is a Class a 12-month period. The bill also recipients by providing for the Page 72 The Recorder August 2011 issuance of specialty license plates the Parks and Wildlife Code states recommended to the Legislature the and other benefi ts. that a peace offi cer who arrests a adoption of a phase-in approach to person for a violation of the code may the requirement that all operators of Commentary: H.B. 559 includes release the violator with a written recreational boats complete a boater vehicles displaying these Bronze notice to appear before the justice education course. Star Medal license plates in the court, county court, or another court exemption, under certain conditions, having jurisdiction of the offense. H.B. 1395 follows this from the payment of a parking fee However, Article 4.14 of the Code of recommendation by making the collected through a parking meter Criminal Procedure grants concurrent requirement applicable to all boat charged by a governmental authority jurisdiction with justice courts to operators born on or after September other than a branch of the federal municipal courts over all state law 1, 1993. Some exemptions apply. government. In doing so, H.B. 559 criminal cases that occur within the Conversely, H.B. 1395 lowers the amends Section 681.008(b) of the territorial limits of the city and are minimum age required, from 16 to Transportation Code and cleans up punishable by fi ne only. 13 years of age, to operate a personal the two versions passed last Session watercraft or motorboat powered in H.B. 618 and H.B. 2020. However, While under Article 4.14, municipal by a motor with a manufacturer’s in creating the Bronze Star Medal courts may have jurisdiction of rating of more than 15 horsepower, license plate, we now have two Class C Parks and Wildlife Code so long as the driver is supervised versions of Section 504.315(a) of misdemeanors, Chapter 31 of the by another person who is at least 18 the Transportation Code (see the Parks and Wildlife Code (known as years old, who can lawfully operate summary for S.B. 1755). the Water Safety Act) is different. the watercraft and is on board the Section 31.125 provides that a watercraft when underway. Subject: Circling a Motorboat written notice to appear shall order Around a Personal Watercraft or the violator to appear before the The bill also mandates a court to Person Waterskiing justice court (it does not include dismiss a charge of failure to possess H.B. 596 another court having jurisdiction of a document required for boaters under Effective: June 17, 2011 the offense as an option), and Section 18 if the person produces a valid 31.126 specifi cally provides for venue document. Additionally, a person Section 31.099 of the Parks and in Water Safety Act violations to be charged with this offense may request Wildlife Code currently prohibits in the justice court or county court to take a boater education court and the operation of a motorboat in a having jurisdiction where the offense have proceedings deferred for 90 circular course around a person was committed. days. fi shing in another boat or any person swimming. H.B. 596 amends Section Thus, under the specifi c provisions of Commentary: Municipal courts do 31.099 to prohibit the operation of a Chapter 31, it is clear that municipal not have jurisdiction over Chapter 31 motorboat in a circular course around courts do not have jurisdiction over of the Parks and Wildlife Code (the a personal watercraft, water-skier (or Water Safety Act violations. The Water Safety Act; see commentary for person engaged in similar activity), changes made by H.B. 596 affect H.B. 596). Accordingly, this bill will as well as any person swimming. a Water Safety Act violation, and only impact justice courts tasked with The prohibition does not apply to the circular course offense would implementing related procedures for retrieving a downed or fallen water- therefore not be fi led in a municipal the newly created offense. skier. court. Subject: Driver’s License Commentary: There is much Subject: Requirements to Operate Endorsement for Military Veterans confusion over whether municipal Personal Watercraft and Certain H.B. 1514 courts in Texas have jurisdiction over Boats Effective: September 1, 2011 Class C Parks and Wildlife Code H.B. 1395 misdemeanors (punishable by a fi ne Effective: June 17, 2011 Many businesses, organizations, only of not less than $25 or more than and events provide certain benefi ts $500). Some argue that municipal An advisory panel on recreational to veterans. The veteran must often courts do not have jurisdiction of boating safety was recently created to present discharge paperwork as such offenses and that the Parks and study the current state of proof of military service. Some Wildlife Code only contemplates recreation safety on public waters in veterans have pointed out that it prosecution in the justice or county Texas and to make recommendations is cumbersome to constantly carry court. Moreover, Section 12.106 of for improving safety. The panel this paperwork with them. Adding a Page 73 The Recorder August 201 veteran designation to their driver’s road, highway, or street within its authority to prescribe handicap license would allow veterans to more jurisdiction. The property owner’s parking placards, the Transportation easily provide proof of service. association must obtain the consent Code is simply being updated to of the governing body of the political conform to the Physician-PA/APN H.B. 1514 adds Section 521.1235 to subdivision, and is responsible for practice laws. This will ensure the Transportation Code requiring the the expense for both installation and that patients of PAs and APNs in a Department of Public Safety (DPS) to maintenance of the sign. Physician-PA/APN practice model include the designation “VETERAN” will not be delayed in receiving their in an available space either on the Subject: Physician Assistants medically necessary handicap parking face or the reverse side of a driver’s Issuing Disabled Parking Placards placard. license. The veteran must request in All Counties the designation and provide proof H.B. 2080 Commentary: This authority for of his or her military service in, and Effective: June 17, 2011 PAs and APNs to issue such placards, honorable discharge from, the United found in Section 681.003(f) of the States Armed Forces or the Texas Physicians often practice in a team Transportation Code, is still limited National Guard. The bill requires model wherein a physician supervises to the fi rst application for a disabled an application for an original license and delegates to physician assistants parking placard submitted by a to provide space for the applicant to (PAs) and advance practice nurses patient. voluntarily list any military service (APNs). Under the Occupations that may qualify the applicant to Code, licensed PAs and APNs act as Subject: Memorial Sign Program receive a license with a veteran’s the agent of the physician. In many for Victims of Motorcycle Crashes designation and space to include physician practices, the patient may H.B. 2469 proof required by DPS to determine only see their PA or APN, especially Effective: June 17, 2011 the applicant’s eligibility to receive in medically underserved areas. the designation. Like a prescription for medication, a Motorcycle safety awareness for both prescription for a handicap parking riders and drivers is an important tool Subject: Permitting Homeowner’s placard is for some patients, a in preventing motorcycle crashes. Associations to Install Speed medical necessity. Certain citizens have worked to Feedback Signs initiate programs to educate motorists H.B. 1737 Last session, S.B. 1984 amended the regarding the importance of watching Effective: June 17, 2011 Transportation Code to allow PAs and for motorcyclists, including a APNs operating under the delegated program to place crosses on the A speed feedback sign is an electronic prescriptive authority of a licensed roadside where fatal motorcycle device which measures the speed of physician to write handicapped crashes have occurred. H.B. 2469 approaching vehicles. It displays the parking placards in rural counties expands these efforts by creating vehicle’s speed on an electronic panel with a population of 125,000 or less. a memorial sign program at the to create driver awareness regarding In urban counties, Texas law still Texas Department of Transportation the posted speed limit. The signs are bars PAs and APNs from writing (TxDOT) for victims of motorcycle often requested by local organizations handicapped parking “prescriptions.” crashes. in areas where drivers routinely travel S.B. 1984 helped patients in rural faster than the posted speed limit settings, but not those in medically Commentary: According to allows, creating hazardous conditions underserved urban areas. TxDOT, the number of motorcycles for pedestrians and residents. While registered in Texas has more than popular, the signs are also expensive According to the U.S. Department of doubled over the last decade. The to install and maintain. Consequently, Health and Human Services, Bexar, number of motorcyclists killed on it can take years for a municipality to Harris, Dallas, Tarrant, and El Paso Texas roadways has also more than appropriate the funds needed to install counties are all prime examples doubled over the last decade to 434 a sign at a location with an identifi ed of medically underserved urban in 2009. A motorcyclist is 39 times need. counties. H.B. 2080 extends the more likely than a motorist to die in authority to prescribe handicapped a crash, and 66 percent of motorcycle With the addition of Section 430.002 parking placards to PAs and APNs crashes injure or kill the motorcyclist. to the Transportation Code, a acting as the agent of a licensed Last session, the Legislature tasked property owner’s association may physician in Texas regardless TxDOT with launching a public install a speed feedback sign on a of population. By extending the education campaign aimed at

Page 74 The Recorder August 2011 making Texas drivers more aware of on driving conditions, the Legislature third notice to require payment of motorcyclists. appealed to all Texans to increase the amount included in the second their awareness of the dangers of notice plus any third-party collection Building on that campaign, this distracted driving and improve service fees incurred by the authority. new program authorized in Section motorist safety. The Legislature S.B. 469 also authorizes, rather than 201.911 of the Transportation Code, appeared to be especially concerned requires, the citing of the owner for creates the memorial sign program by fi ndings that over 70 percent of nonpayment of a toll. for anyone killed in a highway young drivers between 18 and 24 had crash while operating or riding on a reportedly used text communication Commentary: It has been said, like motorcycle. The Texas Transportation devices while driving, which was it or not, toll roads are the future of Commission has been charged with the likely impetus in the passage of Texas transportation. Section 366.178 establishing and administering a H.B. 242—ultimately vetoed by the of the Transportation Code provides program that allows a person to Governor. that a court of the local jurisdiction request a sign be posted by making in which the unpaid toll was assessed application to TxDOT and submitting Subject: Toll Collection and may assess and collect a fi ne of not a yet-to-be determined fee. The sign Enforcement by Regional Tollway more than $250 for each unpaid toll, designed by TxDOT must be a red Authorities in addition to any court costs. The cross that displays the phrase “In S.B. 469 court shall also collect and remit Memory Of” and up to one line with Effective: September 1, 2011 to the authority the unpaid tolls, the name of the victim(s) and the date administrative fees, and third-party of death. The sign shall be posted for With advancements in electronic collection service fees incurred by one-year and then given to the person tolling, using toll roads has become the authority. S.B. 469 changes the who requested it. Nothing in this more convenient for many Texas amount the authority may impose in bill authorizes TxDOT to remove an residents. As a result, an average administrative fees and provides that existing privately funded memorial invoice contains a signifi cant number the court may only waive payment of that conforms to state law and of transactions; however, bills arrive the unpaid tolls, administrative fees, TxDOT rules. in the mail days or weeks after a toll and third-party collection service fees road transaction, and payments have if the court fi nds the registered owner A related bill, H.B. 1486, expands been known to be missed. Interested of the vehicle is indigent. Section an existing memorial sign program, parties have expressed concern that, 366.178, in effect, makes a court a found in Section 201.909, for although violators should be held collection agency for the authority innocent victims killed in impaired accountable, the current penalty (see the summary for S.B. 959 for driving crashes. These “Please Don’t structure allows fi nes and fees to similar provisions for state highway Drink and Drive” memorial signs accumulate to the point that drivers toll projects). will remain posted for a period of two are unable to afford them, as an years, rather than one. average invoice could cost a driver Subject: Alternative Toll Collection thousands of dollars for missing a and Enforcement by State Highway Subject: April 2011 is Distracted payment. Toll Projects Driving Awareness Month in Texas S.B. 959 H.C.R. 114 S.B. 469 amends the Transportation Effective: June 17, 2011 Effective: April 7, 2011 Code to require a regional tollway authority, as an alternative to The Texas Department of Commentary: In keeping with the requiring payment of a toll at the Transportation (TxDOT) currently national campaign to name April as time a vehicle is driven or towed offers video billing to its customers, Distracted Driving Awareness Month, through a toll assessment facility, to which allows customers to drive the Legislature declared April 2011 use video recordings, photography, on a toll road without paying the to be Distracted Driving Awareness electronic data, transponders, or toll at the time the road is used. A Month in Texas. Following studies other tolling methods to permit the photograph of the vehicle’s license that indicate that at least 16 percent of registered owner of the nonpaying plate is captured and a bill is sent to fatal crashes are a result of distracted vehicle to pay the toll at a later date. the registered owner of the vehicle driving, and that at any given The bill requires the authority to at a later date. Under current law, moment, almost 10 percent of drivers send three notices of nonpayment TxDOT is required to mail violation are using a phone or other device of an assessed toll, rather than only notices to the registered owner of which impairs their ability to focus a single notice, and authorizes the the vehicle at the primary address

Page 75 The Recorder August 201 shown in the Department of Motor Peace Offi cer Driver’s Licenses modifi cations that seek to address Vehicle’s registration records; S.B. 1292 the demand for more transparency, however, many of those addresses Effective: September 1, 2011 accountability, and responsiveness are inaccurate and some are the from TxDOT. Among other addresses of a previous owner of the Under current law, a law enforcement provisions, the bill replaces the Texas vehicle. S.B. 959 amends Chapter offi cer must provide the Department Transportation Commission with a 228 of the Transportation Code to of Public Safety (DPS) with his or single appointed Commissioner of authorize TxDOT to send notices of her home address when applying for Transportation and continues TxDOT nonpayment to an alternate address a driver’s license. This requirement for only four years to ensure that provided by the owner or derived can be problematic if someone needed changes have occurred. through other reliable means. wishing to do harm to the offi cer, the offi cer’s home, or the offi cer’s family, Commentary: This 134-page bill Further, TxDOT charges a separate requests to see an offi cer’s license. makes several changes, very few administrative fee for each unpaid S.B. 1292 allows law enforcement of which are relevant to municipal toll transaction. During one trip on offi cers to provide DPS with an courts. One possible exception a toll facility, a customer may pass alternative address to include on their relates to erection of signs along a through multiple tolling points. driver’s license to further ensure their state highway. Currently, Chapter Even though unpaid toll transactions personal safety. 394 of the Transportation Code, are ultimately grouped together for part of the Highway Beautifi cation collection purposes, TxDOT does Commentary: DPS will still have a Act, requires a person who erects or not have the authority to charge a record of the offi cer’s home address; maintains an off-premises sign on single administrative fee that covers however, an alternative address a rural road to fi rst obtain a permit. multiple events of nonpayment. S.B. within the offi cer’s municipality or Erecting or maintaining the sign 959 expressly authorizes TxDOT county will appear on the driver’s without a permit is a misdemeanor to impose one administrative fee license. This could be problematic to offense. Section 49 of S.B. 1420 that covers multiple events of municipal courts that have pending adds a second requirement that the nonpayment. cases against law enforcement person also obtain a license to erect offi cers and are relying on the address or maintain an off-premises sign on a Commentary: Section 228.054 of the listed on the defendant’s driver’s rural road, and failure to do so is an Transportation Code provides a fi ne- license for service of process or offense punishable by a fi ne of not only misdemeanor offense for failure mailings. These alternate addresses less than $500 or more than $1,000, or refusal to pay a state highway toll; are becoming a trend; a similar with each day constituting a separate S.B. 959 provides an exception to that provision was passed last session in offense. As Chapter 394 only governs offense if the toll collection facility H.B. 2730 allowing state and federal off-premise signs on rural roads utilizes “pay by mail” technology. judges, but not municipal judges, to located in an unincorporated area, it If the registered owner (or lessee in use their courthouse address in lieu is unclear if this offense will ever be the case of a rental car) fails to pay of their home address on their Texas seen in a municipal court. the proper toll when notifi ed by mail, driver’s license. TxDOT can impose an administrative Subject: Seat Belts for School Buses fee in addition to the toll amount. Subject: Reauthorization S.B. 1610 Failure to timely pay the proper toll of the Texas Department of Effective: September 1, 2011 and administrative fee upon notice Transportation (TxDOT) of nonpayment is a separate fi ne- S.B. 1420 In 2007, the Legislature passed H.B. only misdemeanor offense under Effective: September 1, 2011 323 which required the installation Section 228.055. The adjudicating of three-point, lap shoulder seat belts court is tasked with remitting the The Sunset Commission concluded on all new school buses purchased proper toll and administrative fee that TxDOT has worked diligently to on or after September 1, 2010. The in addition to any imposed fi ne and address many of the Commission’s law was to be effective only if the court costs. Courts should be aware previous recommendations, but also Legislature appropriated state funds of TxDOT’s new authority to impose determined more time is needed to to reimburse school districts for a single administrative fee rather than judge the depth and effect of the expenses incurred in complying with a separate $100 fee per nonpayment changes before trust and confi dence the law. In 2009, the Legislature occurrence. in TxDOT is fully restored. This created the Texas School Seat Belt legislation continues the agency and Program, appropriating $10 million Subject: Alternate Address on contains several additional statutory Page 76 The Recorder August 2011 to reimburse school districts for the required to comply with the seat belt can now also include one emblem expense of installing the seat belts. provisions only to the extent that the of which the veteran is entitled from The Texas Education Agency (TEA) Legislature has appropriated money other military decoration license was appointed to administer the to reimburse school districts for plates. reimbursement plan. expenses incurred in complying with the mandate. Commentary: This is the second Section 547.701(f) of the version of Section 504.315(a) of Transportation Code (relating to Subject: Specialty License Plate the Transportation Code (see the additional equipment requirements for Distinguished Service Medal summary for H.B. 559). Thanks to an for school buses and other buses Recipients amendment in H.B. 559, these new used to transport schoolchildren) S.B. 1755 Distinguished Service Medal license was added in 2009 to reassert that Effective: September 1, 2011 plates, under certain conditions this is a state-funded reimbursement (see, Section 681.008(b) of the program. Rather than clarifying S.B. 1755 amends the Transportation Transportation Code), are also exempt intent, this section has been a source Code and requires the Texas from paying certain parking fees of confusion to school districts Department of Motor Vehicles collected through a parking meter and TEA. S.B. 1610 clarifi es and (TxDMV) to issue specialty charged by a governmental authority simplifi es this reimbursement license plates for recipients of other than a branch of the federal provision. S.B. 1610 reverts back to the Distinguished Service Medal. government. the original language passed in 2007 Distinguished Service Medal license and states that school districts are plates, and disabled veteran plates,

Talking Technology: Special What’s on the Horizon appreciation

is expressed to

SSaveave TThehe DDate!ate! Representative Burt R. Solomon

for sponsoring H.R. 1486

Trouble Finding a Bill?

Go to the TMCEC website and download the version 10th Annual Courts and Local of the bill summaries that Government Technology Conference are listed in bill number Embassy Suites Hotel and Conference Center, San Marcos, Texas order. Jan. 31-Feb. 2, 2012 www.tmcec.com Texas Association of Counties

Page 77 The Recorder August 201 PASSENGER RESTRAINT LAWS Back Seat ADULTS (17 and over) $25 - $50 fine to offender CHILDREN (15-16) $25 - $50 fine to passenger & $100 - $200 fine to driver CHILDREN (8-15, and those under 8 but taller than 4’9”) $100 - $200 fine to driver CHILDREN (under age 8, unless taller than 4’9”) not to exceed $25 for first offense, not to exceed $250 for subsequent offense

Driver’s Seat DRIVER (over 15) $25 - $50 fine

Front Seat Passengers ADULTS (17 and over) $25 - $50 to offender CHILDREN (15-16) $25 - $50 fine to passenger & $100 - $200 fine to driver CHILDREN (8-15, and those under 8 but taller than 4’9”) $100 - $200 fine to driver CHILDREN (under age 8, unless taller than 4’9”) not to exceed $25 for first offense, not to exceed $250 for subsequent offense

Passenger Restraint Laws

Child in safety seats A child under 8 years old, unless the child is taller than 4 feet 9 inches (4’9”) must be restrained in a child passenger safety seat in accordance with the manufacturer’s instructions.

Child in safety belts A child age 8 and younger than age 17 must be restrained in a safety belt regardless of position in the vehicle. A child under 8 years old who is not required to be in a safety seat must be in a safety belt.

Adults in safety belts A person must be restrained in a safety belt regardless of position in the vehicle.

Motorcycles A child under age 5 cannot ride as a passenger on a motorcycle, unless seated in a sidecar.

Pick-up trucks A child under age 18 cannot ride in the open bed of a pick-up or flatbed and trailers truck or open flatbed trailer on a public road.

House trailers and A person cannot ride in a house trailer being moved or in a trailer or towed trailers semitrailer being towed.

Towed watercraft A child under age 18 cannot ride in a boat being towed by a vehicle.

Page 78 The Recorder August 2011 Passenger Safety Seat Systems and Safety Belts Effective on offenses committed on or after September 1, 2009

Eligible for Special DSC Eligible for Person Type of Location (emphasizes Eligible Deferred seatbelts & child Responsible Restraint in vehicle Cited for Penalty for DSC Disposition Age safety seat systems)

child child not in maximum $25 for Child under age passenger front and passenger first offense 8, unless over driver yes no yes safety seat back seats safety seat maximum $250 for 4’9” tall system system subsequent offense minimum $100 Child at least maximum $200 front and child not in if in passenger vehicle age 8 and under driver safety belt yes no yes back seats safety belt minimum $1 age 17* maximum $200 if in passenger van front and passenger not minimum $25 passenger safety belt no no yes At least age 15 back seats wearing safety maximum $50 belt front and driver not minimum $25 driver safety belt no yes yes At least age 15 back seats wearing safety maximum $50 belt *Children under age 8 that are taller than 4’9” must wear a safety belt. Definitions x Child passenger safety seat system means an infant or child passenger restraint system that meets the federal standards for crash-tested restraint systems as set by the National Highway Traffic Safety Administration. x Passenger vehicle means a passenger car, light truck, sport utility vehicle, passenger van designed to transport 15 or fewer passengers, including the driver, truck, or truck tractor. (Passenger car means a motor vehicle, other than a motorcycle, used to transport persons and designed to accommodate 10 or fewer passengers, including the operator. Light truck means a truck, including a pickup truck, panel delivery truck, or carryall truck, that has a manufacturer’s carrying capacity of 2,000 pounds or less. Since sport utility vehicle is not specifically defined, look to the definition of passenger vehicle. Truck means a motor vehicle designed, used, or maintained primarily to transport property. Truck tractor means a motor vehicle designed and used primarily to draw another vehicle but not constructed to carry a load other than a part of the weight of the other vehicle and its load. Motor vehicle means a self-propelled vehicle or a vehicle that is propelled by electric power from overhead trolley wires. Section 541.201, T.C.) x Safety belt means a lap belt and any shoulder straps included as original equipment on or added to a vehicle. x Secured in connection with use of a safety belt means using the lap belt and any shoulder straps according to the manufacturer of the vehicle, if the safety belt is original equipment, or the manufacturer of the safety belt, if the safety belt has been added to the vehicle. Section 545.412, T.C., does not apply to: x A person operating a vehicle transporting passengers for hire, excluding third-party transport service providers when transporting clients pursuant to a contract to provide nonemergency Medicaid transportation; or x A person transporting a child in a vehicle in which all seating positions equipped with child passenger safety seat systems or safety belts are occupied. Defenses to prosecution under Section 545.412, T.C.: x The person was operating the vehicle in an emergency; x The person was operating the vehicle for a law enforcement purpose; or x The person provides to the court satisfactory evidence that they possess an appropriate child passenger safety seat for each child required to be secured in a child passenger safety seat. Defenses to prosecution under Section 545.413, T.C.: x The person possesses a written statement from a licensed physician stating that for a medical reason the person should not wear a safety belt; x The person presents to the court, not later than the 10th day after the date of the offense, a statement from a licensed physician stating that for a medical reason the person should not wear a safety belt; x The person is employed by the United States Postal Service and performing a duty for that agency that requires the operator to service postal boxes from a vehicle or that requires frequent entry into and exit from a vehicle; x The person is engaged in the actual delivery of newspapers from a vehicle or is performing newspaper delivery duties that require frequent entry into and exit from a vehicle; x The person is employed by a public or private utility company and is engaged in the reading of meters or performing a similar duty for that company requiring the operator to frequently enter into and exit from a vehicle; x The person is operating a commercial vehicle registered as a farm vehicle under the provisions of Section 502.163, T.C., that does not have a gross weight, registered weight, or gross weight rating of 48,000 pounds or more (Section 502.163, T.C., provides for a fee for commercial motor vehicle used primarily for farm purposes); or x The person is the operator of or a passenger in a vehicle used exclusively to transport solid waste and performing duties that require frequent entry into and exit from the vehicle. Amount Due to the State x Fifty percent of the fines for convictions for not securing a child in a passenger safety seat system (under Section 545.412, T.C.) or a safety belt (under Section 545.413(b), T.C.) must be remitted to the State Comptroller at the end of the city’s fiscal year. x Court costs must be remitted quarterly.

Page 79 The Recorder August 201 COMMON DEFENSES TO PROSECUTION

Offense Defense Fee Failure to Have License in Defendant must produce in court a Optional $10 fee. Possession While Operating a Motor driver’s license issued to that person Vehicle (Failure to Display Driver’s appropriate for the type of vehicle License) – Section 521.025, T.C. operated and valid at the time of the arrest. Section 521.025(d), T.C. Failure to Have Commercial License Defendant must produce in court a None. in Possession While Operating a commercial driver’s license issued to Commercial Motor Vehicle – Section that person appropriate for the class of 522.011, T.C. vehicle being driven and valid at the time of the offense. Failure to Secure Child in Child Defendant must provide the court with None. Passenger Safety Seat System – satisfactory evidence that defendant Section 545.412, T.C. possesses an appropriate child passenger safety seat system for each child required to be secured in a child passenger safety seat system. Section 545.4121, T.C. Use of Wireless Communication Affi rmative defense if required sign was None. Device in a School Crossing Zone – not posted at the entrance to the school Section 545.425, T.C. crossing zone at the time offense was committed, unless city has ordinance banning cell phone use throughout the municipality and has the appropriate signs posted. Failure to Display Valid Motor Defendant must show that an inspection None. Vehicle Inspection Certifi cate – certifi cate for the vehicle was in effect at Section 548.602, T.C. the time of the arrest. Failure to Maintain Financial Two defenses available: None. Responsibility – Section 601.191, • Defendant must provide the court T.C. satisfactory evidence of valid proof of fi nancial responsibility under Section 601.053(a), T.C., that was valid and in effect at the time of the arrest. Section 601.193, T.C.

OR

• Defendant possessed the vehicle for the sole purpose or maintenance or repair and did not own the vehicle. Section 601.194, T.C.

Page 80 The Recorder August 2011 THE BIG THREE – REGISTRATION, INSPECTION, AND FINANCIAL RESPONSIBILITY REQUIREMENTS Effective September 1 - December 31, 2011 nition fi nancial responsibility nancial fi nancial responsibility for golf carts fi nition of motor vehicle in Transportation Transportation nition of motor vehicle in ned in §601.002(5)). fi fi operated only as authorized by Transportation Transportation operated only as authorized by Code §551.403. Not required. designed for use on a highway. vehicle Not required if recreational off-highway is not designed for use on a highway (see de Code §601.002(5)). Required. Transportation Code §601.051—Cannot operate Transportation a motor vehicle unless is established for that vehicle (motor de use on a highway. use on a highway. Not required if all-terrain vehicle is not designed for use on a highway (see de of motor vehicle in Transportation Code Transportation of motor vehicle in §601.002(5)). Required. Code §541.201(11). Transportation Code §601.002(5) or Transportation §541.201(11). No Required.Required.Not required.Only if required to be registered. (Not at this time) Not required.Not required. Required. Required. Not required—not a motor vehicle. Not required—not designed for use on highway. vehicle is Required if recreational off-highway Not required; must instead pass initial safety inspection at time of registration. Transportation Code §548.051—Those Transportation motor vehicles registered in this state must be inspected (list of vehicles not required to Code Transportation be inspected found at §548.052). Not required. Required if all-terrain vehicle is designed for Not required; must instead pass initial safety inspection at time of registration. Not required.Not required.Not required; must display a slow-moving- Code Transportation vehicle emblem under §547.703. Not required—not a motor vehicle under Not required—not a motor vehicle under Transportation Code §502.007—Registration Transportation required (treat as a motorcycle). Code §502.002 and §502.405— Transportation Motor vehicle, registration required. Code §502.0074—Not required Transportation to be registered. Texas Code §551.302—The Transportation may adopt rules Vehicles Department of Motor relating to registration. (Has not done so) Code contains no Transportation Chapter 502, provisions for registration. Code §502.006(a)—Cannot be Transportation registered for operation on a public highway or municipality may state, county, EXCEPT vehicle for register recreational off-highway operation on any public beach or highway to maintain public safety and welfare. Transportation Code §504.501—Special Transportation registration procedures for street rods. Registration Code §502.002—Motor Transportation vehicles must be registered within 30 days Texas after purchasing a vehicle or becoming resident. Inspection Financial Responsibility Transportation Code §502.006(a)—Cannot be Transportation registered for operation on a public highway or municipality may state, county, EXCEPT register all-terrain vehicle for operation on any public beach or highway to maintain safety and welfare. Transportation Code §504.501—Special Transportation registration procedures for custom vehicles. Code §502.0075—Not required Transportation to be registered. Code §502.2862—Not required Transportation to be registered. Code §551.402—Cannot be Transportation registered for operation on a public highway. “Moped” “Motorcycle” “Motorized Mobility Device” “Neighborhood Electric Vehicle” “Pocket Bike or Minimotorbike” Off- “Recreational Highway Vehicles” “Street Rod” “Street General Rule “All-Terrain “All-Terrain Vehicles” “Custom Vehicle” “Electric Bicycles” “Electric Personal Assistive Mobility Device” “Golf Carts”

Page 81 The Recorder August 201 Definitions: all sections refer to the Transportation Code All-terrain vehicle (§502.001/663.001) means a motor vehicle that is (A) equipped with a saddle for the use of: (i) the rider, and (ii) a passenger, if the motor vehicle is designed by the manufacturer to transport a passenger; (B) designed to propel itself with three or more tires in contact with the ground; (C) designed by the manufacturer for off-highway use by the operator only; and (D) not designed by the manufacturer for farming or lawn care. Bicycle (§541.201) means a device that a person may ride and that is propelled by human power and has two tandem wheels at least one of which is more than 14 inches in diameter. Bus (§541.201) means a motor vehicle used to transport persons and designed to accommodate more than 10 passengers, including the operator; or a motor vehicle, other than a taxicab, designed and used to transport persons for compensation. Custom vehicle (§504.501) means a vehicle: that is at least 25 years old and of a model year after 1948 or manufactured to resemble a vehicle that is at least 25 years old and of a model year after 1948; and that has been altered from the manufacturer’s original design or has a body constructed from materials not original to the vehicle. Electric personal assistive mobility device (§551.201) means a two non-tandem wheeled device designed for transporting one person that is: (1) self-balancing; and (2) propelled by an electric propulsion system with an average power of 750 watts or one horsepower. Electric Bicycle (§541.201) means a bicycle that: (A) is designed to be propelled by an electric motor, exclusively or in combination with the application of human power, (B) cannot attain a speed of more than 20 miles per hour without the application of human power, and (C) does not exceed a weight of 100 pounds. Golf cart (§502.001) means a motor vehicle designed by the manufacturer primarily for transporting persons on a golf course. Light truck (§502.001) means a commercial motor vehicle that has a manufacturer’s rated carrying capacity of one ton or less. Light truck (§541.201) means a truck, including a pick-up truck, panel delivery truck, or carryall truck, that has a manufacturer’s rated carrying capacity of 2,000 pounds or less. Moped (§541.201) means a motor-driven cycle that cannot attain a speed in one mile of more than 30 miles per hour and the engine of which: (A) cannot produce more than two-brake horsepower; and (B) if an internal combustion engine, has a piston displacement of 50 cubic centimeters or less and connects to a power drive system that does not require the operator to shift gears. Motorcycle (§502.001) means a motor vehicle designed to propel itself with not more than three wheels in contact with the ground. The term does not include a tractor. Motorcycle (§521.001) includes an enclosed three-wheeled passenger vehicle that (A) is designed to operate with three wheels in contact with the ground; (B) has a minimum unladen weight of 900 pounds; (C) has a single, completely enclosed, occupant compartment; (D) at a minimum, is equipped with a steering wheel used to maneuver the vehicle; a propulsion unit; and seats, a seat belt for each vehicle occupant, a windshield and one or more windshield wipers, and a vehicle structure, that are certified by the manufacturer to meet federal requirements; and (E) is produced by its manufacturer in a minimum quantity of 300 in any calendar year. Motorcycle (§541.201) means a motor vehicle, other than a tractor, that is equipped with a rider’s saddle and designed to have when propelled not more than three wheels on the ground. Motorcycle (§661.001) means a motor vehicle designed to propel itself with not more than three wheels in contact with the ground, and having a saddle for the use of the rider. The term does not include a tractor or a three-wheeled vehicle equipped with a cab or occupant compartment, seat, and seat belt and designed to contain the operator in the cab or occupant compartment. Motor-driven cycle (§541.201) means a motorcycle equipped with a motor that has an engine piston displacement of 250 cubic centimeters or less. The term does not include an electric bicycle. Motor assisted scooter (§551.301/551.351) means a self-propelled device with: at least two wheels in contact with the ground during operation; a braking system capable of stopping the device under typical operating conditions; a gas or electric motor not exceeding 40 cubic centimeters; a deck designed to allow a person to stand or sit while operating the device; and the ability to be propelled by human power alone. The term does not include a pocket bike or minimotorbike. Motor vehicle (§502.001) means a vehicle that is self-propelled. Motor vehicle (§541.201) means a self-propelled vehicle or a vehicle that is propelled by electric power from overhead trolley wires. The term does not include an electric bicycle or an electric personal assistive mobility device. Motor vehicle (§601.002) means a self-propelled vehicle designed for use on a highway, a trailer or semitrailer designed for use with a self-propelled vehicle, or a vehicle propelled by electric power from overhead wires and not operated on rails. The term does not include: a traction engine, a road roller or grader, a tractor crane, a power shovel, a well driller, an implement of husbandry, or an electric personal assistive mobility device. Motorized mobility device (§542.009) means a device designed for transportation of persons with physical disabilities that: (1) has three or more wheels; (2) is propelled by a battery- powered motor; (3) has not more than one forward gear; and (4) is not capable of speeds exceeding eight miles per hour. For the purposes of the Rules of the Road, a person operating a nonmotorized wheelchair or motorized mobility device is considered to be a pedestrian. Neighborhood electric vehicle (§551.301) means a vehicle that can attain a maximum speed of 35 miles per hour on a paved level surface and otherwise complies with Federal Motor Vehicle Safety Standard 500 (49 C.FR. § 571.500). Passenger car (§502.001) means a motor vehicle, other than a motorcycle, golf cart, light truck, or bus, designed or used primarily for the transportation of persons. Passenger car (§541.201) means a motor vehicle, other than a motorcycle, used to transport persons and designed to accommodate 10 or fewer passengers, including the operator. Passenger vehicle (§545.412) means a passenger car, light truck, sport utility vehicle, passenger van designed to transport 15 or fewer passengers, including the driver, truck, or truck tractor. Pocket bike or minimotorbike (§551.301) means a self-propelled vehicle that is equipped with an electric motor or internal combustion engine having a piston displacement of less than 50 cubic centimeters, is designed to propel itself with not more than two wheels in contact with the ground, has a seat or saddle for the use of the operator, is not designed for use on a highway and is ineligible for a certificate of title under Chapter 501. The term does not include a moped or motorcycle; an electric bicycle or motor-driven cycle; a motorized mobility device; an electric personal assistive mobility device; or a neighborhood electric vehicle. Recreational off-highway vehicle (§502.001) means a motor vehicle that is (A) equipped with a non-straddle seat for the use of (i) the rider, and (ii) a passenger, if the vehicle is designed by the manufacturer to transport a passenger; (B) designed to propel itself with four or more tires in contact with the ground; (C) designed by the manufacturer for off-highway use by the operator only; and (D) not designed by the manufacturer primarily for farming or lawn care. Road tractor (§502.001) means a vehicle designed for the purpose of mowing the right-of-way of a public highway or a motor vehicle designed or used for drawing another vehicle or a load and not constructed to carry an independent load or a part of the weight of the vehicle and load to be drawn. Street rod (§504.501) means a vehicle: that was manufactured before 1949 or after 1948 to resemble a vehicle manufactured before 1949; and that has been altered from the manufacturer’s original design or has a body constructed from materials not original to the vehicle. Truck (§541.201) means a motor vehicle designed, used, or maintained primarily to transport property. Truck tractor (§502.001/541.201) means a motor vehicle designed and used primarily for drawing another vehicle and not constructed to carry a load other than a part of the weight of the other vehicle and its load. Vehicle (§502.001) means a device in or by which a person or property is or may be transported or drawn on a public highway, other than a device used exclusively on stationary rails or tracks. Vehicle (§541.201) means a device that can be used to transport or draw persons or property on a highway. The term does not include: (A) a device exclusively used on stationary rails or tracks; or (B) manufactured housing as that term is defined by Chapter 1201, Occupations Code. 08/11

Page 82 The Recorder August 2011 THE BIG THREE – REGISTRATION, INSPECTION, AND FINANCIAL RESPONSIBILITY REQUIREMENTS Effective January 1, 2012 nition of motor fi nancial responsibility nancial fi nancial responsibility for golf carts operated fi nition of motor vehicle in Transportation Transportation nition of motor vehicle in ned in §601.002(5)). fi fi only as authorized by Transportation Code Transportation only as authorized by §551.403. Not required. be a motor vehicle, but the vehicle on which it is mounted would be considered a motor vehicle. designed for use on a highway. vehicle Not required if recreational off-highway is not designed for use on a highway (see de Required. Code §601.002(5)). Transportation Code §601.051—Cannot operate Transportation a motor vehicle unless is established for that vehicle (motor de on a highway. Not required if all-terrain vehicle is not designed for use on a highway (see de Code §601.002(5)). Transportation vehicle in Required. Code §541.201(11). Transportation Code §601.002(5) or Transportation §541.201(11). No Required.Required.Not required.Only if required to be registered. (Not at this time) Not required.Not required. Required. Not required. Required. Not required—not a motor vehicle. Not required—not designed for use on highway. Not required; must instead pass initial safety inspection at time of registration. Unclear—sweeper implement itself might not vehicle is Required if recreational off-highway Transportation Code §548.051—Those Transportation motor vehicles registered in this state must be inspected (list of vehicles not required to Code Transportation be inspected found at §548.052). Not required.Not required; must instead pass initial safety inspection at time of registration. Not required.Not required. Required if all-terrain vehicle is designed for use Not required; must display a slow-moving- Code Transportation vehicle emblem under §547.703. Not required—not a motor vehicle under Not required—not a motor vehicle under Transportation Code §502.007—Registration Transportation required (treat as a motorcycle). Code §502.002 and §502.405— Transportation Motor vehicle, registration required. Code §502.143— Cannot be Transportation registered for operation on a public highway. Texas Code §551.302—The Transportation may adopt rules Vehicles Department of Motor relating to registration. (Has not done so) Code contains no Transportation Chapter 502, provisions for registration. Code §502.143— Cannot be Transportation registered for operation on a public highway. Code §502.140(a)—Cannot be Transportation registered for operation on a public highway or municipality may state, county, EXCEPT vehicle for register recreational off-highway operation on any public beach or highway to maintain public safety and welfare. Transportation Code §504.501—Special Transportation registration procedures for street rods. Transportation Code §504.501—Special Transportation registration procedures for custom vehicles. Code §502.143—Cannot be Transportation registered for operation on a public highway. Code §502.143— Cannot be Transportation registered for operation on a public highway. Code §551.402—Cannot be Transportation registered for operation on a public highway. Registration Code §502.040—Motor vehicles, Transportation trailers, and semitrailers must be registered within 30 days after purchasing a vehicle or resident. Texas becoming a Inspection Financial Responsibility Transportation Code §502.140(a)—Cannot be Transportation registered for operation on a public highway or municipality may state, county, EXCEPT register all-terrain vehicle for operation on any public beach or highway to maintain safety and welfare. “Moped” “Motorcycle” “Motorized Mobility Device” “Neighborhood Electric Vehicle” “Pocket Bike or Minimotorbike” Sweepers” “Power Off- “Recreational Highway Vehicles” “Street Rod” “Street “Custom Vehicle” “Electric Bicycles” “Electric Personal Assistive Mobility Device” “Golf Carts” General Rule “All-Terrain “All-Terrain Vehicles”

Page 83 The Recorder August 201 Definitions: all sections refer to the Transportation Code All-terrain vehicle (§502.001/663.001) means a motor vehicle that is (A) equipped with a saddle for the use of: (i) the rider, and (ii) a passenger, if the motor vehicle is designed by the manufacturer to transport a passenger; (B) designed to propel itself with three or more tires in contact with the ground; (C) designed by the manufacturer for off-highway use by the operator only; and (D) not designed by the manufacturer for farming or lawn care. Bicycle (§541.201) means a device that a person may ride and that is propelled by human power and has two tandem wheels at least one of which is more than 14 inches in diameter. Bus (§541.201) means a motor vehicle used to transport persons and designed to accommodate more than 10 passengers, including the operator; or a motor vehicle, other than a taxicab, designed and used to transport persons for compensation. Custom vehicle (§504.501) means a vehicle: that is at least 25 years old and of a model year after 1948 or manufactured to resemble a vehicle that is at least 25 years old and of a model year after 1948; and that has been altered from the manufacturer’s original design or has a body constructed from materials not original to the vehicle. Electric personal assistive mobility device (§551.201) means a two non-tandem wheeled device designed for transporting one person that is: (1) self-balancing; and (2) propelled by an electric propulsion system with an average power of 750 watts or one horsepower. Electric Bicycle (§541.201) means a bicycle that: (A) is designed to be propelled by an electric motor, exclusively or in combination with the application of human power, (B) cannot attain a speed of more than 20 miles per hour without the application of human power, and (C) does not exceed a weight of 100 pounds. Golf cart (§502.001) means a motor vehicle designed by the manufacturer primarily for use on a golf course. Light truck (§541.201) means a truck, including a pick-up truck, panel delivery truck, or carryall truck, that has a manufacturer’s rated carrying capacity of 2,000 pounds or less. Moped (§541.201) means a motor-driven cycle that cannot attain a speed in one mile of more than 30 miles per hour and the engine of which: (A) cannot produce more than two-brake horsepower; and (B) if an internal combustion engine, has a piston displacement of 50 cubic centimeters or less and connects to a power drive system that does not require the operator to shift gears. Motorcycle (§521.001) includes an enclosed three-wheeled passenger vehicle that (A) is designed to operate with three wheels in contact with the ground; (B) has a minimum unladen weight of 900 pounds; (C) has a single, completely enclosed, occupant compartment; (D) at a minimum, is equipped with a steering wheel used to maneuver the vehicle; a propulsion unit; and seats, a seat belt for each vehicle occupant, a windshield and one or more windshield wipers, and a vehicle structure, that are certified by the manufacturer to meet federal requirements; and (E) is produced by its manufacturer in a minimum quantity of 300 in any calendar year. Motorcycle (§541.201) means a motor vehicle, other than a tractor, that is equipped with a rider’s saddle and designed to have when propelled not more than three wheels on the ground. Motorcycle (§661.001) means a motor vehicle designed to propel itself with not more than three wheels in contact with the ground, and having a saddle for the use of the rider. The term does not include a tractor or a three-wheeled vehicle equipped with a cab or occupant compartment, seat, and seat belt and designed to contain the operator in the cab or occupant compartment. Motor-driven cycle (§541.201) means a motorcycle equipped with a motor that has an engine piston displacement of 250 cubic centimeters or less. The term does not include an electric bicycle. Motor assisted scooter (§551.301/551.351) means a self-propelled device with: at least two wheels in contact with the ground during operation; a braking system capable of stopping the device under typical operating conditions; a gas or electric motor not exceeding 40 cubic centimeters; a deck designed to allow a person to stand or sit while operating the device; and the ability to be propelled by human power alone. The term does not include a pocket bike or minimotorbike. Motor vehicle (§502.001) means a vehicle that is self-propelled. Motor vehicle (§541.201) means a self-propelled vehicle or a vehicle that is propelled by electric power from overhead trolley wires. The term does not include an electric bicycle or an electric personal assistive mobility device. Motor vehicle (§601.002) means a self-propelled vehicle designed for use on a highway, a trailer or semitrailer designed for use with a self-propelled vehicle, or a vehicle propelled by electric power from overhead wires and not operated on rails. The term does not include: a traction engine, a road roller or grader, a tractor crane, a power shovel, a well driller, an implement of husbandry, or an electric personal assistive mobility device. Motorized mobility device (§542.009) means a device designed for transportation of persons with physical disabilities that: (1) has three or more wheels; (2) is propelled by a battery- powered motor; (3) has not more than one forward gear; and (4) is not capable of speeds exceeding eight miles per hour. For the purposes of the Rules of the Road, a person operating a nonmotorized wheelchair or motorized mobility device is considered to be a pedestrian. Neighborhood electric vehicle (§551.301) means a vehicle that can attain a maximum speed of 35 miles per hour on a paved level surface and otherwise complies with Federal Motor Vehicle Safety Standard 500 (49 C.FR. §571.500). Passenger car (§541.201) means a motor vehicle, other than a motorcycle, used to transport persons and designed to accommodate 10 or fewer passengers, including the operator. Passenger vehicle (§545.412) means a passenger car, light truck, sport utility vehicle, passenger van designed to transport 15 or fewer passengers, including the driver, truck, or truck tractor. Pocket bike or minimotorbike (§551.301) means a self-propelled vehicle that is equipped with an electric motor or internal combustion engine having a piston displacement of less than 50 cubic centimeters, is designed to propel itself with not more than two wheels in contact with the ground, has a seat or saddle for the use of the operator, is not designed for use on a highway and is ineligible for a certificate of title under Chapter 501. The term does not include a moped or motorcycle; an electric bicycle or motor-driven cycle; a motorized mobility device; an electric personal assistive mobility device; or a neighborhood electric vehicle. Power Sweeper (§502.001) means an implement, with or without motive power, designed for the removal by a broom, vacuum, or regenerative air system of debris, dirt, gravel, litter, or sand from asphaltic concrete or cement concrete surfaces, including surfaces of parking lots, roads, streets, highways, and warehouse floors. The term includes a vehicle on which the implement is permanently mounted if the vehicle is used only as a power sweeper. Recreational off-highway vehicle (§502.001) means a motor vehicle that is (A) equipped with a non-straddle seat for the use of (i) the rider, and (ii) a passenger, if the vehicle is designed by the manufacturer to transport a passenger; (B) designed to propel itself with four or more tires in contact with the ground; (C) designed by the manufacturer for off-highway use by the operator only; and (D) not designed by the manufacturer primarily for farming or lawn care. Road tractor (§502.001) means a vehicle designed for the purpose of mowing the right-of-way of a public highway or a motor vehicle designed or used for drawing another vehicle or a load and not constructed to carry an independent load or a part of the weight of the vehicle and load to be drawn. Street rod (§504.501) means a vehicle: that was manufactured before 1949 or after 1948 to resemble a vehicle manufactured before 1949; and that has been altered from the manufacturer’s original design or has a body constructed from materials not original to the vehicle. Truck (§541.201) means a motor vehicle designed, used, or maintained primarily to transport property. Truck tractor (§502.001/541.201) means a motor vehicle designed and used primarily for drawing another vehicle and not constructed to carry a load other than a part of the weight of the other vehicle and its load. Utility Vehicle (§551.401) means a motor vehicle that is not a golf cart or lawn mower and is (A) equipped with side-by-side seating for the use of the operator and a passenger; (B) designed to propel itself with at least four tires in contact with the ground; (C) designed by the manufacturer for off-highway use only; and (D) designed by the manufacturer primarily for utility work and not for recreational purposes. Vehicle (§502.001) means a device in or by which a person or property is or may be transported or drawn on a public highway, other than a device used exclusively on stationary rails or tracks. Vehicle (§541.201) means a device that can be used to transport or draw persons or property on a highway. The term does not include: (A) a device exclusively used on stationary rails or tracks; or (B) manufactured housing as that term is defined by Chapter 1201, Occupations Code.

Page 84 The Recorder August 2011 “PROBATION-RELATED” DISMISSALS Effective September 1, 2011

Court Process Defendant Requirements Fee/Costs Dismissal Deferred • Defendant required to comply with requirements • Court costs required to be Court, on determining that Disposition – imposed during deferral period. collected.* defendant complied with Art. 45.051, • Present evidence of compliance. • Court may impose special the requirements imposed C.C.P. expense fee (not to exceed by the court, shall dismiss the amount of fi ne that complaint and shall clearly could be imposed). Special note in the docket that expense fee may be collected complaint is dismissed at anytime before the date and there is not a fi nal the probation ends. Court conviction. Art. 45.051(c), may elect not to collect for C.C.P. good cause shown. Art. 45.051(c), C.C.P. Driving Safety • Proof of completion of driving safety course or • Court costs required to be Upon presentation of Course/ motorcycle operator training course. collected.* evidence of completion Motorcycle • Certifi ed copy of driving record from the DPS if • Fee up to $10 optional under of course, certifi ed copy Operator licensed in Texas (defendant who is active military mandatory provision – Art. of driving record showing Training Course will probably not have a Texas driving record). 45.0511(f)(1), C.C.P. defendant was eligible, – Art. 45.0511, • Affi davit stating that defendant was not taking • Fee, up to the maximum and affi davit, court shall C.C.P. a driving safety course or motorcycle operator amount of fi ne for that remove judgment (earlier training course, as applicable, on the date the offense, allowed under the judgment on defendant’s request to take the course was made and had discretionary provisions – plea, on which court not completed a course that is not shown on the Art. 45.0511(f)(2), C.C.P. deferred imposition for 90 defendant’s driving record within the 12 months days) and dismiss charge. preceding the date of the offense. Art. 45.0511(l), C.C.P. • Texas driver’s license or permit (unless defendant is active military or is active military spouse or Court may dismiss only dependent child). one charge for each • Proof of fi nancial responsibility. completion of a course. Art. 45.0511(m), C.C.P. Teen Court – • Complete teen court program. • Court costs required to be Upon presentation of Art. 45.052, • Show court evidence of completion of teen court collected.* evidence that defendant C.C.P. program. • Fee up to $10 optional for completed teen court administering teen court. Art. program, court shall 45.052(e), C.C.P. dismiss charge. Article • $10 optional fee for teen 45.052(c), C.C.P. court performing its duties, paid to teen court program. Teen court program must account to court for disbursal of fee. Art. 45.052(g), C.C.P. • Court may waive fees and court costs imposed by another statute. Art. 45.052(h), C.C.P. • Courts in TX/LA border region may charge $20 fee in place of the $10 fee. Compliance • Defendant successfully complies with conditions Court costs required to be Upon compliance or with School imposed by court under Article 45.054, C.C.P. collected.* presentation, court shall Attendance – • Defendant presents proof of obtaining high school dismiss complaint alleging related order. diploma or equivalency certifi cate. However, court may waive Failure to Attend School Art. 45.054 (i), or reduce a fee or cost if it (Sec. 25.094, E.C.) C.C.P causes fi nancial hardship. Art. 45.054(i), C.C.P.

Page 85 The Recorder August 201 “PROBATION-RELATED” DISMISSALS continued Effective September 1, 2011

Court Process Defendant Requirements Fee/Costs Dismissal Commitment • Court fi nds offense resulted from or was related to Court costs required to be Upon presentation of of Chemically defendant’s chemical dependency. collected.* satisfactory evidence Dependent • Application for court-ordered treatment of that defendant was Person – Art. defendant fi led in accordance with Ch. 462, committed for and 45.053, C.C.P. H.S.C. completed court- ordered treatment, court shall dismiss charge and shall clearly note in the docket that complaint is dismissed and there is not a fi nal conviction. Art. 45.053(b). Attendance • Defendant required to complete tobacco Court costs required to be Upon presentation of at a Tobacco awareness program or tobacco related community collected.* evidence of completion Awareness service not later than 90th day after conviction. of tobacco awareness Program – Sec. (Court required to suspend execution of sentence program or community 161.253, H.S.C. for 90 days—Sec. 161.253(a), H.S.C.) service, court shall • Defendant not previously convicted of offense dismiss charge. Sec. under Sec. 161.252. 161.252(f)(2), H.S.C. * Section 133.101, L.G.C.: For the purposes of determining criminal court costs and fees, a defendant is considered to be convicted in a case if: • A judgment, a sentence, or both a judgment and a sentence are imposed on the person; • The person receives community supervision, deferred adjudication, or deferred disposition; • The court defers fi nal disposition of the case or imposition of the judgment and sentence.

Texas Legislature Online

This is the home page for Texas Legislature Online [www.capitol.state.tx.us]. This site has an enormous amount of information about the Texas Legislature, the legislative process, and pending and passed legislation.

Page 86 The Recorder August 2011 Compliance Dismissals Effective September 1, 2011

Offense Statute Length of Time to Other Required Amount of Fee Comply Conditions Expired Motor Vehicle Section 502.407(b), 20 working days after Court may dismiss. Not to exceed $20. Registration Transportation Code the date of the offense or Fee Optional. Defendant must show proof of before the defendant’s payment of late registration fee fi rst court appearance, to county assessor-collector. whichever is later. Operate Motor Vehicle Section 502.473(a) & (d), Statute does not specify. Court may dismiss. Not to exceed $10. Without Registration Transportation Code Fee Required. Defendant must show that Insignia Properly motor vehicle was issued a Displayed registration insignia that was attached to the motor vehicle establishing that the vehicle was registered for the period during which the offense was committed. Attaching or Displaying Section 502.475(a)(3) & Before defendant’s fi rst Court may dismiss. Not to exceed $10. on a Motor Vehicle a (c), Transportation Code court appearance. Fee Required. None. Registration Insignia that is Assigned for a Period other than the Period in Effect Operate Motor Vehicle Section 504.943(a) & (d), Before the defendant’s Court may dismiss. Not to exceed $10. Without Two License Transportation Code fi rst court appearance. Fee Required. None. Plates Attaching or Displaying Section 504.945(a) Before the defendant’s Court may dismiss. Not to exceed $10. on a Motor Vehicle a (3), (5), (6), (7) & (d), fi rst court appearance. Fee Required. None. License Plate that is Transportation Code Obscured or Assigned for a Period Other than the Period in Effect Expired Driver’s License Section 521.026(a), 20 working days after Court may dismiss. Not to exceed $20. Transportation Code the date of the offense or None. Fee Optional. before the defendant’s fi rst court appearance, whichever is later. Fail to Report Change of Section 521.054(d), 20 working days after the Court may dismiss. Not to exceed $20. Address or Name Transportation Code date of the offense. None. Fee Required. Court may waive in the interest of justice.

Violate Driver’s Section 521.221(d), Before the defendant’s Court may dismiss. Not to exceed $10. License Restriction or Transportation Code fi rst court appearance. • Driver’s license endorsement Fee Required. Endorsement was imposed because of a physical condition that was surgically or otherwise medically corrected before the date of the offense, or in error and that is established by the defendant; and • DPS removes the restriction or endorsement before the defendant’s fi rst court appearance.

Page 87 The Recorder August 201 Compliance Dismissals continued Effective September 1, 2011

Offense Statute Length of Time to Other Required Amount of Fee Comply Conditions Operate Vehicle with Section 547.004(c), Before the defendant’s Court may dismiss. Not to exceed $10. Fee Defective Required Transportation Code fi rst court appearance. Does not apply if the offense Required. Equipment (or in Unsafe involves a commercial Condition)* motor vehicle.

Expired Inspection (less Section 548.605(b), 20 working days after Court shall dismiss. Not to exceed $20. Fee than 60 days) Transportation Code the date of the offense or Required. before the defendant’s fi rst court appearance, whichever is later. Expired Inspection (more Section 548.605(c), 20 working days after Court may dismiss. No Fee Authorized. than 60 days) Transportation Code the date of the offense or before the defendant’s fi rst court appearance, whichever is later. Expired Disabled Parking Section 681.013(b), 20 working days after Court shall dismiss. Not to exceed $20. Fee Placard (less than 60 Transportation Code the date of the offense or Required. days) before the defendant’s fi rst court appearance, whichever is later. Expired Disabled Parking Section 681.013(c), 20 working days after Court may dismiss. No Fee Authorized. Placard (more than 60 Transportation Code the date of the offense or days) before the defendant’s fi rst court appearance, whichever is later. Expired Certifi cate of Section 31.127(f), Parks 10 working days after the Court may dismiss. Not to exceed $10. Fee Number and Wildlife Code date of the offense. • Certifi cate of number cannot Required. be expired more than 60 days.

Other Dismissals Effective September 1, 2011

Motions Hearing Fee Dismissal Defense Pre-trial (prosecutor notifi ed and None Depends on information presented gets copies) or trial. (Example: at hearing. Judge may grant motion motion to quash complaint - and dismiss. quash means to set aside and dismiss) State (Prosecutor - City Attorney Pre-trial or trial. Depending on None Depends on information presented or Deputy City Attorney) motion, defense gets copy. (If at hearing. Article 32.02, C.C.P. motion to dismiss, court should provides that the attorney notify defendant and attorney, if representing the State may, by any, if charge dismissed.) permission of the court, dismiss a criminal action at any time, upon fi ling a written statement with the papers in the case setting out his/ her reasons for such dismissal, which shall be incorporated in the judgment of dismissal. No case shall be dismissed without the consent of the presiding judge.

Page 88 The Recorder August 2011 2011 - 2012 TMCEC Academic Schedule At-A-Glance

Seminar Date(s) City Hotel Information

September 12-15, 2011 Omni Southpark New Clerks Seminar Austin (M-T-W-Th) 4140 Governor's Row, Austin, TX 10/19/2011 TMCEC New Judges and Clerks Orientation Austin (W) 1609 Shoal Creek Blvd. Ste. 302, Austin, TX October 24-26, 2011 Holiday Inn Regional Judges Seminar Tyler (M-T-W) 5701 South Broadway, Tyler, TX October 26-28, 2011 Holiday Inn Regional Clerks Seminar Tyler (W-Th-F) 5701 South Broadway, Tyler, TX November 7-9, 2011 Omni Southpark Regional Judges and Clerks Seminar Austin (M-T-W) 4140 Governor's Row, Austin, TX December 5-9, 2011 Omni Southpark New Judges Seminar Austin (M-T-W-Th-F) 4140 Governor's Row, Austin, TX December 5-8, 2011 Omni Southpark New Clerks Seminar Austin (M-T-W-TH) 4140 Governor's Row, Austin, TX January 9-11, 2012 Omni San Antonio at the Colonnade Regional Judges and Clerks Seminar San Antonio (M-T-W) 9821 Colonnade Blvd., San Antonio, TX January 23-26, 2012 Doubletree Hotel Level III Assessment Clinic Austin (M-T-W-TH) 6505 North IH-35, Austin, TX Texas Association of Counties: Courts & Local January 31-February 2, 2012 Embassy Suites San Marcos Government Technology Conference (T-W-Th) 1001 McCarty Lane, San Marcos, TX February 6-8, 2012 Crowne Plaza Addison Regional Judges and Clerks Seminar Addison (M-T-W) 14315 Midway Road, Addison, TX February 8-10, 2012 Crowne Plaza Addison Regional Clerks Seminar Addison (W-Th-F) 14315 Midway Road, Addison, TX February 15, 2012 TMCEC New Judges and Clerks Orientation Austin (W) 1609 Shoal Creek Blvd. Ste. 302, Austin, TX February 26-28, 2012 San Luis Resort and Spa Regional Judges Seminar Galveston (S-M-T) 5222 Seawall Blvd., Galveston, TX March 4-6, 2012 Omni Westside Hotel Regional Judges and Clerks Seminar Houston (S-M-T) 13210 Katy Freeway, Houston, TX March 19-21, 2012 Crowne Plaza Addison Traffic Safety Conference Addison (M-T-W) 14315 Midway Road, Addison, TX March 25-27, 2012 Omni Westside Hotel Prosecutors Seminar Houston (S-M-T) 13210 Katy Freeway, Houston, TX April 9-11, 2012 Overton Hotel Regional Judges and Clerks Seminar Lubbock (M-T-W) 2322 Mac Davis Ln, Lubbock, TX April 29-May 1, 2012 Isla Grand Beach Resort Regional Clerks Seminar S. Padre Island (S-M-T) 500 Padre Blvd., South Padre Island, TX May 6-8, 2012 Isla Grand Beach Resort Regional Attorney Judges Seminar S. Padre Island (S-M-T) 500 Padre Blvd., South Padre Island, TX May 8-10, 2012 Isla Grand Beach Resort Regional Non-Attorney Judges Seminar S. Padre Island (T-W-Th) 500 Padre Blvd., South Padre Island, TX 5/16/2012 TMCEC New Judges and Clerks Orientation Austin (W) 1609 Shoal Creek Blvd. Ste. 302, Austin, TX May 20-22, 2012 San Luis Resort and Spa Regional Clerks Seminar Galveston (S-M-T) 5222 Seawall Blvd., Galveston, TX June 4-6, 2012 Crowne Plaza Addison Regional Bailiffs/Warrant Officers Seminar Addison (M-T-W) 14315 Midway Road, Addison, TX June 11-13, 2012 Wyndham El Paso Airport Regional Judges and Clerks Seminar El Paso (M-T-W) 2027 Airway Blvd., El Paso, TX June 24-26, 2012 Omni Southpark Prosecutors & Court Administrators Seminar Austin (S-M-T) 4140 Governor's Row, Austin, TX July 9-13, 2012 Omni Southpark New Judges Seminar Austin (M-T-W-Th-F) 4140 Governor's Row, Austin, TX July 9-12, 2012 Omni Southpark New Clerks Seminar Austin (M-T-W-Th) 4140 Governor's Row, Austin, TX www.tmcec.com

Register Online: register.tmcec.com

Page 89 The Recorder August 201 TEXAS MUNICIPAL COURTS EDUCATION CENTER FY12 REGISTRATION FORM: Regional Judges & Clerks, Assessment Clinic, Court Administrators, and Traffi c Safety Conferences Conference Date: ______Conference Site: ______

Check one:  Non-Attorney Judge ($50)  Traffi c Safety Conference - Judges & Clerks ($50)  Attorney Judge not-seeking CLE credit ($50)  Assessment Clinic ($100)  Attorney Judge seeking CLE credit ($150)  Court Administrator Seminar - June ($100)  Clerk/Court Administrator ($50)

By choosing TMCEC as your MCLE provider, attorney-judges and prosecutors help TMCA pay for expenses not covered by the Court of Criminal Appeals grant. Your voluntary support is appreciated. The CLE fee will be deposited into the grantee’s private fund account is to cover expenses unallowable under grant guidelines, such as staff compensation, membership services, and building fund. Name (please print legibly): Last Name: ______First Name: ______MI:______Names you prefer to be called (if different): ______Female/Male: ______Position held: ______Date appointed/Hired/Elected: ______Years experience:______Emergency contact:______

HOUSING INFORMATION - Note: $50 a night single room fee TMCEC will make all hotel reservations from the information you provide on this form. TMCEC will pay for a double occupancy room at all regional judges and clerks seminars, the level III assessment clinic, the court administrators conference, and the traffi c safety conference: To share with a specifi c seminar participant, you must indicate that person’s name on this form.  I request a private, single-occupancy room ($50 per night : ____ # of nights x $50 = $______)  I request a room shared with a seminar participant. Room will have 2 double beds. TMCEC will assign roomate or you may request roomate by entering seminar participant’s name here:______ I request a private double-occupancy room, but I’ll be sharing with a non-participating guest. I will pay additional cost ($50 per night : ____ # of nights x $50 = $______). I will require:  1 king bed  2 double beds  I do not need a room at the seminar. Hotel Arrival Date (this must be fi lled out in order to reserve a room): ______ Smoker  Non-Smoker Municipal Court of: ______Email Address: ______Court Mailing Address: ______City: ______Zip:______Offi ce Telephone #: ______Court #: ______Fax: ______Primary City Served: ______Other Cities Served:______

STATUS (Check all that apply):  Full Time  Part Time  Attorney  Non-Attorney  Juvenile Case Manager  Other ______ Presiding Judge  Court Administrator  Justice of the Peace  Associate/Alternate Judge  Court Clerk/Deputy Clerk  Mayor (ex offi cio Judge) I certify that I am currently serving as a municipal judge or court support personnel in the State of Texas. I agree that I will be responsible for any costs incurred if I do not cancel at least 10 business days prior to the conference. I agree that if I do not cancel at least 10 business days prior to the event that I am not eligible for a refund of the registration fee. I will fi rst try to cancel by calling the TMCEC offi ce in Austin. If I must cancel on the day before or day of the seminar due to an emergency, I will call the TMCEC registration desk at the conference site IF I have been unable to reach a staff member at the TMCEC offi ce in Austin. If I do not attend the program, TMCEC reserves the right to invoice me or my city for meal expenses, course materials and, if applicable, housing ($85 or more plus tax per night). I understand that I will be responsible for the housing expense if I do not cancel or use my room. If I have requested a room, I certify that I work at least 30 miles from the conference site. Payment is due with the registration form. Registration shall be confi rmed only upon receipt of registration form and payment. ______Participant Signature (May only be signed by participant) Date

PAYMENT INFORMATION: Payment will not be processed until all pertinent information on this form is complete.

Amount Enclosed: $______Registration/CLE Fee + $______Housing Fee = $______ Check Enclosed (Make checks payable to TMCEC.)  Credit Card Credit Card Payment: Credit Card Number Expiration Date Credit card type: Amount to Charge: ______ MasterCard $______ Visa Name as it appears on card (print clearly): ______Authorized signature: ______

Please return completed form with payment to TMCEC at 1609 Shoal Creek Blvd., Suite 302, Austin, TX 78701, or fax to 512.435.6118. Page 90 The Recorder August 2011 TEXAS MUNICIPAL COURTS EDUCATION CENTER FY12 REGISTRATION FORM: New Judges & New Clerks, Bailiffs & Warrant Offi cers, and Prosecutors Conferences Conference Date: ______Conference Site: ______Check one:  New, Non-Attorney Judge Program ($200)  Prosecutor not seeking CLE/no room ($200)  New Clerk Program ($200)  Prosecutor seeking CLE/no room ($300)  Bailiff/Warrant Offi cer* ($150)  Prosecutor not seeking CLE/with room ($350)  Non-municipal prosecutor seeking CLE credit ($500)  Prosecutor seeking CLE/with room ($450)

By choosing TMCEC as your MCLE provider, attorney-judges and prosecutors help TMCA pay for expenses not covered by the Court of Criminal Appeals grant. Your voluntary support is appreciated. The CLE fee will be deposited into the grantee’s private fund account is to cover expenses unallowable under grant guidelines, such as staff compensation, membership services, and building fund. Name (please print legibly): Last Name: ______First Name: ______MI:______Names you prefer to be called (if different): ______Female/Male: ______Position held: ______Date appointed/Hired/Elected: ______Years experience:______Emergency contact:______

HOUSING INFORMATION TMCEC will make all hotel reservations from the information you provide on this form. TMCEC will pay for a single occupancy room at the following seminars: four nights at the new judges seminars, three nights at the new clerks seminars, two nights at bailiffs/warrant offi cers seminar, and two nights at the prosecutors conference (if selected). To share with another seminar participant, you must indicate that person’s name on this form.  I need a private, single-occupancy room.  I need a room shared with a seminar participant. [Please indicate roommate by entering seminar participant’s name: ______(Room will have 2 double beds.)]  I need a private double-occupancy room, but I’ll be sharing with a non-participating guest. [I will pay additional cost, if any, per night] I will require:  1 king bed  2 double beds  I do not need a room at the seminar. Hotel Arrival Date (this must be fi lled out in order to reserve a room):______ Smoker  Non-Smoker

Municipal Court of: ______Email Address: ______Court Mailing Address: ______City: ______Zip:______Offi ce Telephone #: ______Court #: ______Fax: ______Primary City Served: ______Other Cities Served:______STATUS (Check all that apply):  Full Time  Part Time  Attorney  Non-Attorney  Court Clerk  Deputy Court Clerk  Presiding Judge  Court Administrator  Prosecutor  Mayor (ex offi cio Judge)  Associate/Alternate Judge  Bailiff/Warrant Offi cer  Justice of the Peace  Other ______

*Bailiffs/Warrant Offi cers: Municipal judge’s signature required to attend Bailiffs/Warrant Offi cers’ program. Judge’s Signature: ______Date: ______Municipal Court of: ______TCLEOSE PID # ______

I certify that I am currently serving as a municipal judge, prosecutor, or court support personnel in the State of Texas. I agree that I will be responsible for any costs incurred if I do not cancel at least 10 business days prior to the conference. I agree that if I do not cancel at least 10 business days prior to the event that I am not eligible for a refund of the registration fee. I will fi rst try to cancel by calling the TMCEC offi ce in Austin. If I must cancel on the day before or day of the seminar due to an emergency, I will call the TMCEC registration desk at the conference site IF I have been unable to reach a staff member at the TMCEC offi ce in Austin. If I do not attend the program, TMCEC reserves the right to invoice me or my city for meal expenses, course materials and, if applicable, housing ($85 or more plus tax per night). I understand that I will be responsible for the housing expense if I do not cancel or use my room. If I have requested a room, I certify that I work at least 30 miles from the conference site. Payment is due with the registration form. Registration shall be confi rmed only upon receipt of registration form and payment. ______Participant Signature (May only be signed by participant) Date

PAYMENT INFORMATION: Payment will not be processed until all pertinent information on this form is complete.  Check Enclosed (Make checks payable to TMCEC.)  Credit Card Credit Card Payment: Credit Card Number Expiration Date Credit card type: Amount to Charge: ______ MasterCard $______ Visa Name as it appears on card (print clearly): ______Authorized signature: ______

Please return completed form with payment to TMCEC at 1609 Shoal Creek Blvd., Suite 302, Austin, TX 78701, or fax to 512.435.6118. Page 91 The Recorder August 201 TEXAS MUNICIPAL COURTS Presorted Standard EDUCATION CENTER U.S. Postage 1609 SHOAL CREEK BLVD., SUITE 302 PAID AUSTIN, TX 78701 Austin, Texas www.tmcec.com Permit No. 114

TMCEC MISSION STATEMENT

To provide high quality judicial education, technical assistance, and the necessary resource material to assist municipal court judges, court support personnel, and prosecutors in obtaining and maintaining professional competence.

Change Service Requested

Do you Still Want to Receive a Hard Copy?

The Municipal Court Recorder Is now A Green Publication

Name: Company: Address: Telephone No.: Fax No.: E-Mail Address:

TMCA members will receive a complimentary subscription in FY12 as a benefi t of TMCA membership. To become a TMCA member go to www.txmca.com/join.htm.

Yearly Subscription (4 issue) = $35 Total Amount Due: $35 Please make check payable to TMCEC. Return order form and check or money order payment to Texas Municipal Courts Education Center, 1609 Shoal Creek Blvd., Suite 302, Austin, Texas 78701 Note: Order now. Your subscription will be for September 1, 2011 to August 31, 2012.

Page 92 The Recorder August 2011