Toward the Goal of Justice

Procedural Fairness and Public Confidence Pat Riffel, CCM, CMCC

Describe the Importance of PROCEDURAL FAIRNESS to courts and court staff I. CONSTITUTIONAL ELEMENTS

• 5th

• 14th

II. CANONS OF JUDICIAL CONDUCT

Rule 2.2

Rule 2.12

III. PERCEPTION IS TRUTH

Discuss the necessity of written procedures and standing orders

IF IT’S NOT WRITTEN DOWN‐‐‐IT DIDN’T HAPPEN I. Key Benefits of a Standard Operating Procedures Manual

A. Training/Competence

B. Articulation of Required Steps

C. Standardization/Consistency

D. Promote Harmony

E. Efficient and Effective Delivery of Services

F. CYA II. Standing Orders • Must be in writing • Must be specific • Must Remove all discretion • Must be signed by Judge

COMMON EXAMPLES:

Identify practical steps to implement policies and procedures to ensure fairness

I. ELEMENTS OF PROCEDURAL FAIRNESS

• Understanding

• Voice

• Respect

• Neutrality

• Helpfulness

II. PRACTICAL TIPS AND BRAINSTORMING TOWARD THE GOAL OF JUSTICE--RESOURCES

NATIONAL CENTER FOR STATE COURTS— CourTools Access and Fairness Survey, Trial Court Performance Measures www.courtools.org

National Initiative for Building Community Trust and Justice Founded by Tom R Tyler—Yale University, one of premiere experts on subject of access and justice, author of Why People Obey the Law https://trustandjustice.org

Center for Court Innovations Measuring Perceptions of Fairness: An Evaluation Toolkit Research, articles, interviews https://www.courtinnovation.org

Procedural Fairness for Judges and Courts TIPS FOR ADMINISTRATORS http://www.proceduralfairness.org

FULL COURT PRESS— THE FOUR ELEMENTS OF PROCEDURAL FAIRNESS- - Mark Goodner 03/031/6 www.tmcec.com

“Improving compliance through respect and procedural fairness” Vicki Turetsky, Commissioner, National Office of Child Support Enforcement www.acf.hhs.gov/programs/css

STATE OF ARIZONA JUSTICE FOR ALL-Report and Recommendations of the Task Force on Fair Justice for All: Court-Ordered Fines, Penalties, Fees and Pretrial Release Policies AZCOURTS.gov

TEXAS JUDICIAL COMMISSION CODE OF JUDICIAL CONDUCT www.scjc.state.tx.us/pdf/txcodeofjudicialconduct.pdf.

US DEPT OF JUSTICE CIVIL RIGHTS DIVISION Office for Access to Justice “Dear Colleague” letter, “Letter to Courts” March 14, 2016 https://www.justice.gov/crt search “letter to courts”

UNITED STATES CONSTITUTION https://www.whitehouse.gov/1600/constitution ALASKA PLEDGE OF FAIRNESS

The fundamental mission of the Alaska Court System is to provide a fair and impartial forum for the resolution of disputes according to the rule of law. Fairness includes the opportunity to be heard, the chance to have the court process explained, and the right to be treated with respect. The judges and staff of the Alaska Court System therefore make the following pledge to each litigant, defendant, victim, witness, juror, and person involved in a court proceeding: We will LISTEN to you We will respond to your QUESTIONS about court procedure We will treat you with RESPECT

Dissecting Citations Ashley McSwain

I. Definitions a. According to section 703.002 of the Texas Transportation Code, (when discussing the non‐ resident violator compact” a citation is defined as: i. “any summons, ticket, or other official document issued by a police officer for a traffic violation containing an order which requires the motorist to respond” b. According to Ballentine’s Law Dictionary, a citation is defined as: i. “a writ commanding a person to appear for some purpose specified” c. Clerks Note: Think of this in terms of bond forfeiture, and civil cases. Essentially, the word “citation” in a legal context means to come appear in court for this purpose. In our courts, officers issue citations for class “c” criminal offenses, and occasionally a clerk will prepare a citation for a civil docket (ex: bond forfeiture dockets). Any type of citation (whether criminal or civil) generally notifies the defendant that there is a legal matter pending against them, and they must appear in court for that matter. II. Authority to Issue a. Chapter 14 of the Texas Code of Criminal Procedure requires a law‐enforcement officer to take an individual being charged with a crime before a magistrate. Section 14.06(b) of that Code provides a provision for class “c” misdemeanors (other than a charge for public intoxication) that allows an officer to release a defendant without taking them before a magistrate if the officer issues the defendant a citation. i. Clerks note: When an officer detains an individual and charges that individual with a criminal violation, the individual is legally under arrest at that time. However, when it is a class “c” offense (other than public intoxication), the officer can release the individual with a notice to appear in court (citation) rather than taking them immediately before a magistrate 1. For example, you are pulled over for a minor traffic violation. When the officer decides to file charges against you for the offense, you are technically under arrest. The officer has the discretion; however, to release you with a citation rather than taking you to jail. 2. We do not consider traffic violations, or being detained for a traffic offense to be “arrests” – but legally the officer is required to take us before a magistrate if we commit a criminal offense. The way officers take persons before a magistrate is to book them into jail, where they will be seen by a magistrate. Rather than arresting and taking every person who commits a class “c” crime to jail, officers typically just issue a citation. b. There are two statutory offenses that an officer is required to release a person with a citation, and one offense where the officer is prohibited from releasing a person with a citation: i. Speeding or Open Container 1. Officers may not jail a person for either of these two offenses, if the defendant signs the citation. Officers may however, jail a person who refuses to sign their citation. a. Clerks note: Generally, if defendant will not sign promising to appear in court – then law‐enforcement is immediately required to take you before a magistrate.

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Dissecting Citations Ashley McSwain ii. Public Intoxication 1. Officers are prohibited by statute from releasing an individual with a public intoxication charge. Officers are required to take an individual violating this law immediately before a magistrate. a. Clerks note: Officers will often fill out a citation to use with their book in paperwork at the jail and then turn the citation into the court. In this case, the citation turned into the court provides the clerk with the information that clerk’s need to process the case. This citation is essentially notice that the officer intends to file this charge, but to formally file a public intoxication charge a formal complaint must be filed on the case. b. Clerks note: Generally, if an officer turns in a citation to your court for public intoxication – file a formal complaint immediately. III. Complaints a. Citations versus Complaints i. A citation is a notice to appear in court ii. A complaint is a formal charging instrument iii. Here’s the tricky part: 1. A citation may serve as the complaint until a defendant enters a plea of not guilty. 2. The defendant can enter a plea not guilty, waive the filing of a complaint – so long as the waiver is in writing, agreed upon by the prosecutor, signed, and filed with the court. 3. The statute of limitations for class “c” offenses is two years, so you only have 2 years to file a charge; therefore, if a formal complaint has not been filed on a citation within 2 years of the date of offense, the statute of limitations has expired. iv. Clerks role in complaints: 1. While the tricky part above seems quite confusing – essentially, the court clerks simply needs to know when to file a formal complaint. The laws, motions for dismissals, agreements to proceed without a formal complaint are not clerk duties. 2. Clerks should file formal complaints in these following situations: a. Immediately if a citation is received for public intoxication b. As soon as a defendant enters a plea of not guilty c. Before the citation hits 2 years of age. i. On a practical note, it is a good practice to always make sure that you have a complaint on file before issuing a warrant in combination with the probable cause statement. d. Any charge filed in your court without a citation. e. Non‐appearance crimes (FTA/VPTA) – since no citation is issued the complaint must be filed, otherwise no charges have been filed. i. Who is the affiant? (bailiff or court clerk – whomever is going to raise their right hand and swear that the person did not appear in court) f. In all other situations, the case can proceed through the court process, conclude, and be disposed of without ever filing a formal complaint. Page 2 of 5

Dissecting Citations Ashley McSwain

IV. Requirements of a Citation a. The Texas Code of Criminal Procedure, Section 14.06(b) requires that each citation “contains written notice for the time and place the person must appear before a magistrate, the name and address of the person charged, the offense charged, and the following admonishment . . . [see legal warnings required section].” b. The Texas Transportation Code, Section 543.003 requires that when, “An officer who arrests a person for violation of this subtitle punishable as a misdemeanor and who does not take the person before a magistrate shall issue a written notice to appear in court showing the time and place the person is to appear, the offense charged, the name and address of the person charged, and, if applicable, the license number of the person’s vehicle. c. When a conviction is entered, additional information (in addition to the information listed above) is required to be reported to DPS. While the law does not necessarily require all of this information to be on the initial citation, all of this information will be needed by the clerk and it is a common practice to obtain most of this information on the citation. i. The Texas Transportation Code, Section 543.202 lists the requirements that either the Judge or Clerk (dependent on type of court) must report to DPS anytime a conviction is entered for an offense that violated a law regulating the operation of vehicles on highways. 1. the name, address, physical description, including race or ethnicity, date of birth, and driver's license number of the person charged; 2. the registration number of the vehicle involved; 3. whether the vehicle was a commercial motor vehicle as defined by Chapter 522 or was involved in transporting hazardous materials; 4. the person's social security number, if the person was operating a commercial motor vehicle or was the holder of a commercial driver's license or commercial learner's permit; 5. the date and nature of the offense, including whether the offense was a serious traffic violation as defined by Chapter 522; 6. whether a search of the vehicle was conducted and whether consent for the search was obtained; 7. the plea, the judgment, whether the individual was adjudicated under Article 45.0511, Code of Criminal Procedure, and whether bail was forfeited; 8. the date of conviction; and 9. the amount of the fine or forfeiture. d. Clerks note: For a practical use, remember that some information is required on a citation (defendant’s name & address, offense charged, place and time to appear, license plate number when applicable, and the required legal warnings), and the other information is only required when reporting a conviction to DPS (such as the social security number of a CDL holder). The clerk essentially obtains most of the required information for reporting purposes off of the citation – even if the law does not require it to be entered on the citation. e. The Texas Administrative Code, Section 16.100, provides additional requirements when the person is driving a commercial motor vehicle or who is the holder of a commercial driver’s license: i. the name, address, physical description, and date of birth of the party charged; Page 3 of 5

Dissecting Citations Ashley McSwain ii. the number, if any, of the person's driver’s license; iii. the registration number of the vehicle involved; iv. whether the vehicle was a CMV as defined in Texas Civil Statutes, Article 6687b‐2; v. whether the vehicle was involved in the transporting of hazardous materials; and vi. the date and nature of the offense, including whether the offense was a serious traffic violation as defined in Texas Civil Statutes, Article 6687b‐2. f. Clerks note: Most of the information required for a CMV driver or CDL holder is already collected with the mandatory requirements for issuing a citation and the information mandatory for conviction reporting. The main two additional requirements are (1) whether the vehicle is a CMV, and (2) whether the vehicle was transporting hazardous materials. V. Legal Warnings Required a. (largest text) – The Texas Transportation Code, section 708.105 requires that a citation issued for a traffic law violation of this state or a political subdivision of this state must include, in type larger than any other type on the citation, the following statement: i. "A conviction of an offense under a traffic law of this state or a political subdivision of this state may result in the assessment on your driver's license of a surcharge under the Driver Responsibility Program." b. (second largest text) ‐ The Texas Transportation Code, Section 601.233(a) requires that any citation issued for violating the vehicle insurance laws (see sections 601.191 and 601.053) must include (in a type larger than other type on the citation, except for the type of the statement required in Section 708.105, the following statement: i. "A second or subsequent conviction of an offense under the Texas Motor Vehicle Safety Responsibility Act will result in the suspension of your driver's license and motor vehicle registration unless you file and maintain evidence of financial responsibility with the Department of Public Safety for two years from the date of conviction. The department may waive the requirement to file evidence of financial responsibility if you file satisfactory evidence with the department showing that at the time this citation was issued, the vehicle was covered by a motor vehicle liability insurance policy or that you were otherwise exempt from the requirements to provide evidence of financial responsibility." c. (bold, underlined, or all caps) The Texas Penal Code, Section 14.06(b) requires that all citations display (in either boldfaced or underlined type or in capital letters) the following admonishment: i. "If you are convicted of a misdemeanor offense involving violence where you are or were a spouse, intimate partner, parent, or guardian of the victim or are or were involved in another, similar relationship with the victim, it may be unlawful for you to possess or purchase a firearm, including a handgun or long gun, or ammunition, pursuant to federal law under 18 U.S.C. Section 922(g)(9) or Section 46.04(b), Texas Penal Code. If you have any questions whether these laws make it illegal for you to possess or purchase a firearm, you should consult an attorney." d. (no statutorily required font) ‐ The Texas Code of Criminal Procedure, Section 45.0511(q) requires that citations issued for certain transportation code offenses include: i. "You may be able to require that this charge be dismissed by successfully completing a driving safety course or a motorcycle operator training course. You will lose that right if, on or before your appearance date, you do not provide the court with notice of your request to take the course." Page 4 of 5

Dissecting Citations Ashley McSwain e. (Scofflaw Courts, no statutorily required font) – The Texas Transportation Code, Section 702.004 requires that when an officer from a municipality that has a contract under Section 702.003 (a court that participates in the scofflaw program) issues a citation, the officer must issue a written warning: i. The warning must state that if the person fails to appear in court as provided by law for the prosecution of the offense or fails to pay a fine for the violation, the person might not be permitted to register a motor vehicle in this state. ii. Clerks note: this statute doesn’t require an exact quote like other statutes do iii. Clerks note: if your court does not participate in the scofflaw program, this warning is not necessary to your agency. This only applies to the courts that have a contract to deny registration renewals under 702.003. f. (optional, no statutorily required font) – The Texas Code of Criminal Procedure, Section 45.057(h) states: i. “A child and parent required to appear before the court have an obligation to provide the court in writing with the current address and residence of the child. The obligation does not end when the child reaches age 17. On or before the seventh day after the date the child or parent changes residence, the child or parent shall notify the court of the current address in the manner directed by the court. A violation of this subsection may result in arrest and is a Class C misdemeanor. The obligation to provide notice terminates on discharge and satisfaction of the judgment or final disposition not requiring a finding of guilt.” ii. For the above obligation to become effective, courts must notify the child, parent, or both. One way to provide acceptable notice is by including this information on the citation.

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PENNIES & PAPER PIGS Presented by: Matthew Freeman, MPA & Jaime Brew, MBA, CMCC, CCM

Objectives

• Identify current trend in payment of fines and cost in currency.

• Define laws and legal authority pertaining to accepting coins, cash and other methods of payments.

• List strategies for developing policies and procedures.

Current Trends

3 Video – Paying a Parking Fine in Coins Adelaide City Council (South Australia)

• https://www.bing.com/videos/search?q=video+of+people+making+pay ments+at+courthouse+with+coins&&view=detail&mid=DC3A3F63215A 1FE933A2DC3A3F63215A1FE933A2&FORM=VRDGAR

Video – Paying a Parking Fine in Coins Adelaide City Council (South Australia)

• https://www.bing.com/videos/search?q=video+of+people+making+pay ments+at+courthouse+with+coins&&view=detail&mid=DC3A3F63215A 1FE933A2DC3A3F63215A1FE933A2&FORM=VRDGAR

Video – City Refuses Coins as Form of Payment for Ticket (College student trying to pay fine)

• https://www.bing.com/videos/search?q=paying+citations+in+coins&& view=detail&mid=54E30ADAFA397572557D54E30ADAFA397572557D &FORM=VRDGAR

6 Video – City Refuses Coins as Form of Payment for Ticket (College student trying to pay fine)

• https://www.bing.com/videos/search?q=paying+citations+in+coins&& view=detail&mid=54E30ADAFA397572557D54E30ADAFA397572557D &FORM=VRDGAR

Current Trends in Payment of Fines and Costs

• Courts typically accept the following methods of payment: • Currency • Coins (Large quantity must be rolled) • Personal Checks • Money Orders • Credit/Debit Cards

• What payment trends do you see in your court?

Laws and Legal Authority

9 Coin Act of 1873

Section 16

• The silver coin of the United States in denominations of a dollar, half‐dollar, quarters, and dimes shall be a legal tender in payment of debts for all sums not exceeding five dollars in any one payment.

Coin Act of 1873 (Cont.)

Section 17

• Copper‐nickel coinage of five cents, three cents, and one cent shall be a legal tender in any one payment in the amount of twenty cents.

• Prior to 1873 copper‐nickel coins were not legal tender, but were used.

Historic Laws

• Many of these old laws are still passed on as current and truths as to how much coin can be accepted for payment.

• Additionally, some people believe that these laws require government agencies to accept payment.

12 It Is The Law, Right?

What is the law? • The Coin Act of 1965 Section 31 U.S.C. 5103, United States coins and currency (including Federal reserve notes and circulating notes of Federal reserve banks and national banks) are legal tender for all debts, public charges, taxes, and dues. Foreign gold or silver coins are not legal tender for debts.

U.S. Treasury’s Interpretation

U.S. Department of The Treasury says:

“There is, however, no Federal statute mandating that a private business, a person or an organization must accept currency or coins as for payment for goods and/or services. Private businesses are free to develop their own policies on whether or not to accept cash unless there is a State law which says otherwise.”

Texas Law

• Title 1. Code of Criminal Procedure, Chapter 43. Execution of Judgment, Section 43.02

 PAYABLE IN MONEY: All recognizances, bail bonds, and undertakings of any kind, whereby a party becomes bound to pay money to the State, and all fines and forfeitures of a pecuniary character, shall be collected in the lawful money of the United States only.

15 Texas Law (Cont.)

• Title 1. Code of Criminal Procedure, Chapter 45. Execution of Judgment, Section 45.041  The fine amount and terms of payment;  The costs to the State (court costs);  No mention of how it is to be tendered.

What Do You Do? What Can You Do?

• Per Section 31 U.S.C. 5103 all coins and federal reserve notes are legal tender. • C.C.P. 43.02 states all fines and cost shall be collected in lawful money. • C.C.P. 45.041 does not specify a justice or judge has any authority to regulate in what manner of tender a payment may be made. • It is not made clear, one way or the other, if a court can put limitation on restricting, or not restricting, currency or coin denominations. • What is not specified either is how a clerk accepts payments or denominations.

Strategies for Developing Policies and Procedures

18 Video – Paying Ticket in Pennies

• https://www.bing.com/videos/search?q=video+of+people+making+pay ments+at+courthouse+with+coins&&view=detail&mid=E6BEE7646396 D2EA8C51E6BEE7646396D2EA8C51&rvsmid=DC3A3F63215A1FE933 A2DC3A3F63215A1FE933A2&fsscr=0&FORM=VDQVAP

Video – Paying Ticket in Pennies

Clerk’s Role

• You became an officer of the court when you took the Oath of Office.

• Your job is to uphold public trust and confidence and act in a professional manner despite the circumstances.

• Your job is to process payments and safeguard funds while following City and Departmental policies and procedures.

21 Create Written Policies and Procedures

• Written policies and procedures are paramount to expressing in what manner an organization will accept payment. • A court’s departmental policy and procedures should be in‐line with the City’s Finance Department policy and procedures. • Court staff should be adequately trained on the City and Departmental cash handling procedures so they know how to handle certain situations that may arise.

Creating a Policy

When creating the court’s policy or procedure keep the following in mind:

• Include all pertinent stakeholders:  City Attorney  City Management  City Finance Director \ Chief Finance Officer  Court Clerk \ Court Administrator  Presiding Judge (at the judges option)

Creating a Policy (Cont.)

When creating the court’s policy or procedure keep the following in mind:

• The policy and procedure must be in writing and be:  Part of a City Cash Policy  Part of Court Procedures Manual  Able to be made available to the public to view  Posted on a website or other public location

24 Suggested Practices

You may want to consider incorporating the following in a policy:

• Customers must count payment to the receiver to verify by recounting. • Coins shall be rolled in accordance with standard banking practices according to denomination. • Coin rolls shall have customers name, phone number, or other identifiers. • Payments are not received and final until a receipt has been issued. • Handle every customer with empathy.

Further Discussion and Questions

Thank you for your time and attendance. All positive feedback is appreciated in you surveys.

26 Courts Reaching Out to Underserved Populations Driving on the Right Side of the Road Municipal Traffic Safety Initiatives Texas Municipal Courts Education Center

Agenda • Introductions • What is Driving on the Right Side of the Road? • What is an UNDERSERVED population? • DRSR Books • DRSR Curriculum and Activities • DRSR Website •MTSI Resources •MTSI Website • Other helpful websites •Wrap-up

Introductions

•Elizabeth De La Garza • Teacher for 32 years in Round Rock ISD • Currently the TxDOT Grant Administrator for the Driving on the Right Side of the Road grant for school aged student traffic safety

10/13/2016 1 4

DRSR is a TxDOT funded project for K‐ 12 students and teachers which infuses traffic safety lessons into social studies, language arts, health, math, and other curricula. TMCEC has developed numerous traffic safety storybooks and lessons that it distributes to schools, municipal courts, and community groups!

•regularly conducts teacher trainings • sets up information and giveaway booths at school‐related and traffic safety conferences • attends other community outreach events •ships materials to those schools, courts, and community groups that request them – FREE OF CHARGE.

What is an “underserved population”? • Medically – it’s an area where the population has the following traits ▫ ratio of primary medical care physicians per 1,000 population, ▫ infant mortality rate, ▫ percentage of the population with incomes below the poverty level, and ▫ percentage of the population age 65 or over • Other traits ▫ Economically disadvantaged area ▫ Chronic health concerns ▫ Homeless or Home insecurity ▫ Food insecurity ▫ Rural

10/13/2016 2 Educationally • Title 1 Schools ▫ Federal funds that ensure that all children have a fair, equal and significant opportunity to obtain a high quality education and reach, at minimum, proficiency on challenging state academic achievement standards and state academic assessments. • Determined on percentage of free and reduced lunch • School Counselor Bridging the Gap – The College Board ▫ Underserved students are defined as students who do not receive. equitable resources as other students in the academic pipeline. Typically, these groups of students include low-income, underrepresented. racial/ethnic minorities, and first generation students as well as many.

What can you do? •Mentor ▫ Mentoring can happen one on one, a court actively mentoring a classroom or entire school •Model ▫ Show kids what you have overcome to become what you are today • Be there ▫ Municipal Court Week ▫ Career Day ▫ Volunteer ▫ Resources

Everything we show you today is available online. http://www.drsr.info • Books in English and Spanish •Safety Games • Lesson Plans – K through 12 • Mock Trial Guides • Safety information Sheets

10/13/2016 3 Other items available

• Pocket US Constitutions • Noggin Notebooks •Stickers ▫ Don’t Text, Don’t Talk ▫ Don’t Drink and Drive • Coloring Books ▫ Tex and Dot Traffic Safety Activity Coloring Book ▫ A Day in the Municipal Court

The Power of Reading to Kids The foundation of literary development

• Developing a relationship • Modeling good reading skills - fluency • The basics of how to read a book • Basic speech skills • Thinking skills • Discipline and attention skills •Reading is FUN!

10/13/2016 4 Other reading strategies

• Before reading ▫ Review the “hard words” ▫ What is the book for? Why are you reading it? ▫ Expectations – how should the students behave? •After reading? ▫ Ask questions! ▫ Did they get the main idea? ▫ Reading is FUN!

Students Reading Out-loud

•Choral Reading ▫ Entire class reads sections together •Echo Reading ▫ Students “echo” teacher reading, making sure to copy inflection and style • Crazy Professor Reading ▫ Teacher reader overplays each of the reading ▫ Teacher reads like a robot, prompting students to correct the reading during the echo.

15 Our K-3 Curriculum Book

Three sections: • K to 3rd Grade Lessons Monkey puppet theater I Spy Map Safety Match-up Cards • Traffic Safety Activities and Games Be Safe Bingo Traffic Sign Scavenger Hunt Traffic Safety Seek and Find Hit the Road Card Game Dangerous Dan Card Game • Traffic Be Smart-Stay Safe: Safety Centers Activities to be used as learning stations or as stand alone activities with ELAR or SS blocks.

10/13/2016 5 18

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• Station activity ▫ Go over the vocabulary ▫ Hand out Who’s Who in the Courtroom ▫ Allow students to work in pairs or trios ▫ Go over answers • Review what was learned

10/13/2016 7 • National Night Out - October • Municipal Court Week - November

What is MTSI?

• Municipal Traffic Safety Initiative Mission ▫ Giving Texas’ Municipal Courts the means to deter and prevent impaired driving • How do we do this? ▫ offering impaired driving courses at judicial education seminars ▫ through webinars ▫ distributing free anti-DUI and DWI books and materials ▫ recognizing as models outstanding municipal courts in the area of impaired driving prevention (MTSI Awards) • Award winning! ▫ 2016 Peter K. O'Rourke Special Achievement Award from the Governor's Highway Safety Association (GHSA)

MTSI Activities

10/13/2016 8 Helpful Websites and Resources •DRSR ▫ www.drsr.info •MTSI ▫ http://www.tmcec.com/mtsi/ • Law-Related Education ▫ www.texaslre.org •TxDOT ▫ www.txdot.gov • Click It or Ticket ▫ www.texasclickitorticket.com • Buckle Up Texas ▫ www.buckleuptexas.com

Ned Minevitz Elizabeth De La Garza TxDOT Grant Administrator and TxDOT Grant Administrator Program Attorney Municipal Traffic Safety Initiatives Driving on the Right Side of the Road [email protected] [email protected] 512‐320‐8274

10/13/2016 9 The Court Abides: Penalties & Punishments October 25, 2016

Presenter: Bianca Bentzin – Chief Prosecutor – City of Austin [email protected] – 512-974-4804

FINE RANGES

- State moving violations. (Texas Transportation Code Sec. 542.401 – “A person convicted of an offense that is a misdemeanor under this subtitle . . . shall be punished by a fine of not less than $1 or more than $200.)

- Penal code violation. (Texas Penal Code Sec.12.23 – “An individual adjudged guilty of a Class C misdemeanor shall be punished by a fine not to exceed $500.”)

- Check your own city code.

FEES and COURT COSTS

- Court costs must be assessed if there is a judgment, sentence, or deferred adjudication (Government Code Sec.102.021) PLUS the minimum fine.

- Allocation of fees is an intricate process. Follow the chart at http://www.tmcec.com/files/6614/3939/6434/2015_Court_Costs.pdf

- Time payment fee of $25.00 must be assessed if the defendant does not pay the fine in full after 30 days. (Local Government Code Sec. 133.103)

DEFERRED DISPOSITION

- If the defendant enters into deferred disposition, “the judge may impose a special expense fee on the defendant in an amount not to exceed the” fine maximum. The deferral fee must be paid in full by the end of the deferral period. (Texas Code of Criminal Procedure Sec. 45.0511)

- A deferral may include any requirements – community service, DSC, classes, essays, etc. Many prosecutors look for creative options to help make the penalty more meaningful and to help the defendant learn something from the experience.

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COMMUNITY SERVICE – (Code of Criminal Procedure Sec. 45.049)

- Can be used to satisfy current and past fines.

- Requires an indigency hearing to determine if the defendant has sufficient resources or income to pay fines and costs.

- The judge must specify the number of hours to be worked.

- Community service may only be done at “a governmental entity or a nonprofit organization that provides services to the general public that enhance social welfare and the general well-being of the community.”

INDIGENCY HEARING

- http://www.tmcec.com/fines/

SPECIAL CASES

- School zones – has higher court costs than other moving violations.

- Disabled parking – has a mandatory minimum fine of $513.00 (Texas Transportation Code Sec. 681.011)

- Underage alcohol offenses – mandatory community service related to alcohol education (Texas Alcoholic Beverage Code Sec.106.071); mandatory alcohol awareness class (Texas Alcoholic Beverage Code Sec.106.115). Classes can be located at TDSHS at 512-206-5000, 866-378-8440, http://www.dshs.state.tx.us/offendered/oe_rosters.shtm or an approved online class at www.dadaponline.com

- Construction zone w/workers present – fine range is doubled ($2.00 - $400.00) (Texas Transportation Code Sec. 542.404).

- Water Safety Act Violations – on a first offense, the judge may offer deferred adjudication with a boater education course in lieu of a fine (Texas Parks and Wildlife Code Sec. 31.130).

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COMMON ISSUES

- What should a clerk do when the judge orders an illegal sentence?

- What should a clerk do when a deferral agreement does not cover court costs?

- What is the difference between deferred adjudication and deferred prosecution?

Austin Monitor April 22, 2015

Why your speeding ticket doesn’t pay for what you think it does Travis County and the City of Austin take part in a regular fiscal dance with the State of Texas over who pays the costs of government. Over the next three days, KUT News and the Austin Monitor will look at key examples of that interaction in our series, “The Buck Starts Here.” Today, we take on Austin’s Municipal Courts. When Austin residents are handed traffic tickets or other Municipal Court fees and fines, they likely assume that the city is profiting handsomely from those often colorful sheets of paper. If they could see where those revenues go, however, they might come to a different conclusion. In fact, the city’s current budget projects that the court will face a roughly $3.7 million shortfall in the fiscal year that started in October by incurring about $19.7 million in general expenses and pulling in about $16 million in general revenue. On top of that, it projects that the court will fall short in three of its special revenue funds and break even on the fourth. Though there are many reasons this might be happening, one view among those involved is that the Texas Legislature has made it difficult for municipal and county courts to balance their budgets by tasking them with administering certain fees and sending the bulk of the revenue back to the state. In many cases, the court keeps only between 5 to 10 percent of the fees it collects.

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Mayor Steve Adler told the Austin Monitor and KUT News that he believes the situation is “a pretty good example” of an unfunded mandate, or a requirement that one government imposes on a smaller one without budgeting adequate money for implementation. “We have a system that’s been set by the state, and the state takes its share and leaves us to do a program with less funds than what the program costs,” Adler said. “We have to cover that shortfall with other revenue.” Noting that the city’s main sources of revenue are sales and property taxes, Adler said that the fee system is, in part, “one of the reasons why people’s property taxes are at the level that they are at.”

A 2014 study of court costs and fees in Texas that was directed by the 83rd Legislature and carried out by the Office of Court Administration, or OCA, indicates that the state government is in a more enviable situation than local governments. “Most court fees and costs end up being transmitted in whole or in part to the state,” the report reads. “On the other hand, court fees and costs are generally insufficient to cover the cost of funding the judiciary at the local government level, with expenditures for the judiciary oftentimes far surpassing collected revenues from court fees and costs.” The Municipal Court is in charge of administering Class C misdemeanors, which include both city and state offenses. Most of the revenue the court collects goes to the city’s general fund, which is also its primary funding source. Revenues from certain fees go into special revenue funds that the city can access for specific purposes, such as juvenile case management. According to its most recent annual report, the court made more money on traffic tickets than any other source of revenue in the last fiscal year, hauling in about $6.9 million, or 42 percent of the revenue it contributed to the city’s general fund. The court’s next top source was parking tickets, which comprised $3.4 million, or 20 percent of its general revenue. When individuals receive those tickets, however, they’re generally not told what they’re being required to pay for.

When the Monitor requested the breakdown of a “typical” speeding ticket, the court provided the fees and fines it assesses for speeding in a 30 mph zone. The ticket consists of a laundry list of set fees, some of which the state has mandated and some of which the city has adopted, along with a municipal “base fine” that goes to the general fund and is determined by the driver’s speed. According to OCA Assistant General Counsel Ted Wood, a fine differs from a fee in that it is a punishment that a judge sets within a certain range prescribed by the Legislature. Fees, also known as court costs, are not punitive and are meant to recuperate court costs. Typically, judges cannot waive or change court costs. The set fees total $103.10, of which $76.39 goes to the state and $26.71 goes to the city for various purposes. The base fine ranges from $41.90 to $171.90 for driving between less than 5 mph to more than 25 mph over the speed limit. A driver caught going 39 miles per hour, for example, would receive a $165 ticket. The two most substantial state-mandated fees in the ticket are a $40 “consolidated fee” and a $30 “state traffic fee.” The state gets 90 and 95 percent of these, respectively, and the city gets what is left over.

It is likely that the consolidated fee, listed in the OCA report as the “consolidated court cost,” generates substantial revenue for the state. It applies to all felonies at $133, all Class A and B

- 4 - misdemeanors at $83 and all “non-jailable misdemeanor offenses … other than a conviction relating to a pedestrian or the parking of a motor vehicle” — such as speeding tickets — at $40. According to the report, the consolidated court cost is allocated to 14 places in the state budget. The top three destinations, based on the percentage of revenue they receive, are the compensation to victims of crime fund, the criminal justice planning account in the general revenue fund, and the law enforcement and custodial office supplemental retirement fund. About two-thirds of the state traffic fee, listed as the “state traffic fine” in the report, goes to the state’s general fund, while the remainder is earmarked for trauma and emergency medical services funding. In certain cases, surplus revenue will go to the Texas Mobility Fund. The OCA notes in its report that it and the Texas Comptroller of Public Accounts treat the state traffic fine as a fee, despite the ambiguity of its name.

Harris County Public Defender Jani Maselli Wood, who happens to be married to Ted Wood, has challenged most of the fees that make up the consolidated court cost in a case called Orlando Salinas v. the State of Texas. It is pending at the Texas Court of Criminal Appeals, the state’s highest court for criminal matters.

Maselli Wood told the Monitor and KUT that she believes the fees she has challenged are not going to the courts — or even the judiciary — and are therefore unconstitutional. She went on to argue that many state-mandated court costs and fees may be regarded as “hidden taxes for people who are convicted of offenses, including Class C misdemeanors.” Others might argue in favor of the consolidated court costs and say that criminals should be obligated to carry their weight as far as funding the criminal justice system. From that perspective, requiring a resident charged with a crime to chip in to the compensation to victims of crime fund may be considered reasonable. Whether it is constitutional, though, will be up to the courts to decide.

Regardless, the system has a clear financial impact on the Municipal Court. According to data it provided to the Monitor, the court collected about $30.3 million in gross revenue and bonds during the last fiscal year and submitted about $9.3 million of that to the state. It also allocated about $2.1 million to other agencies “as required by law and contractual obligations.” These other agencies, according to the court, include the Texas Comptroller of Public Accounts, the Texas Parks and Wildlife Department, the Austin Independent School District, the city’s school crossing guard program, a collections company called the Municipal Services Bureau and a database company, Omnibase.

In state fiscal year 2013, which started in September 2012, the OCA report says that “court cost and filing fees generated over $408 million in revenue deposited to the state, while the total Article IV general revenue and general revenue-dedicated appropriations in that same fiscal year were just under $219 million.” Article IV of the Texas Constitution refers to the state’s executive branch.

Though this is not necessarily an apples-to-apples comparison, Adler commented generally on the revelation. “The state is able to get a surplus that it can then put into its general fund to put into other things,” he said. “I wish the city were in that position.”

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Though city budget data for fiscal year 2013 does not match up perfectly with current figures because of a switch to a new accounting method, the budget shows that the Municipal Court made $2.6 million that year, incurring about $13.9 million in general costs and taking in about $16.4 million in general revenue.

Staff wrote in the budget that the accounting change was intended “to provide a more complete picture of the true costs for each department and to bring the City of Austin in line with budgeting practices of other municipalities.” If that is the case, costs in fiscal year 2013 were likely higher than what was reported.

Of course, the Austin Municipal Court is not the only one in the state that is on the hook for revenue. According to the Texas Municipal League, an association that lobbies on behalf of cities in Texas, municipal courts collected over $229 million in what it refers to as “state fee/fine revenue” in 2013. County courts also must submit revenue to the state.

Reform efforts are underway in the Legislature. The same law that directed the OCA report — Senate Bill 1908, filed by Sen. Royce West (D-Dallas) — led West to file SB 287 in order to eliminate certain court fees and costs that have been deemed unnecessary. It has been engrossed in the Senate and sent to the House. House Bill 1516, filed by Rep. Armando Walle (D-Houston), would require that an individual charged with a court cost receive an itemized bill before having to pay. It is currently pending in the House Criminal Jurisprudence Committee.

Maselli Wood said she was planning to testify in favor of the bill at its hearing on April 8. “There’s no transparency in government to get an itemized cost bill,” she said. “If people were aware of it, they could talk to their own legislators and say, ‘Look, why am I being charged this consolidated court cost when I got a traffic ticket and paid through the mail?’” she continued. “There would be more rumbling if people knew exactly what they were paying.”

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Managing, Retaining and Destroying Records

Texas Municipal Courts Education Center

Texas State Library and Archives Commission P.O. Box 12927, Austin, TX 78711-2927 State and Local Records Management Division (512) 463-7610 | [email protected] www.tsl.texas.gov/slrm/

Records Management Assistance

. 6 Government Information Analysts • 150 state agencies • 10,000+ local governments . Consulting and Training • Retention, destruction, imaging, managing email, disaster preparedness and recovery… . Retention Schedule Reviews/Development

Need to find something?

www.tsl.texas.gov/slrm

. Publications . Forms . Retention schedules . Training materials . Contact information Agenda:

 Laws, rules, and definitions  Compliance  Retention Schedules  Disposition & Storage  Managing e-records

Local Government Records Act

. Bulletin D • Compliance requirements • Local authority • Role of Records Management Officer (RMO)

. http://bit.ly/bulletind

Local Government Record

. Documents the transaction of public business . Is created or received by a local government . Is a record whether it is open or closed . May exist in any medium “Non-Records”

Convenience copies: “Extra identical copies of documents created only for convenience of reference or research” (Local Government Code §201.003(8)(A)) Copies of documents furnished to the public as part of a Public Information Act request

“Non-Records”

Blank forms/stocks of publications Library or museum materials Alternative Dispute Resolution working files

Compliance

1. Records Management Policy (Order, Ordinance, Resolution) 2. Records Management Officer (RMO) 3. Records Retention Schedule/Decision Compliance Element 1: Records Management Policy

. Should designate Records Management Officer (RMO) – by position is recommended . Must be approved by: o Elected official (for elective offices); or o Governing body. Must also file documentation showing governing body approval of policy. . Must file with TSLAC

Compliance Element 1: Policy Models

. PM1 – Elected county official . PM2 – Counties or large local Must include governments documentation . PM3 – Small municipality showing . PM4 – Small local government approval by governing body

. Policy Models: http://bit.ly/tslac-forms

Compliance Element 2: RMO Appointment

. Must match policy . Designation of Local Government RMO - Form SLR 504 . Notify us within 30 days Compliance Element 3: Retention Decision

Three Options: A. Permanent retention of all records; B. Declaration of Compliance (SLR 508); C. Records Control Schedule (SLR 540/500)

Compliance Element 3: Retention Decision

Option B: Declaration of Compliance o Adopt TSLAC local schedules o Form SLR 508 o Choose schedules that apply to your organization

Local Retention Schedules

GR – General Records plus… . CC – County Clerk • PS – Public Safety . DC – District Clerk • PW – Public Works . EL – Elections/Voter • SD – Schools . HR – Health • TX – Taxation . JC – Junior Colleges • UT – Utility Services . LC – Justice/Municipal Courts http://bit.ly/localschedules Local Schedule LC

. Retention Schedule for Records of Justice and Municipal Courts • Part 1: Civil and Criminal Records • Part 2: Inquest Records • Part 3: Vital Statistics Records • Part 4: Miscellaneous Records • Part 5: Juvenile Records http://bit.ly/schedulelc

Record Series

n: A grouping of records that all serve the same function and are all kept the same length of time. Employment Application

Cover Application Résumé Transcripts Letters of letter form reference

Retention Period n: The minimum length of time you must keep a record. 2 years

Employment Applications

Application RésuméCover Transcripts Letters of form letter reference How to read a records series

Minimum amount Statutes and other What of time you have notes about TSLAC calls The scope of to keep these retention added Unique # this series. the series. records. by TSLAC.

Record Record Title Record Description Retention Remarks Number Period

LC2350-05 PARKING AND Parking or pedestrian 6 months. Retention Note: It is an PEDESTRIAN violation tickets that exception to the 6-month VIOLATION have been cleared by retention period that if the TICKETS payment, dismissal, or tickets are used as vouchers other action. for direct posting to receipt journals or ledgers, the tickets must be retained for FE + 3 years.

LET’S WORK TOGETHER Records Analysis Exercise

DISPOSITION When it’s time to make space! Disposition of Records

. Actions taken with regard to government records

. Disposition Destruction

. Disposition is a comprehensive term that includes both destruction and transfer of government records to archival institutions.

http://www.archives.gov/records‐mgmt/faqs/scheduling.html#disposition

Types of Disposition

Archival Transfer Destruction

Transfer to Archives

. Section 203.049. Transfer of Records of Permanent Value. (b) Transfers of permanent records to another local government require the prior approval of the director and librarian. (c) In a transfer of permanent records under this section, title and control of the records and all rights pertaining to the records granted by law to the original custodian or elected county officer are vested in the commission or the local government that receives the records. Destruction: Paper Records

. Confidential records o Shredding o Pulping o Burning . Open records o Recycling o Landfills

When to destroy the paper?

. Short Term Records (0-10 Years Retention) • If the source document is destroyed, must retain the necessary record, hardware, and software

Local Government Code § 205.008(c)

When to destroy the paper?

. Long-term records (10+ Years Retention) • Source documents may be destroyed…

(If you have an approved Declaration of Compliance or Records Control Schedule on file with TSLAC) When to destroy the paper?

. Long-term records (10+ Years Retention) – …but: •Adequate technical documentation is kept (Sec. 7.73 for data files, Sec. 7.74 • Bulletin B rules apply for text documents, Sec. 7.77 for – Adequate technical electronic records in general) •You have an electronic records documentation security program (Sec. 7.75) •Storage media is maintained in the – Electronic records security right environmental conditions, is being program recopied on a set schedule, and is labeled with all required – Storage media maintained in information (Sec. 7.76) •The scanning conforms to ANSI/AIIM right conditions, recopied, standards and is done at the right labeled resolution (Sec. 7.76) •A visual quality control check is – Scanning conforms to performed on every document (Sec. ANSI/AIIM standards 7.76) •The recordkeeping system that holds – Visual check performed the records does not provide an impediment to public access (Sec. 7.79)

When to destroy the paper?

. For short-term and non- archival records: before destroying source document: . Check with all affected parties . Legal requirement? . Auditing requirement: can authenticity be guaranteed?

When to destroy the paper?

. General Recommendation: • Consider retaining source document for any record series with a retention period of 10+ years Destruction: Microforms

. Bulletin A: Microfilming Standards and Procedures • http://bit.ly/bulletina

. Free Webinar: • http://bit.ly/Microfilmwebinar

Destruction Holds

LGC §202.002 Litigation and Open Records Requests . Litigation . Public Information Request . Audit . Claim . Negotiation

STORAGE STANDARDS Records Storage Standards

. Texas Administrative Code – 13 TAC Chapter 7 Subchapter F . Minimum conditions . Optional enhanced conditions

. http://bit.ly/bulletinf

General

. Pre-1951 court records and permanent records . Do not apply to records being transported, temporarily housed or displayed, or in active use . Apply only to paper records

Minimum Conditions

. Provide protection . No direct sunlight . Not in contact with the floor . Construction after April 2015 • Operational fire detection or compliance with local fire codes • No basements Optional Enhanced Conditions

. Operational fire suppression system . Adequate environmental controls . Pest management program . Appropriate shelving

MANAGING ELECTRONIC RECORDS

What is an electronic record?

. Machine readable . Two ways it’s created: • Born digital • Digitized What is metadata?

. It’s part of the electronic record • Information about the e-record • Stays with record • Created by systems or people

Data Metadata

What is “public information”?

Amended by the 83rd Legislature (2013)

Texas Government Code, § 552.002 (Texas Public Information Act)

Instant Messages

. Case study: School district HR director Retaining Communications

. Some common series: Record Series Minimum Retention Period GR1000‐26a: Correspondence – 4 years + review for historical Administrative value GR1000‐26b: Correspondence – General 2 years GR1000‐26c: Correspondence –Routine AV GR1000‐24: Complaints Resolution +2 years GR1000‐34. Public Information Act Fulfilled + 1 year, or Requests Denied + 2 years Program‐ or task‐specific record series Variable

Transitory Information

. Temporary usefulness in completing an action . Not essential to documenting business . Not essential to fulfilling statutory obligations . Not regularly filed within your office’s recordkeeping system . Examples: • Outlook meeting reminder • Telephone message email • “Where are you?” text

What’s the retention period?

A. AV B. 2 years C. 4 years + review D. N/A – Not a record What’s the retention period?

A. AV B. Fulfilled + 1 year C. Resolution + 2 years D. N/A – Not a record

What’s the retention period?

A. Resolution + 2 years B. Fulfilled + 1 year C. AV D. N/A – Not a record

Bulletin B

Local Government Code Chapter 205 (Statutes)

13 TAC §§ 7.71-7.79 (TSLAC Rules) http://bit.ly/bulletinb Subscribe to The Texas Record for rule updates Bulletin B Sections

. § 7.71: Definitions . § 7.72: General . § 7.73-4: Creation . § 7.75: Security . § 7.76: Maintenance . § 7.77: Retention . § 7.78: Destruction . § 7.79: Public Access

Bulletin B Applicability

• Local Government rules:

13 TAC § 7.72(a)

What does Bulletin B say?

“Local governments must ensure that the accuracy, completeness, and accessibility of information are not lost prior to its authorized destruction date because of changing technology or media deterioration….”

13 TAC § 7.76(a) Examples of “Digital Damages”

Access Goals

Availability Readability Integrity

• Kept until •Can be •Complete retention is opened • Authentic met • Can be read • Functions •Can be adequately located

Goal 1: Availability

. The record is kept for its full retention period . Safest storage option: • Network server that gets backed up regularly • More than one physical location Goal 1: Availability

. LOCKSS and the “3 copy rule” • Data redundancy – 2-3 backup copies • Combination of cloud backup, external USB hard drive, flash drive

Goal 2: Readability

. The record can be accessed Goal 2: Readability

. The record can be accessed

Goal 2: Readability

. The record can be accessed . The record can be read Goal 3: Integrity

. Functionality: do you need a record to function the same way it did when it was created?

Goal 3: Integrity

. Also referred to as “authenticity” . Record is what it purports to be . Record is complete . Record may have audit trails INFORMATION RETRIEVAL

What is Information Retrieval?

. The act of locating and obtaining specific information A) Food B) Circular Things

C) Italian Things

How would you classify this?

A. House B. Boat

How would you classify this?

A. Stuffed Animal B. Blanket How would you classify this?

A. Sci-fi B. Mystery C. Drama

COMMON ORGANIZATION PROBLEMS

No Naming System

Which file contains the meeting minutes from October 12, 2005?

. Be descriptive . Create a labeling system that works for your office . Keep retention schedule in mind Bad Naming System

Which naming system works better?

vs.

. Establish file and folder naming conventions

Folder Naming

When naming folders: . Use record series titles, item numbers, retention periods . Use common acronyms/abbreviations . Be specific . Be consistent!

Can’t Decide Where to File

. Centralize records of common interest . Create shortcuts: cross-references for the other logical locations

Shortcut to another location Running out of space

. Purge unneeded copies . Purge records that have met retention . Request additional server storage space

Different Retention Periods in the Same Folder

. Create separate subfolders for different retention periods

RMA Folder Structure – Before

Orphaned RMA File Plan – After

Let’s get this out of the way…

When you ask:

How long do I keep my email?

We will tell you: . Email is a format for a record, not a type of record. . You must determine the retention by analyzing the content of the email When are email messages records?

GOVERNMENT RECORD: Communication sent or received in transaction of public business

. Same criteria as paper records . Sent on personal devices or in personal accounts regarding government business

The Record Copy

. Custodian: The person who has the record copy, which needs to be preserved for the full retention period

. Sender copy is typically the record copy • Sender is custodian of record copy

. Recipient copy is also a record if: • You need to take action based on message • Message required for adequate documentation of action What should you keep?

. Develop a system • Make it a habit . 3-step drill: “What Do I Need To Keep” • Guide to determining which emails to retain

Is this a Is this related Am I the record? to my job? custodian?

Step 1: Is the email a record?

Emails that are NOT records: . Personal email • Tip: Organize messages by sender to quickly identify personal messages

. CC’s • It’s someone else’s responsibility

Step 1: Is the email a record?

Emails that are NOT records: . Unsolicited email • Vendor ads, news articles, non-work related e-mail from coworkers

. Convenience copies • The record copy is retained elsewhere

. Spam Step 2: Is it related to your job?

Is the content of the email directly related to your responsibilities as a government employee? . If no, delete or forward

. If yes…

Step 3: Are you the custodian?

Are you the designated person in your organization responsible for maintaining records related to this subject? . If no, forward and delete your copy . If yes…

Keep the email.

This email is the official record copy and you must retain it according to your approved records retention schedule Where do I even start?

. DON’T tackle your entire inbox at once – take small steps! . Devote 5-10 minutes per day . Make it habitual

Identify YOUR Records

. Number of records on retention schedule can be overwhelming

. Identify only the records that apply to you • What types of email do you send? • What types of email do you receive?

. Easy to use – generally not more than 10 records series

Identify YOUR Records

. Think about what your job functions are • Government Information Analyst functions: . Training . Consulting . Schedule Development

. Ask yourself: • “Is this email related to my job functions?” Main Categories of Email Records

. Correspondence • Administrative • General • Routine/transitory

. Records related to your specific responsibilities (Program Records)

When are emails NOT correspondence?

Records, but not correspondence Non-records . Leave requests . Copies . Reports . Reference material . Working papers . Spam . Meeting minutes or agendas . Listserv emails . Work assignments or schedules . Job applications . Transitory information

Correspondence

. Administrative –4 years • GR1000-26a . General –2 years • GR1000-26b . Routine/Transitory – AV (purpose has been fulfilled) • GR1000-26c Program Records

. Related to your specific job responsibilities . Examples: • Complaints • Directives • Public Information Requests • Property Appraisal Records

Email File Plan example

Summary:

 Laws, rules, and definitions  Compliance  Retention Schedules  Disposition & Storage  Managing e-records Training https://www.tsl.texas.gov/slrm/training

Recent webinars: . Storage and Preservation of Paper Records . Digital Preservation . Email Management . Retention 101

Questions?

. Ask An Analyst • 512-463-7610 or Find Your Analyst: https://www.tsl.texas.gov/slrm/local/countylist.html • [email protected] . Stay Connected • The Texas Record Blog: https://www.tsl.texas.gov/slrm/blog/ Your Relationship with Community Service Presented by: Tracie Glaeser, CMCC, CCM TMCEC Program Coordinator

Overview

O Community Service O Past, Present and Future O Legal Requirements O Orders, Process and Tools O Qualified Agencies & Problem Offenders O Creative Service Options-Brainstorm

Community Service Comes in FOUR Flavors

O A means for defendant to discharge fine and costs (Note: Community Service is as good as $$$) O A mandatory remedial measure (status offenses involving juveniles: MIP, DUI, MIC, Tobacco, etc.) O A reasonable condition of deferred disposition (Art. 45.051(b)(10) CCP) O A means for defendant under age 17 to discharge fines and costs (45.0492)

10/14/2016 1 Past..Present..Future O Past O no reporting to OCA O no guidance specific to municipal court (pre-CCP45) O Present O media awareness & planning for the next unfunded mandate O Future O may become one of the most important issues in the next 5 years

On the OCA Record

When & How Art. 45.049 CCP O May require Community Service O Unable to pay O Failed to pay O All or Part O A written order is required O Hours ordered O May pay at any time to discharge the “Community Service” obligation

10/14/2016 2 Application of Hours Art. 45.049 CCP O Not less than $50 for each 8 hours worked O minimum CS wage-$6.25 ph. O what is your hourly rate? O No more than 16 hours per week O or two 8hr days of work O what is your work day rate?(1 hr. per day?)

Use a Calculator!

Where Art. 45.049(c) CCP O Only for (a) governmental entity or (b) non profit organization O provides service to general public O enhances social welfare O well being of community O Must accept defendant O Agree to supervise O Report work to court

10/14/2016 3 Find Non Profits!

http://501c3lookup.org/Texas/

This link will help you find non profits in your area Let’s test it out!

Liability ‐Art. 45.049 CCP

O Not Liable for damages related to labor performed by defendant under this article O sheriff/employees - O commissioner/county employees O county Judge/Justice of the Peace

Liability ‐Art. 45.049 CCP

O Not Liable Continued… O municipal judge O officer/employee of other political subdivision O Well…unless it was reckless disregard for the safety of others!!!

10/14/2016 4 Monitor & Verify

Reporting Requirements Only OCA, correct? O Requires # cases satisfied by partial & total community service O Why is this a problem? O Be prepared - create a report that shows O # cases ordered for CS O $ ordered for CS O # cases complete by CS O $ complete by CS

Exercise O What is your current process O What you might change O How do defendants apply for CS? O What will your “Best Practices” be? O What are the steps of your CS process?

10/14/2016 5

CASE NUMBER: «CASE_NBR» CITATION NUMBER: «TICNUM»-«VIOL»-«OCCUR»

STATE OF TEXAS § IN THE MUNICIPAL COURT VS. § CITY OF LEWISVILLE «FName» «MName» «LName» § DENTON COUNTY, TEXAS «Name_Suffi» COMMUNITY SERVICE ORDER

ON «Judged_Dt» the Defendant in the above styled and numbered case personally appeared and, having been found guilty by the Court, was assessed a fine and costs in this case in the amount of $«Balance». The Court, having determined that the Defendant has insufficient resources to pay said fine and costs, hereby ORDERS the Defendant to discharge the (entire) (remaining) balance of the fine and costs owed in this case by performing community service as follows:

The Defendant shall complete a total of _____ hours of community service for a governmental entity or nonprofit organization that provides services to the general public that enhance the social welfare and general well-being of the community and shall submit proof of completion of said hours to the Court no later than

4:00 p.m. on ______, 20____.

The Court herby finds that performing more than sixteen (16) hours of community service per week (will) (will not) work a hardship on the Defendant. The Defendant shall be considered to have discharged $75.00 of fines or costs for each eight (8) hours of community service performed.

The Defendant has been admonished that failure to perform the community service hours hereby Ordered within the time period designated is a violation of this order and is grounds to hold the Defendant in Contempt of Court which may result in the Defendant’s incarceration.

Signed on October 13, 2016 ______Judge Presiding

DEFENDANT’S PROMISE TO APPEAR

“I understand that I must present proof of compliance with the Court’s Order of Community Service to the Lewisville Municipal Court Clerk no later than the date ordered above. If I fail to present said proof as ordered, I promise to appear before the Court at «Trial_Tm» on ______, 20___ to show cause why I failed to comply with the Court’s order. I understand that if I fail to present proof of compliance or fail to appear as promised, a Capias Pro Fine for my arrest may be issued and additional fees may be assessed against me.”

Witness my hand on October 13, 2016. ______Defendant

DRESS CODE IN EFFECT: No person wearing shorts, halter tops, bathing suits or immodest, offensive or revealing clothing will be allowed to enter the courtroom. All persons are subject to search. No chewing gum, food or drinks are allowed in the courtroom.

Revised 10/22/14 10/14/2016 6 CASE NUMBER: «CASE_NBR» CITATION NUMBER: «TICNUM»-«VIOL»-«OCCUR»

STATE OF TEXAS § IN THE MUNICIPAL COURT VS. § CITY OF LEWISVILLE «FName» «MName» «LName» § DENTON COUNTY, TEXAS «Name_Suffi»

DEFENDANT’S ACKNOWLEDGEMENT OF CONDITIONS OF COMMUNITY SERVICE

“By my signature below, I understand that I must complete all assigned community service hours before the due date ordered by the court. I further understand that if I commit any violation of the law while performing community service or if I fail to comply with any reasonable rule or regulation imposed by the individual service agency for whom I am working, including tardiness or absence from scheduled performance times, I may be prohibited from continuing/completing the service hours with the designated agency. If I am removed from a community service agency for any of the above reasons, I understand that I will be responsible to pay the outstanding fine and costs immediately and if I fail to pay, a capias pro fine will be issued for my arrest. I hereby authorize the agency for which I perform community service to release to the Lewisville Municipal Court information about my service sufficient to verify completion of the hours ordered by the court”.

October 13, 2016 Signature of Participant Date

WAIVER AND RELEASE

“As a participant in community service for the City of Lewisville, I understand that I have been permitted to complete community service hours in lieu of paying monetary fine(s) and costs which were imposed by the Lewisville Municipal Court and which are sought or ordered in accordance with Article 45.049, C.C.P. and the laws of the State of Texas. My activity in this regard will involve participation in a community serve program, agency or activity.

“On behalf of myself, my heirs and assigns and my personal representatives and/or executors, I hereby release, discharge, indemnify and hold harmless, individually and jointly, the community service agency, its agents, officers, directors, representatives and employees, and the City of Lewisville, Texas, its agents, officers, representatives and employees, from and against any and all claims, demands, actions, causes of action, liabilities, damages, personal injuries, including death and property damage or loss, or loss of any kind, nature of cause, including costs and attorneys fees, in connection with or arising out of my participation and/or performance of community service.”

October 13, 2016 Signature of Participant Date

Revised 10/22/14 10/14/2016 7 CASE NUMBER: «CASE_NBR» CITATION NUMBER: «TICNUM»-«VIOL»-«OCCUR»

STATE OF TEXAS § IN THE MUNICIPAL COURT VS. § CITY OF LEWISVILLE «FName» «MName» «LName» § DENTON COUNTY, TEXAS «Name_Suffi»

COMMUNITY SERVICE TIME SHEET

While performing community service, you shall comply with the following conditions:

 Contact the service provider within 7 days of  Never accept tips or cash from anyone in this Order to arrange community service; association with the community service;  Arrive on time and obey the site supervisor;  Do not leave the worksite without permission;  Do not carry any sort of weapon;  Do not use abusive or obscene language;  Do not deliberately destroy or deface any  Timely request an extension of time to complete property or valuable thing of the agency; community service, if needed;  Wear appropriate clothing to work;  Contact the Municipal Court with any questions.

Defendant shall complete hours of community service no later than

______.

The above listed rules are part of this Community Service Order and failure to comply with any of these rules may result in removal from community service, the denial of credit for any service hours performed, a warrant being issued for your arrest and/or incarceration for failure to comply with a court order

“Proof of Compliance” must meet the following requirements

1. Typed-written letter from the agency where the service was performed establishing it as a government entity or non-profit organization; 2. Signed by authorized personnel and accompanied by a telephone number to verify service hours; 3. Including the dates of service, hours served, and a brief description of the service performed; 4. Submitted to the Court no later than the date indicated above.

If you have questions or problems, please contact the Lewisville Municipal Court Clerk’s office between 7:30 a.m. and 4:00 pm Monday through Friday at (972) 219-3671.

WARNING! Filing false information with the Court is a Class A Misdemeanor punishable by up to one year in jail, a maximum fine up to $4,000, or both. Any attempt to commit fraud by submitting false information to the Court will be referred to the Denton County District Attorney’s Office for criminal prosecution

Revised 10/22/14 10/14/2016 8 LEWISVILLE MUNICIPAL COURT APPROVED COMMUNITY SERVICE AGENCIES

Agency Agency Duties Offenses Not Hours most likely Available Description Accepted Lewisville Parks Department Park Work with Accepts all Seven days a week, Parks Maintenance Maintenance park crew offenses 7:00 a.m. until 3:30 p.m. 325 Treatment Plant Rd. maintaining ***An orientation session Lewisville, TX parks required prior to acceptance (972) 219-3550 and authorization to begin Lewisville Public Library Library Various No Theft Cases Weekends & after school 1197 W. Main St., Lewisville, TX Minimum # of Must pass a screening quiz (972) 219-3574 hours: 20 before hours are scheduled Lewisville Recreation Center Recreational Various as Check with Special events as needed 2 locations in Lewisville Center/Activities needed agency (972) 219-5064 Enjoy working with children (CCA) Christian Community Action Food Various Accepts all Call for information 200 S. Mill St. Pantry/Resale Offenses Lewisville (972) 219-4300 or 4301 [email protected] Assistance for Sorting Accepts all Mon-Friday The Salvation Army those in need donations, Offenses 8:00 – 12:00 Michael Raven light office, Saturday 207 Elm St., Lewisville, TX 75057 pantry 1:00-4:30 (972) 353-9400 ext. 202 Goodwill Industries Assistance for Resale store Check with Call for information 919 W. Main those in need agency Lewisville (972) 436-3181 or 214-638-2800 ext. 241 Humane Society of Lewisville Animal Animal care Accepts all 1st & 3rd Sat. of month at (972) 353-4840 protection & Offenses Adopt-a-Pets advocacy Spirit Horse Therapeutic Therapeutic Stable Accepts all Call for information Riding Center horseback riding cleaning, Offenses 1960 Post Oak Drive services animal care, Corinth, Texas 76210 call for more (940) 497-2946 information Advocacy & Pregnancy Center Crisis Pregnancy Clerical, No Theft Cases Mon. 10-6, Tue-Wed 10-6, 817 S. Mill St. #112 Center sorting Thur. 12-6, Fri-Sat 10-2 Lewisville clothing (972) 436-2273 Call for information

Revised 10/22/14 10/14/2016 9 Agency Agency Duties Offenses Not Hours most likely Available Description Accepted Camp Summit Outdoor camp Work No Assault Mon-Fri 9 a.m. to 5 p.m. 921 Copper Canyon Rd., Argyle, TX for people with depending Offenses Weekends 9 a.m. to 5 p.m. (972) 484-8900 ext. 102 disabilities on staff Call for appointment availability Denton County Children’s Non-profit Mostly help Accepts all Mon-Fri 8:00 am to 5:00 p.m. Advocacy Center (DCCAC) agency for child with special Offenses 1960 Archer Ave., Lewisville, TX abuse victims projects Call for Appointment (972) 317-2818 Denton County Mental Health Mental Health Assisting Accepts all Mon-Fri 8:00 am to 5:00 pm & Mental Retardation (MHMR) Clinic therapists, Offenses Offices in Lewisville and Denton light Call for Appointment (940) 565-5282 clerical, arts & crafts Denton County Habitat for Home building Light No Assault Call for information Humanity for low-income construction, offenses (940) 484-5006 families/work in clean-up Resale Stores Keep Lewisville Beautiful Association for Call for No Theft or Call for information 189 Elm Street #106 beautification of information Drug offenses Lewisville, TX Lewisville (972) 436-5100 info@keeplewisville beautiful.org Lewisville Senior Center Center for Senior Assist in No Theft or Depends on events scheduled 1950 S. Valley Pkwy. citizens setting up Assault Call for information Lewisville for special (972) 219-5051 events

Revised 10/22/14 10/14/2016 10 Art. 45.049. COMMUNITY SERVICE IN SATISFACTION OF FINE OR COSTS. (a) A justice or judge may require a defendant who fails to pay a previously assessed fine or costs, or who is determined by the court to have insufficient resources or income to pay a fine or costs, to discharge all or part of the fine or costs by performing community service. A defendant may discharge an obligation to perform community service under this article by paying at any time the fine and costs assessed. (b) In the justice's or judge's order requiring a defendant to participate in community service work under this article, the justice or judge must specify the number of hours the defendant is required to work. (c) The justice or judge may order the defendant to perform community service work under this article only for a governmental entity or a nonprofit organization that provides services to the general public that enhance social welfare and the general well-being of the community. A governmental entity or nonprofit organization that accepts a defendant under this article to perform community service must agree to supervise the defendant in the performance of the defendant's work and report on the defendant's work to the justice or judge who ordered the community service. (d) A justice or judge may not order a defendant to perform more than 16 hours per week of community service under this article unless the justice or judge determines that requiring the defendant to work additional hours does not work a hardship on the defendant or the defendant's dependents. (e) A defendant is considered to have discharged not less than $50 of fines or costs for each eight hours of community service performed under this article. (f) A sheriff, employee of a sheriff's department, county commissioner, county employee, county judge, justice of the peace, municipal court judge, or officer or employee of a political subdivision other than a county is not liable for damages arising from an act or failure to act in connection with

10/14/2016 11 manual labor performed by a defendant under this article if the act or failure to act: (1) was performed pursuant to court order; and (2) was not intentional, wilfully or wantonly negligent, or performed with conscious indifference or reckless disregard for the safety of others. (g) This subsection applies only to a defendant who is charged with a traffic offense or an offense under Section 106.05, Alcoholic Beverage Code, and is a resident of this state. If under Article 45.051(b)(10), Code of Criminal Procedure, the judge requires the defendant to perform community service as a condition of the deferral, the defendant is entitled to elect whether to perform the required governmental entity or nonprofit organization community service in: (1) the county in which the court is located; or (2) the county in which the defendant resides, but only if the entity or organization agrees to: (A) supervise the defendant in the performance of the defendant's community service work; and (B) report to the court on the defendant's community service work. (h) This subsection applies only to a defendant charged with an offense under Section 106.05, Alcoholic Beverage Code, who, under Subsection (g), elects to perform the required community service in the county in which the defendant resides. The community service must comply with Sections 106.071(d) and (e), Alcoholic Beverage Code, except that if the educational programs or services described by Section 106.071(e) are not available in the county of the defendant's residence, the court may order community service that it considers appropriate for rehabilitative purposes. (i) A community supervision and corrections department or a court-related services office may provide the administrative and other services necessary for supervision of a defendant required to perform community service under this article.

10/14/2016 12 Added by Acts 1993, 73rd Leg., ch. 298, Sec. 1, eff. May 27, 1993. Renumbered from Vernon's Ann.C.C.P. art. 45.521 and amended by Acts 1999, 76th Leg., ch. 1545, Sec. 49, eff. Sept. 1, 1999; Subsec. (e) amended by Acts 2003, 78th Leg., ch. 209, Sec. 66(a), eff. Jan. 1, 2004. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1113 (H.B. 3692), Sec. 5. Acts 2007, 80th Leg., R.S., Ch. 1263 (H.B. 3060), Sec. 17, eff. September 1, 2007. Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 27.001(2), eff. September 1, 2009.

Art. 45.0491. WAIVER OF PAYMENT OF FINES AND COSTS FOR INDIGENT DEFENDANTS AND CHILDREN. A municipal court, regardless of whether the court is a court of record, or a justice court may waive payment of a fine or costs imposed on a defendant who defaults in payment if the court determines that: (1) the defendant is indigent or was, at the time the offense was committed, a child as defined by Article 45.058(h); and (2) discharging the fine and costs under Article 45.049 or as otherwise authorized by this chapter would impose an undue hardship on the defendant.

Added by Acts 2007, 80th Leg., R.S., Ch. 1263 (H.B. 3060), Sec. 18, eff. September 1, 2007. Amended by: Acts 2013, 83rd Leg., R.S., Ch. 1320 (S.B. 395), Sec. 4, eff. September 1, 2013. Acts 2013, 83rd Leg., R.S., Ch. 1407 (S.B. 393), Sec. 6, eff. September 1, 2013.

Text of article as added by Acts 2011, 82nd Leg., R.S., Ch. 227 (H.B. 350), Sec. 1

10/14/2016 13 For text of article as added by Acts 2011, 82nd Leg., R.S., Ch. 777 (H.B. 1964), Sec. 1, see other Art. 45.0492.

Art. 45.0492. COMMUNITY SERVICE OR TUTORING IN SATISFACTION OF FINE OR COSTS FOR CERTAIN JUVENILE DEFENDANTS. (a) This article applies only to a defendant younger than 17 years of age who is assessed a fine or costs for a Class C misdemeanor occurring in a building or on the grounds of the primary or secondary school at which the defendant was enrolled at the time of the offense. (b) A justice or judge may require a defendant described by Subsection (a) to discharge all or part of the fine or costs by performing community service or attending a tutoring program that is satisfactory to the court. A defendant may discharge an obligation to perform community service or attend a tutoring program under this article by paying at any time the fine and costs assessed. (c) In the justice's or judge's order requiring a defendant to participate in community service work or a tutoring program under this article, the justice or judge must specify the number of hours the defendant is required to work or attend tutoring. (d) The justice or judge may order the defendant to perform community service work under this article only for a governmental entity or a nonprofit organization that provides services to the general public that enhance social welfare and the general well-being of the community. A governmental entity or nonprofit organization that accepts a defendant under this article to perform community service must agree to supervise the defendant in the performance of the defendant's work and report on the defendant's work to the justice or judge who ordered the community service. (e) A tutoring program that accepts a defendant under this article must agree to supervise the defendant in the attendance of the tutoring program and report on the defendant's work to the justice or judge who ordered the tutoring.

10/14/2016 14 (f) A justice or judge may not order a defendant to perform more than 16 hours of community service per week or attend more than 16 hours of tutoring per week under this article unless the justice or judge determines that requiring additional hours of work or tutoring does not cause a hardship on the defendant or the defendant's family. For purposes of this subsection, "family" has the meaning assigned by Section 71.003, Family Code. (g) A defendant is considered to have discharged not less than $50 of fines or costs for each eight hours of community service performed or tutoring program attended under this article. (h) A sheriff, employee of a sheriff's department, county commissioner, county employee, county judge, justice of the peace, municipal court judge, officer or employee of a political subdivision other than a county, nonprofit organization, or tutoring program is not liable for damages arising from an act or failure to act in connection with an activity performed by a defendant under this article if the act or failure to act: (1) was performed pursuant to court order; and (2) was not intentional, grossly negligent, or performed with conscious indifference or reckless disregard for the safety of others. (i) A local juvenile probation department or a court- related services office may provide the administrative and other services necessary for supervision of a defendant required to perform community service under this article.

Added by Acts 2011, 82nd Leg., R.S., Ch. 227 (H.B. 350), Sec. 1, eff. September 1, 2011.

Text of article as added by Acts 2011, 82nd Leg., R.S., Ch. 777 (H.B. 1964), Sec. 1

For text of article as added by Acts 2011, 82nd Leg., R.S., Ch. 227 (H.B. 350), Sec. 1, see other Art. 45.0492.

10/14/2016 15

Art. 45.0492. COMMUNITY SERVICE IN SATISFACTION OF FINE OR COSTS FOR CERTAIN JUVENILE DEFENDANTS. (a) This article applies only to a defendant younger than 17 years of age who is assessed a fine or costs for a Class C misdemeanor. (b) A justice or judge may require a defendant described by Subsection (a) to discharge all or part of the fine or costs by performing community service. A defendant may discharge an obligation to perform community service under this article by paying at any time the fine and costs assessed. (c) In the justice's or judge's order requiring a defendant to perform community service under this article, the justice or judge shall specify the number of hours of service the defendant is required to perform and may not order more than 200 hours of service. (d) The justice or judge may order the defendant to perform community service work under this article only for a governmental entity or a nonprofit organization that provides services to the general public that enhance social welfare and the general well-being of the community. A governmental entity or nonprofit organization that accepts a defendant under this article to perform community service must agree to supervise the defendant in the performance of the defendant's work and report on the defendant's work to the justice or judge who ordered the community service. (e) A justice or judge may not order a defendant to perform more than 16 hours of community service per week under this article unless the justice or judge determines that requiring additional hours of work does not cause a hardship on the defendant or the defendant's family. For purposes of this subsection, "family" has the meaning assigned by Section 71.003, Family Code. (f) A sheriff, employee of a sheriff's department, county commissioner, county employee, county judge, justice of the peace, municipal court judge, or officer or employee of a political subdivision other than a county is not liable for

10/14/2016 16 damages arising from an act or failure to act in connection with community service performed by a defendant under this article if the act or failure to act: (1) was performed pursuant to court order; and (2) was not intentional, willfully or wantonly negligent, or performed with conscious indifference or reckless disregard for the safety of others. (g) A local juvenile probation department or a court- related services office may provide the administrative and other services necessary for supervision of a defendant required to perform community service under this article.

Added by Acts 2011, 82nd Leg., R.S., Ch. 777 (H.B. 1964), Sec. 1, eff. September 1, 2011.

10/14/2016 17 Certification: This is a Test ‐ It's Only a Test! Presented by: Jennifer Bozorgnia, CMCC, CCM

Ice‐Breaker Activity

• Betty Boop • Yes! I've Done That... • If I Could Have, I Would Have • Tell Us... • Your Name • Your City • Your Experience With Program

What Is It? • A professional development program for municipal court clerks. • Designed to improve knowledge, job performance and ability to assist the court. • Comprised of three levels: • Level I • Level II • Level III Where to Start?

Level I Level II

• Download a free study guide • Download a free study guide from TMCEC (or order a from TMCEC (or order a copy). copy). • Study, Study, Study! • Study, Study, Study! • Take the Level I Exam • Take the Level II Exam • Complete 40 hours of • Complete 40 hours of education education • Submit a Level I Application • Submit a Level II Application

Then What?

Level III This is the highest level of certification. Once it's earned, the title of Certified Municipal Court Clerk (CMCC) is achieved. • Requirements: •Complete Level III Certification Exam •Complete Court Observation Journal • Attend 24‐hour Assessment Clinic • Attend 12‐hour Court Administrator Seminar •Complete additional 28 hours of training

How to Keep It?

• Once certification is achieved at any particular level, continuing education must be completed. • Continuing Education Requirements: • Level I: 12 hours/academic year • Level II: 12 hours/academic year • Level III: 20 hours/academic year • Proof of education must be provided to TMCEC for certification to be maintained. How Much Does It Cost?

TCCA Members: Non‐TCCA Members:

• Level I: $75 • Level I: $150 • Level II: $75 • Level II: $150 • Level III: $75 • Level III: $150

*Note: Retest $25/part (if applicable) *Note: Retest $50/part (if applicable)

Tools & Resources

• TMCEC – http://tmcec.com/clerk‐certification/ – http://tmcec.com/resources/clerk‐study‐guides/

• Study buddies

• Prep Sessions hosted before the testing

Tools & Resources (Cont’d)

• Online Learning Center (OLC) –Must login for access – http://online.tmcec.com/ Test Taking Strategies

Before Test Day • Complete the study guides. • Ask questions. Make sure you understand the materials, the correct answers and why. • Study! Prepare yourself and be confident in your knowledge. Utilize resources. • Don't cram the night before or the morning of the test! If you don't know it by then, go back to tip #1.

Test Taking Strategies (Cont'd.)

On the Day of the Test • Be prepared. • Know the testing location. • Bring a photo ID and pencils. • Print and bring testing confirmation. • Leave in plenty of time. • Arrive early and take a moment to relax. • Listen to proctor instruction. • Stay positive!

Test Taking Strategies (Cont'd.)

After the Test • Be patient. • Results may take up to 6 weeks. • Login to TMCEC. • Results will not be released over the phone. It's Only a Test

Questions?

Contact me: Jennifer Bozorgnia, CMCC, CCM Court Services Coordinator City of Irving [email protected] (972) 721‐3689 1

DRIVER’S LICENSE LAWS &OFFENSES

Presented by Trish Nasworthy Senior Assistant City Attorney City of Grand Prairie, Texas

Goals

• 1. you will learn how you can obtain a driver’s license • 2. the different types of licenses • 3. how you can lose you license • 3. the difference in suspension and deny renewal • 4. What is required for an occupational license

TEXAS TRANSPORTATION CODE SECTIONS

CHAPTERS 521, 522 and other relevant sections WHAT IS A DRIVER’S LICENSE?

• Sec. 521.001. DEFINITIONS.

• (a) (3) "Driver's license" means an authorization issued by the department for the operation of a motor vehicle. The term includes:

• (A) a temporary license or instruction permit; and • (B) an occupational license

(a)(6) "License" means an authorization to operate a motor vehicle that is issued under or granted by the laws of this state. The term includes:

(A) a driver's license;

(B) the privilege of a person to operate a motor vehicle regardless of whether the person holds a driver's license; and

6 Types of driver’s licenses you may encounter

• Instruction permit- student driver • Under 21 • DL under 18 yoa, annual renewal • Classes of Driver’s Licenses • Class C & M; • Class A & B; • Commercial DL 7

TEMPORARY VISITOR

• Issued upon proof of lawful presence in U.S. • Limited term designation • Expires when lawful presence expires • Designated as “Temporary Visitor Status Expires . . .” • A new card with the Limited Term designation will be issued upon renewal

TEMPORARY VISITOR 9

Under 25

• Must successfully complete an approved driver education course either through the school system or private • OR • Parent taught program

TEMPORARY VISITOR UNDER 21 11

UNDER 21

• Phase One – applies to Learner’s Permit • 6 months • Must be accompanied by LOFS 21 yoa w/ at least 1 yr experience • Phase Two – applies to Provisional • Under 17 yoa • No more than 1 passenger under 21 yoa (family members ok) • Parent/guardian must be “in sight” if between midnight to 5 am exception is work or job related • No wireless communication device, except emergency • Restriction should state “TRC 545.424 applies until MM/DD/YY” • Annual renewal w/proof of school attendance or GED • Under 21

UNDER 21 13

Provisional DL 14 OTHER TYPES OF DRIVING PRIVILEGES

• DIC 24 – Statutory warning incident to DWI • Authorizes 40 days of driving privileges when DL is confiscated • May be longer if DL suspension is appealed • Privilege is stated on the DIC 24 form

• Occupational • Order from court must be carried on the person • Order designates limitations • Keep a log • Only drive in certain counties

EXEMPTIONS

• Military personnel while operating an official motor vehicle in the scope of service • Operating a road machine, farm tractor, or implement of husbandry on a highway (does not apply to a commercial motor vehicle) • Licensed (U.S. or Canada) nonresident on active duty in the armed forces • Licensed (U.S. or Canada) spouse or dependant child of licensed nonresident military personnel 16

RESIDENT VS NONRESIDENT

• Resident – physically resides in Texas at a specified location • Not DOMICILE • Nonresident – “not a resident of this state”

• Officer recommended question • Is this the address where you live full-time?

17 OUT-OF-STATE DRIVER’S LICENSE (VISITORS) • 16 yoa or older • Possession of DL w/ Class C or M • 18 yoa or older • Possession of DL w/ Class A or B (commercial DL) • Issued by their state of residence or Canada • Operating the type of vehicle their DL permits

Tex. Trans. Code § 521.030(a) & (b) 18

NEW RESIDENTS

• May use DL from prior state of residence for up to 90 days • After 90 days must have a Texas DL • Prosecution should allege “resided in this state for more than 90 days” • Defense is then required to prove by preponderance of the evidence that residence was less than 90 days

Tex. Trans. Code § 521.029 19

VIOLATIONS

• NO DRIVER’S LICENSE • Operate motor vehicle on a highway in this state (unless exempted) • Does not possess a driver’s license issued by this state (or another jurisdiction) • Issue is the existence of a DL not whether it is valid (different issue) • Tex. Trans. Code § 521.021

• NO TEXAS DRIVER’S LICENSE • Operate motor vehicle on a highway in this state (unless exempted) • Does not possess a driver’s license issued by this state (or another jurisdiction) • Prosecution should allege “resided in this state for more than 90 days” • Defense is then required to prove by preponderance of the evidence that residence was less than 90 days • Tex. Trans. Code § 521.029

Fail to Display DL

• A person required to hold a TEXAS DL • Have in possession while operating • Display upon demand • 1st offense - $1 - $200 • 2nd offense $25 - $500 • 3rd offense $25 - $500 OR 3 days in jail OR BOTH • Judge to report conviction to the department • If shown at trial the person caused or was at in an ACCIDENT that results in serious bodily injury or death AND no proof of Financial Responsibility • Class A • Defense if produces in Court a driver’s License valid at the time of the offense • COURT may assess $10 administrative fee for dismissal • DOES NOT APPLY TO OUT-OF-STATE DL- therefore dismissal fee does not apply Tex. Trans. Code § 521.025 21

EXPIRED DRIVER’S LICENSE

• Had a Texas Driver’s License • Operates a motor vehicle upon a highway • DL has expired • JUDGE may dismiss if DL renewed • within 20 working days of offense or • before defendant’s 1st court appearance, whichever is later • JUDGE may assess $20 administrative dismissal fee Tex. Trans. Code 521.026 22 FAILURE TO REPORT ADDRESS CHANGE • Has Texas DL or ID card • Changes address of residence or name • Fails to report/submit request for change to TxDPS • WITHIN 30 DAYS OF CHANGE • COURT may dismiss with administrative fee of $20 • If corrected within 20 working days of offense • COURT may also waive if in interest of justice

Tex. Trans. Code § 521.054 23 24 DL RESTRICTION/ENDORSEMENT VIOLATIONS • Possesses a Texas DL • Which has a restriction/endorsement requirement on the DL • Operating a vehicle on a highway contrary to the stated restriction or endorsement • COURT may dismiss with a $10 administrative fee if • Restriction/endorsement removed because medically/surgically corrected before offense • DPS removes requirement before first appearance

Tex. Trans. Code § 521.221 25

DL RESTRICTION/ENDORSEMENT

• RESTRICTION CODE • ENDORSEMENT CODE • A With corrective lenses • B LOFS age 21 or over • H Hazardous materials - CDL only • C Daytime only • • D Not to exceed 45 MPH N Tank vehicle - CDL only • E No expressway driving • P Passenger - CDL only • I M/C not to exceed 250 cc • J Licensed M/C Operator age 21 or over in sight • S School Bus - CDL only • K Moped • T Double/triple trailer (CDL and • L Vehicle w/o air brakes - applies to vehicles requiring CDL non CDL) • M CDL Intrastate Commerce only • X Combination of hazardous • P Stated on license • Q LOFS 21 or over vehicle above Class B materials and tank vehicle - CDL • R LOFS 21 or over vehicle above Class C only • S Outside mirror or hearing aid • T Automatic transmission • U Applicable prosthetic devices • V Applicable vehicle devices • WPower steering 26

DRIVING WHILE LICENSE INVALID

• Operate motor vehicle on highway • DL has been cancelled • DL or Privilege is suspended or revoked • DL expired during period of suspension • DL denied renewal and no subsequent DL issued

Tex. Trans. Code § 521.457

27 DWLI – Types of suspensions

• ALR SUSPENSIONS • MANDATORY SUSPENSIONS • FAIL TO PAY SURCHARGE SUSPENSIONS • UNDER 21 ALCOHOL BEVERAGE CODE

DWLI

• Notice of Suspension • Not a defense if not received and reason for suspension is because • Criminal negligent homicide because of criminal negligent operation of a motor vehicle • Evading arrest or detention and used motor vehicle in the commission of offense • DWI, DWI w/child passenger, Intoxication Manslaughter • Intoxication Assault and used motor vehicle in commission of offense • Felony offense of a motor vehicle law • Accident involving injury or death • Offense under § 521.451 as it relates to fictitious DL or ID • Offense under § 521.453 as it relates to under 21 fictitious DL or ID • Manslaughter and used a motor vehicle in commission of offense

DWLI

• Notice of Suspension • Affirmative defense if did not receive ACTUAL notice • ACTUAL notice is presumed if the notice was mailed in accordance with law • Tex. Trans. Code § 521.457

DWLI

• § 521.292. Department’s Determination for License Suspension • Drive while DL suspended, canceled, disqualified, revoked or application denied • Habitually reckless or negligent driving • Habitual violator (4 or more w/in 12 mos, 7 or more w/in 24 mos) • Permitted unlawful or fraudulent use of DL • Violation in another jurisdiction that would get DL suspended in Texas • Convicted of 2 or more “restriction” offenses • Responsible for accident resulting in serious bodily injury or serious property damage • Holds “Provisional” license and has conviction for 2 or more moving violations within 12 months • Fleeing or Attempting to Elude police (§ 545;.421)

DWLI

• § 521.294. License Revocation • Generally related to safe operation of a motor vehicle, medical requirements, Failing to appear for traffic or alcohol related offense • § 521.295. Notice of Department’s Determination • Shall be sent by first class mail to the person’s address in the records of the department • Notice considered received on the 5th day after the date notice is mailed • § 521.296. Notice of Suspension • State’s basis of suspension/revocation; right to hearing; procedure and time frame

COMMERCIAL DRIVER’S LICENSE

• Effect of a conviction on CDL • 60 days disqualification • 2 serious traffic violations w/in 3 yrs OR • 1 violation at a railroad grade crossing • 120 days disqualification • 3 serious violations w/in 3 yrs OR • 2 violations at a railroad grade crossing w/in 3 yrs • Tex. Trans. Code § 522.081

CDL

• “Serious Traffic Violation” – Conviction from the DRIVING OF A MOTOR VEHICLE, other than parking, vehicle weight or vehicle defect • Excessive speeding – 15 mph or more over posted speed limit • Reckless driving • A violation that relates to a fatal accident • Improper or erratic traffic lane changes • Following too close • Violation of DL Requirements or Endorsements • Tex. Trans. Code § 522.003 • Two points will be assigned for each moving violation conviction • No points will be assigned for a conviction of speeding LESS than 10% • This is in the general DL Points Surcharge section § 708.052(d) which appears to apply to ALL DL’s • Chapter 45.051 Deferred Disposition is not applicable to CDL’s

Running stop light = $100.00 DUI = $5000.00 Not wearing a seat belt = $50.00 Putting you & your girlfriend on your fake drivers license = PRICELESS

Data Miners and Open Records

Zindia Thomas Assistant General Counsel Texas Municipal League www.tml.org

10/14/2016 1 Table of Contents

I. Municipal Court Records ...... 1 1. Are municipal court records subject to the Public Information Act? ...... 1 2. If municipal court records are not subject to the PIA, can the public get these records? . 1 3. What laws govern the request for municipal court records? ...... 1 4. What are judicial records? ...... 1 5. What is Rule 12 of the Rules of Judicial Administration? ...... 1 6. What is the Rule 12 procedure? ...... 2 7. Who is the record custodian? ...... 2 8. Can the record custodian ask the requestor why they want the judicial records? ...... 2 9. If the record custodian denies a request, what is he required to do? ...... 2 10. Can municipal courts charge for producing judicial records to a requestor under Rule 12? ...... 3 11. Are there records that Rule 12 does not apply to? ...... 3 12. Are there exemptions from disclosure of records in Rule 12? ...... 3 13. Is there an appeal’s process under Rule 12? ...... 4 14. Since court case records are exempt from Rule 12, how does the public get access to those records? ...... 5 15. What is improper purpose and who decides when a request is considered to be for an improper purpose? ...... 5 16. If the municipal court determines that the court case records should be released, will personal information contained in the court case records be released? ...... 6 17. Can the municipal court charge cost for copies of court case records? ...... 6 18. Is there an appeal process under CLRA? ...... 6 II. Public Information Act ...... 7 1. What types of information are subject to the Public Information Act? ...... 7 2. What format of records is subject to the Public Information Act? ...... 7 3. What types of entities are subject to the Public Information Act? ...... 7 4. Are court records subject to the Public Information Act? ...... 8 5. To what governmental officer must an open records request be directed? ...... 9 6. What is a governmental body’s duty to respond to e-mailed or faxed requests for copies of records? ...... 9

10/14/2016 2 7. How much time does a governmental body generally have to comply with an open records request? ...... 10 8. When is a governmental body required to ask for an open records ruling from the Attorney General? ...... 10 9. What must a governmental body do if it wants to request an Attorney General open records ruling? ...... 11 10. How long does the Attorney General have to respond to a request for an open records ruling? ...... 13 11. What inquiries can a governmental body make of an open records requestor? ...... 13 12. What is the general ability of a governmental body to charge for documents? ...... 14 13. Is a requestor allowed to sue a governmental body for failure to comply with the Public Information Act? ...... 15 14. What civil remedies can be brought against a governmental body for failure to comply with the Public Information Act?...... 15 15. What are the criminal penalties for noncompliance with the Public Information Act? .....16

10/14/2016 3 I. Municipal Court Records 1. Are municipal court records subject to the Public Information Act? No. Municipal Court records are exempt from the Public Information Act (PIA). Section 552.0035 of the Texas Government Code states that “information collected, assembled or maintained by or for the judiciary is governed by rules adopted by the Supreme Court of Texas or by other applicable laws and rules.” 2. If municipal court records are not subject to the PIA, can the public get these records? Yes. The public can still request municipal court records from the court. Just like under the PIA, the public would have to submit the request for the municipal court records in writing. 3. What laws govern the request for municipal court records? There are two different laws that govern municipal court records because there are two types of municipal court records. The first type of municipal court records are judicial records. They are covered by Rule 12 of the Rules of Judicial Administration. The second type of municipal court records are court case records. They are covered by Common Law Right of Access. 4. What are judicial records? Judicial records are the administrative records of a municipal court. Rule 12.2(d) of the Rules of Judicial Administration says judicial records “means a record made or maintained by or for a court or judicial agency in its regular course of business but not pertaining to its adjudicative function, regardless of whether that function relates to a specific case. A record of any nature created, produced, or filed in connection with any matter that is or has been before a court is not a judicial record. A record is a document, paper, letter, map, book, tape, photograph, film recording, or other material, regardless of electronic or physical form, characteristic, or means of transmission.” 5. What is Rule 12 of the Rules of Judicial Administration? Rule 12 deals with the public gaining access to judicial records. Similar to the PIA, its purpose is to provide public access to information in the judiciary consistent with the mandates of the Texas Constitution that the public interests are best served by open courts and by an independent judiciary.1 Rule 12 outlines the procedure in receiving judicial records and provides exceptions and exemptions to accessing certain judicial records.

1 Tex. R. Jud. Admin. 12.1. 1

10/14/2016 4 6. What is the Rule 12 procedure? To receive copies or inspect judicial records, the requestor must send a written request to the record custodian of the court. The request must include sufficient information to reasonably identify the record requested.2 Once the court actually receives the request for judicial records, the court, as soon as practicable, but not more than 14 days, must either: (1) provide the judicial records or allow inspection of the judicial records; (2) send a written notice to the requestor stating that the records cannot within the prescribed period be produced or a copy provided, as applicable, and setting a reasonable date and time when the document will be produced or a copy provided; or (3) deny the request because the record custodian: a. reasonably determined that the requested judicial record is exempt from the required disclosure under Rule 12; or b. makes specific, non-conclusory findings that compliance with the request would substantially and unreasonably impede the routine operation of the court.3 7. Who is the record custodian? The record custodian is either the judge in a single judge court, the presiding or chief judge in a court with more than one judge or presiding officer of a judicial agency.4 8. Can the record custodian ask the requestor why they want the judicial records? No. Like the PIA, the record custodian cannot ask why the requestor wants the judicial records. However, the record custodian can ask questions in order to establish the proper identification of the requestor or to clarify or narrow the request. The record custodian must treat all requests uniformly.5 9. If the record custodian denies a request, what is he required to do? If the record custodian denies the request, the record custodian must send a denial notice. The denial notice must be in writing and must: i. state the reason for the denial; ii. inform the person of the right of appeal; and

2 Tex. R. Jud. Admin. 12.6(a). 3 Tex. R. Jud. Admin. 12.6(b), 12.8 (a) & (b). 4 Tex. R. Jud. Admin. 12.2(e). 5 Tex. R. Jud. Admin. 12.6(g) – (h). 2

10/14/2016 5 iii. include the name and address of the Administrative Director of the Office of the Court of Administration.6 10. Can municipal courts charge for producing judicial records to a requestor under Rule 12? Yes, Rule 12.7(a) states that the cost for copies of judicial records is either (1) the cost prescribed by statute, or (2) if no statute prescribes the cost, the cost the Office of the Attorney General (OAG) prescribes in the Texas Administrative Code. There is no statute that dictates the amount that may be charged for copies by the municipal court. However, Government Code § 552.266 states “[t]he charge for providing a copy made by a municipal court clerk shall be the charge provided by municipal ordinance.” If the city has created a cost ordinance for the municipal court, then it can use that cost ordinance. However, if the city has not created a cost ordinance, the municipal court will have to follow the OAG’s Cost Rules.7 Also, the record custodian may reduce or waive the charge for judicial records if doing so is in the public interest because providing the copies would primarily benefit the general public or the cost of processing collection of a charge will exceed the amount of the charge.8 If a requestor thinks he was overcharged for copies of judicial records, the requestor can go through the same appeals process that is followed for the denial of judicial records, which is discussed later.9 11. Are there records that Rule 12 does not apply to? Yes, there are records that Rule 12 does not apply to. The two most common records are (1) court case records and (2) arrest warrants, search warrants or supporting affidavits. As discussed later, court case records are covered by Common Law Right of Access. The access to arrest warrants is covered by Article 15.26 of the Texas Code of Criminal Procedure and search warrants are covered by Article 18.10(b) of the Texas Code of Criminal Procedure. Whether the public should be given access to arrest warrants, search warrants and the supporting affidavits depends on if the warrants have been executed. An arrested warrant is executed when the arrest is made. A search warrant is executed when a search has been conducted. 12. Are there exemptions from disclosure of records in Rule 12? Yes, there are 12 exemptions from disclosure in Rule 12.10 1) Judicial work product and draft.

6 Tex. R. Jud. Admin. 12.8(c). 7 See 1 Tex. Admin. Code §§ 70.1 -70.10. 8 Tex. R. Jud. Admin. 12.7(b). 9 Tex. R. Jud. Admin. 12.7(c). 10 Tex. R. Jud. Admin. 12.5. 3

10/14/2016 6 2) Security plans. 3) Personnel information. 4) Home address and family information. 5) Applicants for employment or volunteer services. 6) Internal deliberations on court or judicial administration matters. 7) Court law library information. 8) Judicial calendar information. 9) Information confidential under other law. 10) Litigation or settlement negotiations. 11) Investigations of character or conduct. 12) Examinations. 13. Is there an appeal’s process under Rule 12? A requestor who is denied access to judicial records may appeal to the Administrative Director of the Office of Court Administration. The petition for review: 1) must include a copy of the request and notice of denial; 2) may include any supporting acts, arguments, and authorities that the petitioner believes to be relevant; and 3) may contain a request for expedited review, the grounds for which must be stated. The petition for review must be filed no later than 30 days after the date the requestor received the denial notice. The Administrative Director will notify the record custodian and the presiding judge of each administrative judicial region of the filing of the petition for review. The record custodian has 14 days from the receipt of the notice of the petition for review to submit a written response to the petition for review. If the record custodian does submit a response, he must send a copy to the requestor. Also, the record custodian must submit with the response any denied records, or sample of denied records. The presiding judges of the administrative judicial regions will refer the petition for review to a special committee of not less than five of the presiding judges. The presiding judges will notify the Administrative Director, record custodian and the requestor of the judges selected to the special committee. The special committee must review the petition and the record custodian’s response. The special committee can request, from the record custodian, the denied records or

10/14/2016 7 sample of the denied records for them to review. The record custodian may respond to the request from the special committee. The special committee will determine whether the request records should have been made available by considering (1) the text and policy of Rule 12; (2) any supporting and controverting facts, arguments, and authorities in the petition and the response; and (3) prior application of Rule 12 by other special committees or by courts. The decision by the special committee will either release some or all of the denied judicial records or sustain the denial of access to the judicial records. It will state the reasons for the decision and identify the records or portion of the records that access is ordered or denied. The decision will be issued within 60 days of the date the Administrative Director received the petition for review. Once the special committee issues its decision, it will forward the decision to the Administrative Director. The Administrative Director will notify the requestor and the record custodian of the decision and send them a copy. He will maintain a copy of the decision in his office for public inspection and must publish the decision to the judiciary and the public. The special committee’s decision is final but is subject to a mandamus review.11 14. Since court case records are exempt from Rule 12, how does the public get access to those records? Court case records are accessible through the Common Law Right of Access (CLRA). In 1978, the United States Supreme Court recognized the public’s general right to inspect and copy court case records under common law.12 Texas courts also recognize CLRA.13 However, CLRA is not an absolute right. The Supreme Court stated “[e]very court has supervisory power over its own records and files, and access has been denied where court [case] files might have become a vehicle for improper purposes.”14 15. What is improper purpose and who decides when a request is considered to be for an improper purpose? Unfortunately, it is hard to define improper purpose. The courts have not given a comprehensive definition of the term. Generally, the Supreme Court does think it is best to leave the decision of whether a request is for an improper purpose to the discretion of the trial court. The trial court will take into account the relevant facts and circumstances to make this determination.15 Therefore, the presiding

11 Tex. R. Jud. Admin. 12.9. 12 Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978). 13 See Ashpole v. Millard, 778 S.W.2d 169, 170 (Tex. App. – Houston[1st Dist.] 1989, no writ) (citing Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978), for the proposition that American courts recognize the public's general right under the common law to inspect and copy judicial records). 14 Nixon , 435 U.S at 597. 15 Id. at 598-599. 5

10/14/2016 8 judge of a municipal court will make the decision to release court case records taking into account the facts and circumstances of each particular court case. 16. If the municipal court determines that the court case records should be released, will personal information contained in the court case records be released? Personal information contained in court case records will not be released because that information is protected by the common law right of privacy (CLRP). CLRP is an exception to CLRA. CLRP protects information from release if the information meets two requirements: 1) the information must contain “highly intimate or embarrassing facts, the publication of which would be highly objectionable to a reasonable person”, and 2) the information must not be of legitimate concern to the public.16 Social security numbers, driver’s license numbers, and personal financial information are all protected by CLRP.17 Information protected by CLRP should be redacted from the requested court case records before the records are released. Once all the appropriate redactions are made, the court case records must be released. 17. Can the municipal court charge cost for copies of court case records? Yes, the municipal court can charge for copies of court case records. If there is a cost ordinance, the municipal court must follow the cost ordinance when determining charges for court case records. However, if there is not a cost ordinance, the municipal court can charge a reasonable fee for the copies of court case records. The municipal court could follow the OAG’s Cost Rules or use the OAG’s Cost Rules as a guide to help determine what a reasonable cost to charge would be. 18. Is there an appeal process under CLRA? There is not a specific appeals process under CLRA. Generally, the requestor can file a writ of mandamus if the requestor thinks they were improperly denied court case records.

16 Industrial Foundation of the South v. Industrial Accident Board, 540 S.W.2d 668, 685 (Tex. 1976). 17 See Tex. Att’y Gen. OR2010-10785 (personal financial information not related to a financial transaction between an individual and a governmental body is intimate and embarrassing and of no legitimate public interest). 6

10/14/2016 9 II. Public Information Act 1. What types of information are subject to the Public Information Act? Public Information means information that is written, produced, collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business: a) By a governmental body; b) For a governmental body and the governmental body: a. Owns the information; b. Has a right of success to the information; or c. Spends or contributes public money for the purpose of writing, producing, collecting, assembling, or maintaining the information; or c) By an individual officer or employee of a governmental body in the officer’s or employee’s official capacity and the information pertains to official business of the governmental body.18 Information is in connection with the transaction of official business if the information is created by, transmitted to, received by, or maintained by an officer or employee of the governmental body in the officer’s or employee’s official capacity, or a person or entity performing official business or a governmental function on behalf of a governmental body.19 Also, public information applies to and includes any electronic communication created, transmitted, received, or maintained on any device if the communication is in connection with the transaction of official business.20 2. What format of records is subject to the Public Information Act? The Public Information Act (hereinafter the Act) applies to all records regardless of their format. It includes information that is maintained in paper, tape, microfilm, video, Internet postings, e-mail, as well as other mediums specified under law.21 3. What types of entities are subject to the Public Information Act? The Act applies to information that is held by or for any “governmental body”.22 The term “governmental body” has a broad definition that includes in applicable part:

18 Tex. Gov’t Code Ann. § 552.002(a). 19 Id . § 552.002(a-1). 20 Id. § 552.002(a-2). 21 Id. § 552.002(b) & (c). 22 Id. § 552.003(1)(A). 7

10/14/2016 10 1. Boards, commissions, departments, committees, institutions, agencies, or offices that is within or is created by the executive or legislative branch of state government and that is directed by one or more elected or appointed members; 2. City governmental bodies; 3. County governmental bodies; 4. School district board of trustees; 5. Deliberative bodies that have rule-making or quasi-judicial power and that are classified as a department, agency, or political subdivision of a city or county; 6. The part, section or portion of a public or private entity that spends or that is supported in whole or in part by public funds; 7. Local workforce development board; 8. Nonprofit corporations that are eligible to receive funds under the federal community services block grant program and that are authorized by this state to serve a geographic area of the state; 9. Certain property owners’ associations.23 In other words, all governmental entities and certain non-governmental entities are subject to the Act. Additionally, entities that are considered departments, agencies, or political subdivisions of a city or county are also subject to the Act if the involved entity has rule-making or quasi-judicial powers. For example, zoning boards of adjustment have rule-making or quasi-judicial powers and are considered agencies or departments of a city. Therefore, the records of such entities would be subject to the Act. 4. Are court records subject to the Public Information Act? Judicial records are not subject to the Act.24 Courts must look to the rules adopted by the Texas Supreme Court to determine the court’s duty to provide access to court records.25 Additionally, courts must consider court rulings, Attorney General opinions and certain state statutes that give the public a right to obtain copies of court records. For example, higher courts have held that there is an “open courts” concept that must guide judges in giving public access to court documents. This legal concept provides that the public has a right to inspect and copy judicial records subject to the court’s inherent power to control access to

23 Id. § 552.0036. 24 Id. § 552.003(1)(B). 25 Id. § 552.0035. See Tex. R. Jud. Admin. 12. 8

10/14/2016 11 such records in order to preserve justice. In other words, the public’s right of access to court documents is not an absolute right.26 It should be noted that the public’s right to access court records is in addition to the right of parties to a lawsuit to obtain information through discovery or through other court procedures. Legislation has clarified that subpoenas and motions for discovery are not considered a request for information under the Public Information Act.27 Such requests should be handled as required by the applicable civil or criminal procedural statutes. Additionally, state law has been amended to indicate that probable cause affidavits for a search warrant are considered public records once the warrant has been executed. The magistrate who issued the warrant must make the affidavits available for public inspection in the court clerk’s office.28 5. To what governmental officer must an open records request be directed? Except in the case of faxed and e-mailed requests, the Public Information Act does not require that the public direct its open records requests to any specific public employee or officer.29 Generally, the deadlines involved in handling an open records request are not put on hold merely because the wrong staff member received the request. For this reason, it is important that a governmental body clearly inform all of its employees what to do if they receive a request for records. The public official must be careful about what they do with these requests. 6. What is a governmental body’s duty to respond to e-mailed or faxed requests for copies of records? The governmental body has a duty to respond to any written requests for open records including those that are made through e-mail or by fax. However, state law provides that the governmental body can designate a person who is authorized to receive e-mail or faxed requests for open records. If the governmental body makes such a designation, the Act is only activated for emails and fax request if the request is directed to the assigned individual.30 If the governmental body has not made such a designation, the e-mail or faxed request can be directed to any official or staff member.

26 Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978); Ashpole v. Millard, 778 S.W.2d 169 (Tex.App. ‘ Houston [1st Dist.] 1989, no writ); Op. Tex. Att’y Gen. No. DM-166 (1992), Tex. Att’y Gen. ORD-25 (1974). 27 Tex. Gov’t Code Ann. §§ 552.005, .0055. 28 Tex. Code Crim. Pro. Ann. art. 18.01(b). See also Houston Chronicle Publishing Co. v. Woods, 949 S.W.2d 492, 499 (Tex. App. — Beaumont 1997, no writ). 29 Tex. Att’y Gen. ORD-44 (1974), ORD-497 (1988). 30 Tex. Gov’t Code Ann. § 552.301(c). 9

10/14/2016 12 7. How much time does a governmental body generally have to comply with an open records request? There is often a misconception that the Public Information Act requires that copies of public information must be produced within ten business days of the written request to the governmental body for the record. However, the standard under the Act is actually that the governmental body must “promptly produce” the public information.31 Further, the Act states that all open records requests must be handled with good faith and must be accomplished within a reasonable time period.32 What is considered reasonable and prompt will vary depending on the number of documents sought by the requestor. In certain circumstances, the records can be produced in less than ten business days. However, requests for a substantial number of documents may take several weeks to produce. If it will take a governmental body longer than ten business days to provide the records, the governmental body must certify that fact in writing to the requestor.33 In the notice to the requestor, the governmental body must indicate a set date and hour within a reasonable time that the information will be available for inspection or duplication. 8. When is a governmental body required to ask for an open records ruling from the Attorney General? A governmental body is required to ask the Attorney General for an open records ruling in almost all cases if the governmental body wants to withhold requested documents or information.34 The fact that a particular document request may arguably fall within one of the statutory exceptions to disclosure does not in itself eliminate the need to ask for an open records ruling. Unless the governmental body can point to a previous determination that addresses the exact information that the governmental body now wants to withhold35 or there is a statute that allows the governmental body to withhold information without asking for a ruling36, the governmental body must request a ruling to withhold the information. In addition, if determining whether a particular record may be withheld under a statutory exception requires a review and consideration of the applicable facts, the governmental body should request an Attorney General ruling before it withholds the record.

31 Id. § 552.221(a). See also Tex. Att’y Gen. ORD-664(2000). 32 Tex. Gov’t Code Ann. § 552.221(a), Tex. Att’y Gen. ORD-467(1987), ORD-664(2000). 33 Tex. Gov’t Code Ann. § 552.221(d). 34 Id. § 552.301(a). 35 See Tex. Att’y Gen. ORD-673 (2001) (what constitutes a “previous determination”); Tex. Att’y Gen. ORD-435 (1986) (school district cannot unilaterally decide that material fits within exception unless the school district has previously requested a determination involving the exact same material); Houston Chronicle Publishing Co., v. Mattox, 767 S.W.2d 695, 698 (Tex. 1989) (specifying that Attorney General is authorized to determine what constitutes “previous determination.”). See also Tex. Att’y ORD-684(2009) (Previous determination that allows all governmental bodies to redact certain information without asking for a ruling.). 36 See Tex. Gov’t Code Ann. §§ 552.130, .136 (example of information that can be withheld without asking for a ruling). 10

10/14/2016 13 A request for an Attorney General ruling must be made within ten business days of the date the governmental body received the written request.37 Such a request can only be made by the governmental body.38 If the governmental body does not make such a request within the deadline, the information is presumed to be open to the public as a matter of law and the information must be released.39 The presumption of openness and the duty to release the information can only be overcome by a compelling reason that the information should not be released. A compelling reason may in certain cases involve a showing that the information is deemed confidential by some other source of law or that third-party interests are at stake.40 It should be noted that if the governmental body is going to release all of the requested information, there is no need to ask for a ruling. The governmental body can seek advice on any of these issues from the Attorney General’s Open Government Hotline at (877) 673-6839 or (512) 478-6736. 9. What must a governmental body do if it wants to request an Attorney General open records ruling? If a governmental body wants to withhold a record, it has ten business days from the date it receives the request to ask for an open records ruling from the Attorney General. On the tenth business day, the governmental body must do the following: 1. Write the Attorney General requesting an open records ruling and state which exceptions apply to the requested information.41 The original request for a ruling must indicate the specific exception that the governmental body is relying on to withhold the information. If the governmental body fails to cite the applicable exceptions in this request, the governmental body generally will be barred from raising them in any additional briefing that it may provide. 2. Provide the requestor with a written statement that the governmental body wishes to withhold the information and that it has asked the Attorney General for a ruling.42 3. Provide the requestor with a copy of the governmental body’s correspondence to the Attorney General.43 4. Make a good faith attempt to notify any affected third parties of the request.44

37 Tex. Gov’t Code Ann. § 552.301(b). 38 Tex. Att’y Gen. ORD-542 (1990). 39 Tex. Gov’t Code Ann. § 552.302. See Tex. Att’y Gen. ORD-319 (1982). 40 Tex. Att’y Gen. ORD-150 (1977). 41 Tex. Gov. Code Ann. § 552.301(b). 42 Id . § 552.301(d)(1). 43 Id. § 552.301(d)(2). 44 Id. § 552.305(d). 11

10/14/2016 14 The governmental body has an additional five business days (a total of fifteen business days from the date the governmental body received the original request for the record) to provide the Attorney General with additional written documentation that supports withholding the requested information.45 By the 15th business day, the governmental body must: 1. Submit written comments explaining how the claimed exceptions apply.46 2. Submit a copy of the written request for information.47 3. Submit a signed statement or evidence sufficient to establish the date the request for information was received.48 It is important to note that the ten business day deadline for requesting an Attorney General open records ruling is measured from the date the request is clarified or narrowed as long as the governmental body is acting in good faith in requesting a clarification or narrowing of an unclear or unduly broad request.49 If the governmental body contends that the ten business day deadline started the date the request was clarified or narrowed, the governmental body must explain this fact in its request for an open records ruling. Also, the governmental body must explain if there were holidays, natural disasters, and any other days the governmental body was officially closed. In its explanation, the governmental body should include all dates relevant to the calculation of the ten business day deadline. 4. Submit copies of documents requested or a representative sample of the documents.50 The documents must be labeled to show which exceptions apply to which parts of the documents.51 Representative samples are not appropriate when each document sought to be withheld contains substantially different information or when third-party proprietary information is at issue. 5. Provide the requestor with a copy of the written comments submitted to the Attorney General.52 The governmental body must provide a copy of its comments to the requestor not later than the 15th business day after the date the request for information was received. This does not mean that the governmental body has to send the requestor a copy of the information that they are trying to withhold. If the written comments disclose or contain the substance of the information requested, the copy provided to the requestor

45 Id. § 552.301(e). 46 Id. § 552.301(e)(1)(A). 47 Id. § 552.301(e)(1)(B). 48 Id. § 552.301(e)(1)(C). 49 City of Dallas v. Abbott, 304 S.W.3d 380, 384 (Tex. 2010). 50 Tex. Gov’t Code Ann. § 552.301(e)(1)(D). 51 Id. § 552.301(e)(2). 52 Id. § 552.301(e-1). 12

10/14/2016 15 should be redacted. Governmental bodies are cautioned against redacting more than that which would reveal the requested information to the requestor. The Attorney General may ask the governmental body for additional information.53 The governmental body must respond to an Attorney General’s request of additional information within seven calendar days.54 If the governmental body fails to respond, the information is presumed to be open and must be released unless there is a compelling reason to withhold the information.55 10. How long does the Attorney General have to respond to a request for an open records ruling? The Attorney General has 45 business days from the date the request for ruling was received from the governmental body.56 However, if the Attorney General is unable to issue the decision within the 45 business-day period, the Attorney General may extend the time to respond for an additional ten business days. Such an extension may be taken if the Attorney General notifies the governmental body and the requestor of the reason for the delay. This notification must take place within the original 45 business-day time period. 11. What inquiries can a governmental body make of an open records requestor? Generally, there are only two permissible lines of inquiry that can be made of a requestor. First, the governmental body can ask a requestor for proper identification.57 This inquiry for proper identification should be done if needed, but if the information can be given without any identification, then the inquiry is not necessary. State law does not indicate how such identification could be accomplished if the request is completely handled through the mail, e-mail, or by fax. This identification requirement is generally imposed by a governmental body when a state statute limits who may gain access to certain information. For example, certain statutes regulate who can gain access to information within motor vehicle records such as copies of drivers’ licenses.58 These statutes contain specific rules on what inquiries can be made to determine if the requestor is eligible to receive the information. If an open records request involves such information, the governmental body should visit with its legal counsel regarding the applicable law.

53 Id. § 552.303(c). 54 Id. § 552.303(d). 55 Id. § 552.303(e). 56 Id. § 552.306(a). 57 Id. § 552.222(a). 58 Id. § 552.222(c). 13

10/14/2016 16 Second, a governmental body may ask the requestor for a clarification if the request is unclear or ask the requestor to narrow the scope of the request if the request is unduly broad.59 If a governmental body in good faith has determined that the request for information is unclear or that the scope of the information being asked for is unduly broad, the governmental body should ask the requestor to clarify or narrow the scope of a request. The ten business days to request an Attorney General’s open records ruling is measured from the date the request is clarified or narrowed as long as the governmental body is acting in good faith.60 In other words from the day that the requestor clarifies or narrows his/her request to the governmental body, the governmental body has ten business days to ask for a ruling from the Attorney General’s office. The written request for clarification to the requestor must contain a statement as to the consequence of failing to timely respond to the request for clarification, discussion or additional information.61 If the governmental body sends a written request for clarification, discussion or additional information to the requestor and the requestor does not send a written response by the 61st day, the requestor’s open records request is considered withdrawn.62 For the request to be considered withdrawn, the governmental body must send the request for clarification, discussion or additional information to the requestor by certified mail if the governmental body has a physical or mailing address for the requestor.63 It should be noted that the governmental body cannot ask the requestor the purpose for which the information will be used. 12. What is the general ability of a governmental body to charge for documents? The Public Information Act allows governmental bodies to set a charge for providing copies of public information.64 However, a governmental body may not charge more than 25% above the charges set by the Attorney General’s Office.65 If a governmental body’s actual cost for producing copies of open records exceeds the Attorney General’s Office charges by more than 25%, the governmental body may apply to the Attorney General’s Office for permission to charge more.66 In no case may the charge by the governmental body exceed the actual cost of producing the requested copies.

59 Id. § 552.222(b). 60 City of Dallas v. Abbott, 304 S.W.3d 380, 384 (Tex. 2010). 61 Tex. Gov’t Code Ann. § 552.222(e). 62 Id. § 552.222(d). 63 Id. § 552.222(f). 64 Id. § 552.262. See generally, id. §§ 552.261 - .275. 65 Id. § 552.262(a). See generally 1 Tex. Admin. Code §§ 70.1 - .12 (cost rules promulgated by the Attorney General’s office). 66 Tex. Gov’t Code Ann. § 552.262(c). 14

10/14/2016 17 13. Is a requestor allowed to sue a governmental body for failure to comply with the Public Information Act? A requestor is allowed to bring certain actions against a governmental body for violations of the Public Information Act. The requestor may file a complaint against a governmental body with the local county or district attorney.67 The complaint must meet the following requirements: 1. be in writing and signed by the complainant; 2. state the name of the governmental body that allegedly committed the violation, as accurately as can be done by the complainant; 3. state the time and place of the alleged commission of the violation, as definitely as can be done by the complainant; and 4. describe the violation, in general terms.68 Before the 31st day after receiving the complaint, the local prosecuting attorney must determine if a violation has been committed, decide whether to take action against the governmental body, and notify the person who filed the complaint of that decision.69 If the local prosecutor declines to proceed with an action against a governmental body, the complainant can file a complaint with the Attorney General before the 31st day after the date the complaint is returned to the complainant by the local prosecuting attorney.70 The Attorney General also must determine if a violation has been committed, decide whether to take action against the governmental body, and notify the person who filed the complaint of that decision. The Attorney General Office must notify the complainant of its determination before the 31st day after receiving the complaint.71 If either the local prosecuting attorney or the Attorney General decides to bring a lawsuit against a governmental body, the governmental body must be notified prior to the filing of the lawsuit.72 The governmental body has three days to remedy the problem. 14. What civil remedies can be brought against a governmental body for failure to comply with the Public Information Act? If a governmental body refuses to release public information or refuses to request an Attorney General ruling, either the requestor or the Attorney General may bring a lawsuit to force the release of the records in question.73 Even if the

67 Id. § 552.3215(e). 68 Id. 69 Id. § 552.3215(g). 70 Id. § 552.3215(i). 71 Id. 72 Id. § 552.3215(j). 73 Id. § 552.321. 15

10/14/2016 18 Attorney General has determined that the governmental body may withhold the requested information, the requestor may still file a lawsuit against the governmental body to seek disclosure of the requested information.74 Under certain circumstances, a third party may file litigation to prevent the release of records that implicate that person’s privacy or proprietary interests.75 In a lawsuit brought to compel the release of public information, a requestor or the Attorney General is entitled to an award of attorney fees and costs if they prevail in their suit. 76 In a lawsuit by a governmental body seeking relief from compliance with an Attorney General ruling, a court may order the losing side to pay litigation costs and attorneys’ fees, but is not required to. Additionally, a requestor who feels he or she has been overcharged for copies of public information may file a complaint with the Attorney General’s office.77 The Attorney General’s office may require the governmental body to pay the requestor the amount of any overcharge. If the Attorney General’s office finds that the overcharge was due to bad faith on the part of the governmental body, the requestor who is overcharged may recover up to three times the amount of the overcharge from the governmental body.78 15. What are the criminal penalties for noncompliance with the Public Information Act? There are three provisions of the Public Information Act that have criminal penalties if violated: Failure to Give Access to Public Information: A person responsible for releasing public information commits a crime if he or she fails to give access to or fails to permit copying of public information as required by the Public Information Act. This violation is a misdemeanor punishable by a fine of up to $1,000, a six- month jail term, or both. Also, the Public Information Act states that this violation constitutes official misconduct.79 Thus, a public official may be subject to removal from office for such an offense. Release of Confidential Information: A person commits a crime if he or she distributes information considered confidential under the Public Information Act. This violation is a misdemeanor punishable by a fine of up to $1,000, a six-month jail term, or both. This violation also constitutes official misconduct.80

74 Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App. — Austin 1992, no writ). 75 See, e.g., Morales v. Ellen, 840 S.W.2d 519 (Tex. App. — El Paso 1992, writ denied). See also Tex. Gov’t Code Ann. § 552.325. 76 Tex. Gov’t Code Ann. § 552.323. 77 Id. § 552.269. 78 Id. § 552.269(b). 79 Id. § 552.353. 80 Id. § 552.352. 16

10/14/2016 19 Illegal Destruction or Alteration of Public Information: A person commits a crime if that person willfully destroys, mutilates, or alters public information or removes such information without permission. This offense is a misdemeanor and is punishable by a fine between $25 and $4,000, three days to three months of jail time, or both.81 It is important to note that there are provisions of Texas law outside of the Public Information Act that criminalize tampering with a governmental record which may constitute a felony.82

81 Id. § 552.351. 82 See, e.g., Tex. Penal Code Ann. § 37.10. 17

10/14/2016 20 System Crash: Creating a Security Incident Plan and Getting the Court Back Online+ OCA Information Services

OFFICE of COURT ADMINISTRATION

About Me

20+ years of Information Technology

Hacking since 1988

Provides IT support to Texas appellate and high courts

Manages the statewide eFiling system

OFFICE of COURT ADMINISTRATION

Agenda

What’s a Why do I need Security “Security a plan for this Incident Incident”? anyway? Response Flow

Elements of a good Security Incident Response Plan

OFFICE of COURT ADMINISTRATION

10/13/2016 1 What is a “Security Incident”?

Anytime that someone accesses data that they are not authorized to access, it’s considered a security incident.

Notification requirements differ based on the severity of the incident.

Data breaches covered by Business and Commerce Code, Chapter 521

OFFICE of COURT ADMINISTRATION

Why even plan?

• Matter of when, not if….

• Courts have a treasure trove of sensitive info

• Yeah, the city is taking care of it….

OFFICE of COURT ADMINISTRATION

Sensitive Info?

• Considered to be a person’s first name OR initial, WITH last name AND one of the following: • SSN • DL Number or Gov Issued ID Number • Financial info that would get the person access to the account • ANYTHING health related

OFFICE of COURT ADMINISTRATION

10/13/2016 2 Incident Response Flow –1st 24 Hours

Record Stop the Interview Bring in Activate Priority the loss/ and the “A the Team and Risks Incident Preserve Review Team”

OFFICE of COURT ADMINISTRATION

Incident Response Flow –After day 1

Fix the Mind your Report out Track issue that “Lessons legal to efforts to caused the Learned” obligations everyone completion incident

OFFICE of COURT ADMINISTRATION

Elements of a good plan….

OFFICE of COURT ADMINISTRATION

10/13/2016 3 Documented

• As in written down…and signed‐off

• Consult the collective for good templates Incident Response filetype:pdf

• Train all team members on the plan

• Include Checklists and pre‐written communications

OFFICE of COURT ADMINISTRATION

Wrangle up the Team

• The internal team

• How it works within the larger jurisdictional team

• IT staffing, PR staffing

• A‐Team staffing (forensics analysis, incident response vendor)

OFFICE of COURT ADMINISTRATION

“Checklist” as much as possible

• 24‐Hour checklist

• IT Team checklist

• PR Team checklist

• Pre‐written messaging for all communication channels (email, letters, media, etc)

• Pre‐written messaging for judges and staff

OFFICE of COURT ADMINISTRATION

10/13/2016 4 Practice makes perfect

• Should practice at least annually

• Consider table top exercises.

• Involve the whole team

OFFICE of COURT ADMINISTRATION

Maintenance of the Plan

• Review the plan at least annually

• Good to co‐inside review right after the previous exercise

• Training for the team

OFFICE of COURT ADMINISTRATION

Resources

• http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP .800‐61r2.pdf

OFFICE of COURT ADMINISTRATION

10/13/2016 5 Questions?

Richard Morse Information Security Officer Office of Court Administration

[email protected] 512.936.2101

OFFICE of COURT ADMINISTRATION

10/13/2016 6

FINANCIAL RESPONSIBILITY TRANS. CODE -CHAP 601 Understanding the Blah, Blah, Blah of Insurance Laws

Frederick P. Garcia, Jr. Municipal Court Clerk/Director City of San Antonio

Objectives for Class 1) Identify Statutory Authority Requirements for “Establishment of Financial Responsibility”; 2) Illustrate Coverage Issues; 3 ) Discuss Methods of Verification; 4) Describe Laws Applicable to License Suspensions, Impoundment of Vehicle and Surcharges

What is required?

Texas Trans. Code § 601.051. A person may not operate a motor vehicle in this state unless financial responsibility is established for that vehicle through: ______

What is financial responsibility?

Texas Trans. Code § 601.002

______

Why is there a need for financial responsibility?

______

When is evidence of financial responsibility required to be exhibited?

1______2______3______4______5______

FINANCIAL RESPONSIBILITY Page 1

What evidence of financial responsibility is required?

Texas Trans. Code § 601.053

1______2______3______4______5______6______7______

Motor Vehicle Liability Insurance

Texas Trans. Code § 601.071.

______

Minimum coverage amounts

______

Required Terms on Policy – Owners/Operators Policy

Texas Trans. Code § 601.073; § 601.076; § 601.077

1______2______3______4______5______

______

Financial Responsibility for Others

Texas Trans. Code § 601.054

______1______2______

FINANCIAL RESPONSIBILITY Page 2

Prescribed Standard Proof of Motor Vehicle Liability Insurance

Texas Trans. Code § 601.081

1______2______3______4______5______6______.

Alternative Methods of Establishing Financial Responsibility

Texas Trans. Code § 601.121; § 601.122; § 601.123; § Sec. 601.124

1______2______3______4______

Financial Responsibility Verification Program

______

What are the Exceptions to Financial Responsibility?

Texas Trans. Code § Sec. 601.124; § Sec. 601.007

______

What are the Criminal Penalties for Failure to Maintain Financial Responsibility?

Texas Trans. Code § 601.191

______

What are the Defenses to the Requirement of Financial Responsibility?

Texas Trans. Code § 601.193

______Verification______

FINANCIAL RESPONSIBILITY Page 3

Texas Trans. Code § 601.194

______

What are the Civil Penalties for Failure to Maintain Financial Responsibility?

Texas Trans. Code § 601.231

______

Notice of Potential Suspension Texas Trans. Code § 601.233

______

Impoundment of Motor Vehicle Texas Trans. Code §601.261; §601.262

______

Surcharge for Conviction of DWLI or Without Financial Responsibility

Texas Trans. Code §708.103

______

FINANCIAL RESPONSIBILITY Page 4

BEYOND THE DAY TO DAY ADDITIONAL ACTIVITY REPORTING

BEYOND THE DAY TO DAY OBJECTIVES

• Discuss the elements of the OCA monthly report that includes data regarding cases that are not pending in the municipal court. • Recognize the importance of submitting accurate data regarding the work of municipal judges as magistrates. • Identify the best methods for capturing data regarding magistration action that happens away from the municipal court facility

WHY DO WE DO THIS REPORT? WE DO THIS REPORT BECAUSE: LEGAL REQUIREMENTS • The report is mandated by: • Texas Government Code, Chapt 71, section 71.035(b): Judge/Clerk must submit monthly report as duty of office • Texas Administrative Code, Sections 171.1 & 171.2: Report is due no later than the 20th of each month (e.g., report for August is due Sep 20)

WE DO THIS REPORT BECAUSE:

TEXAS JUDICIAL COUNCIL • Policymaking body for the judicial branch • Consists of 22 judicial, legislative, and citizen members • Since 1929‐primary duty: gather judicial statistics from judges and other court officials • Assisted by OCA: Only entity that collects comprehensive stats on operations of Texas courts

SCOPE OF INFORMATION • Not all encompassing • Judge‐Centered • Measures inputs and outputs • Includes categories added by Legislature that help make decisions on jurisdiction, structure and needs of the court system. REPORTING REQUIREMENTS

Due by 20th of month

Must report online unless waived

Keep copies Submit even at least 2 if no activity years

DISCUSS THE ELEMENTS OF THE OCA MONTHLY REPORT THAT INCLUDES DATA REGARDING CASES THAT ARE NOT PENDING IN THE MUNICIPAL COURT.

Line 1. Magistrate Warnings ADDITIONAL COURT ACTIVITY ‐adult defendants ‐CCP Art 15.17 rights

A. Class C Misdemeanors B. Class A and B Misdemeanors C. Felonies *more than one offense in a single incident, count only 1 magistration ADDITIONAL COURT ACTIVITY

MULTIPLE When multiple offenses are involved OFFENSES representing more than 1 level of case category, report the RULE 1 magistration under the category of the most serious offense alleged.

ADDITIONAL COURT ACTIVITY *multiple UNLESS separate incidents, count a magistration for EACH separate incident

ADDITIONAL COURT ACTIVITY If an incident involved multiple charges, report 1 magistration under the category of the most serious offense alleged. ***Number of requests for counsel*** ADDITIONAL COURT ACTIVITY Courts MUST document the number of requests for counsel their judge receives at magistration for: Class A and B Misdemeanors Felonies *If defendant was charged with more than one offense in a single incident, count only 1 request for counsel.

ADDITIONAL COURT ACTIVITY If the multiple MULTIPLE offenses involved more than 1 level OFFENSES of case category, report the 1 request for RULE counsel under the category of the most serious offense alleged.

ADDITIONAL COURT ACTIVITY *The defendant was magistrated for charges involving UNLESS multiple, separate incidents, count a request for counsel for EACH SEPARATE incident, with only 1 request per incident with multiple alleged offenses. Request for counsel is reported under the category of the most serious offense alleged. ADDITIONAL • A record SHALL be made of requests for counsel COURT ACTIVITY • It is REQUIRED CCP, Art. 15.17(e) “a record shall be made of: (1) The magistrate informing the person of the person’s right to request appointment of counsel; (2) The magistrate asking the person whether the person wants to request appointment of counsel; and (3)Whether the person requested appointment of counsel.”

ADDITIONAL Line 2: Arrest Warrants issued COURT ACTIVITY A. Class C Misdemeanors Report the number of arrest warrants issued by the court during the month in class C misdemeanor cases. *should be picked up by software if court is automated. B. Class A & B Misdemeanors Report the number of arrest warrants issued by the court during the month in class A and B misdemeanor cases. C. Felonies Report the number of arrest warrants issued by the court during the month in felony cases.

ADDITIONAL • Line 3: Capiases Pro Fine issued COURT ACTIVITY Report the number of capiases pro fine issued during the month, Pursuant to Code of Criminal Procedure, Art. 45.045, for a defendant’s failure to pay fines and costs after judgment and sentence. ADDITIONAL • Line 4: Search Warrants Issued COURT ACTIVITY Report the number of search warrants the judge, as a magistrate, issued during the month that allowed law enforcement officers to search a particular premises or person.

ADDITIONAL • Line 5: Warrants for Fire, Health and COURT ACTIVITY Code Inspections Issued Report the number of search warrants issued, pursuant to CCP, Art. 18.05, to a fire marshal, health officer, or code enforcement official of the state or of any county, city, or other political subdivision for the purpose of allowing the inspection of any specified premises to determine the presence of a fire or health hazard or unsafe building condition or a violation o any fire, health, or building regulation, statute, or ordinance.

ADDITIONAL • Line 6: Examining Trials Conducted COURT ACTIVITY

Report the number of preliminary hearings on felony cases conducted by the judge during the month to determine whether, upon the basis of evidence produced at such a hearing, the defendant should be bound over to the grand jury or should be discharged from custody (CCP, Art. 16.01) ADDITIONAL • Line 7: Emergency Mental Health COURT ACTIVITY Hearings Held Report the number of hearings for emergency mental health commitments the judge held during the month as provided by Health and Safety Code. Sec. 573.012.

ADDITIONAL • Line 8: Magistrate’s Orders for COURT ACTIVITY Emergency Protection Report the number of emergency protection orders issued by the judge, as a magistrate, under CCP, Art 17.292.

ADDITIONAL • Line 9: Magistrate’s Orders for Ignition Interlock device COURT ACTIVITY Report the number of orders issued by the judge, as a magistrate, under CCP Art 17.441, requiring a defendant to have an ignition interlock device installed in their vehicle. ADDITIONAL • Line 10: All other magistrate’s COURT ACTIVITY orders issued requiring conditions for release on bond Report the number of other orders issued by the judge, as a magistrate, requiring conditions for release on bond under CCP, Art 17, except for the Magistrate’s Orders for Ignition Interlock Device reported in Line 8.

ADDITIONAL • Line 10: All other magistrate’s COURT ACTIVITY orders issued requiring conditions ‐Conditions related to victim or for release on bond community safety (Art 17.40); ‐Conditions where a child is the alleged victim (Art 17.41); ‐Home curfew and electronic monitoring (Art 17.43) ‐Home confinement, electronic monitoring, and drug testing (Art. 17.44); ‐AIDS and HIV instruction (Art. 17.45) ‐Conditions for a defendant charged with stalking (Art. 17.46); ‐Conditions requiring submission of a specimen (Art 17.47); and ‐Conditions for defendant charged with offense involving family violence (Art. 17.49)

• Line 11: DL denial, suspension or ADDITIONAL revocation hearings held COURT ACTIVITY Report the number of hearings held by the judge during the month pursuant to T.C. Sec. 521.300, to determine whether or not there is enough evidence to justify suspension or revocation of a person’s DL by DPS for habitual violations or inability to safely operate a motor vehicle. • Line 12: Disposition of Stolen ADDITIONAL Property hearings COURT ACTIVITY Report the number of hearings held by the judge during the month pursuant to CCP, Ch. 47, to determine the right to possession of stolen property.

ADDITIONAL • Line 13: Peace Bond Hearings Held COURT ACTIVITY Report the number of • Since the judge handles peace bonds hearings held by the judge as a magistrate, rather than as the during the month to judge of the municipal court, peace determine whether or not bonds should NOT be counted in a peace bond should be another section of the report. issued per CCP, Art. 7.03, regardless of when the complaint was filed, OR when (or whether) a warrant was issued, OR an order requiring the peace bond (if any) was entered.

• Line 14: Cases in which fine and ADDITIONAL court costs are satisfied by COURT ACTIVITY community service Report the number of cases in which comm svc or a tutoring program was completed to discharge a fine and/or court costs as provided by CCP, Art. 45.049 or 45.0492. Report these cases when the fine and court costs have been satisfied in full. ADDITIONAL • Line 14: Cases in which fine and COURT ACTIVITY court costs are satisfied by community service Do not include cases in which comm svc was mandatory for the offense and was ordered as part of the sentence

A. Partial Satisfaction B. Full Satisfaction

ADDITIONAL • Line 15: Cases in which Fine and COURT ACTIVITY Court Costs Satisfied by Jail Credit Report the number of cases in which jail credit was applied to partially or fully discharge a fine or court costs.

* Report when the fine and costs have been satisfied in full, even if the defendant is on a deferral and other obligations in the case have not yet been met.

ADDITIONAL • Line 16: Cases in which fine and COURT ACTIVITY costs waived for indigency Report the number of cases in which a fine or costs were partially or fully waived for indigency during the month, including waivers because the defendant was a child at the time of the offense. ADDITIONAL • Line 17: Amount of fines and costs COURT ACTIVITY waived for indigency Report the total amount of fines and costs waived during the month for indigency, including waivers because the defendant was a child at the time of the offense.

Report the amount waived even if the defendant is on a deferral and other obligations in the case have not yet been satisfied.

ADDITIONAL • Line 18: Total Fines, Court Costs and COURT ACTIVITY other amounts collected Report the amounts of court‐related money collected by the court during the month. Include fines, fees, court costs; Omnibase fees; forfeited bonds; fees for copies, etc.

ADDITIONAL • Line 18: Total Fines, Court Costs and COURT ACTIVITY other amounts collected Do not include amounts retained by a private collections agency for service fees; amounts assessed; jail credit; comm svc or tutoring program credit; or amounts not related to court ops (i.e. overdue library book fees; parking permits, licenses or other parking revenue not related to parking violations..

A. Retained by City B. Remitted to State C. Total RECOGNIZE THE IMPORTANCE OF SUBMITTING ACCURATE DATA REGARDING THE WORK OF MUNICIPAL JUDGES AS MAGISTRATES.

IMPORTANCE OF CASE ACTIVITY • Data can be used as a management and planning tool to objectively assess: • Workload • Trends in case activity • Court performance • Available to the public

IMPORTANCE OF CASE ACTIVITY • Judges and Clerks have the obligation to: • Insure software is collecting information accurately • Insure the court is reporting information accurately • Status codes • Fee codes • Non‐cash credit codes • Communication between Judge and Clerk IDENTIFY THE BEST METHODS FOR CAPTURING DATA REGARDING MAGISTRATION ACTION THAT HAPPENS AWAY FROM THE MUNICIPAL COURT FACILITY.

METHODS OF CAPTURING MAGISTRATION DATA • TMCEC Magistrate warning form • Local Magistrate warning form • Copy of OCA Additional Activity page • Use hash mark

HOW DID WE HELP YOU WITH THOSE DUTIES THAT ARE BEYOND THE DAY TO DAY?

• Discussed the elements of the OCA monthly report that includes data regarding cases that are not pending in the municipal court. • Recognized the importance of submitting accurate data regarding the work of municipal judges as magistrates. • Identified the best methods for capturing data regarding magistration action that happens away from the municipal court facility THANK YOU VERY MUCH FOR ATTENDING TODAY!!!

CAROL E. GAUNTT, CMCC ASSOCIATE JUDGE CITY OF WEATHERFORD MUNICIPAL COURT [email protected] 817‐598‐4037 ADDITIONAL ACTIVITY REPORTING S.B. 1517 and Article 15.17: How New Legislation Affects Magistrate Duties

by Mark Goodner

One the bills addressed this past summer during the 2015 Legislative Update is primarily a cost issue from the perspective of Texas counties, but S.B. 1517 was written with indigent defendants’ rights in mind to ensure the timely appointment of counsel in criminal cases. S.B. 1517 amends Articles 1.051, 15.17, 15.18, and 26.04 of the Code of Criminal Procedure to establish a process for determining the responsibility for appointing counsel for those indigent defendants. Because municipal judges as magistrates perform the most Article 15.17 hearings and because magistrates must inform defendants of procedures for requesting appointment of counsel, municipal judges should be aware of the potential need to change their processes.

The Problem

In the past, indigent persons arrested and jailed in a county on a warrant issued by a different county sometimes remained incarcerated unnecessarily because the county issuing the warrant delayed transporting the defendant or failed to effectuate a release. The delay was exacerbated if the issuing county had not appointed counsel for the indigent defendant.

The Changes

S.B. 1517 changed a handful laws to address the problem.

Article 1.051 Article 1.051 of the Code of Criminal Procedure requires counsel to be appointed as soon as possible, but not later than the end of the third working day after receiving a request for appointment of counsel (in a county of less than 250,000) or the end of the first working day after receiving request (in a county of 250,000 or more).

The change to Article 1.051 is a clarification. If an arrest is in a county other than the county that issued the warrant, the issuing county designee is obligated to appoint by the end of the third working day after receiving a request for appointment of counsel (in a county of less than 250,000) or by the end of the first working day after receiving the request (in a county of 250,000 or more), even if defendant is not in the county and adversarial proceedings have not begun. If the person has not been transferred to the issuing county before the 11th day after the arrest, and if counsel has not been otherwise appointed, the arresting county immediately appoints. If this is the case, the arresting county can seek reimbursement from the issuing county. This is the only significant change made by the bill. In a nutshell, the warrant-issuing county is responsible for the appointment counsel. If they do not fulfill their obligation and have not appointed counsel within 11 days after arrest, then the county arresting (and presumably still holding) the defendant must appoint counsel. In an effort to avoid the arresting county shouldering the costs of appointment due to the issuing county’s failure to fulfill their counsel appointing duties, Article 1.051 now allows the arresting county to seek reimbursement.

Article 15.17

Article 15.17 remains essentially unchanged. It requires the recording of magistration regardless of whether a charge originates from in county or from out of county occurring due to Article 15.18(a). This is a minor change. Article 15.18(a) already required a magistrate to give Article 15.17 warnings, and Article 15.17 already required a recording to be made. In my experience, magistrates treat magistrate warnings the same for each defendant (regardless of the county issuing the warrant) and therefore record all of them. However, if there was a question about whether a recording needed to be made when magistrating an out of county defendant, it has been answered. Record them all.

Article 15.18

If the person is taken before an out of county magistrate under Article 15.18(a), the magistrate must inform the person of appointment of counsel procedures. If requested, the magistrate shall, without delay but no later than 24 hours, transmit the necessary request to court or designee in the county that issued the warrant. This amendment deserves special attention, because it ties most directly to the responsibility of the magistrate, as opposed to an appointment timeline. It makes no new requirement, however. Magistrates were already obligated to transmit counsel appointment request documents within 24 hours. This language already existed in (and is lifted directly from) Article 15.17.

Be aware, however, if magistrates have not been transmitting the requested documents within 24 hours and no one has noticed, the addition of this language to Article 15.18 will serve to put people “on notice” of the requirement and magistrates’ appointment of counsel request transmission procedure may receive renewed scrutiny. As each county adopts its own appointment procedures and because Articles 15.17 and 15.18 do not specify how these requests are to be “transmitted,” there is no one method. The 24 hour timeline is the concern here, so the quicker the better.

What to Do

S.B. 1517 provides local governments a good opportunity to carefully consider their understanding and implementation of existing state laws. All judges, as magistrates should be familiar with their county’s indigent defense plan available at the Texas Indigent Defense Commissions website, here. The passage of S.B. 1517 may prove to be a good time for cities and counties to confer so that there is a mutual understanding of responsibilities within the existing indigent defense plan. For more information, check out the S.B. 1517 out of county arrests flowchart and a list of county arrest contacts available on TMCEC’s website here.

OFFICE OF COURT ADMINISTRATION TEXAS JUDICIAL COUNCIL

OFFICIAL MUNICIPAL COURT MONTHLY REPORT INSTRUCTIONS

INDEX TO INSTRUCTIONS

LEGAL REQUIREMENTS & GENERAL INSTRUCTIONS ...... 1

CRIMINAL SECTION ...... 3 Definition of Criminal Cases ...... 3 Criminal Case Type Categories ...... 3

CIVIL/ADMINISTRATIVE SECTION ...... 13 Definition of Civil/Administrative Cases ...... 13 Civil/Administrative Case Type Categories ...... 13

JUVENILE/MINOR ACTIVITY ...... 16

ADDITIONAL COURT ACTIVITY ...... 19

OFFICE OF COURT ADMINISTRATION P O BOX 12066 AUSTIN, TEXAS 78711-2066 512/463-1625 512/463-1865 fax

Effective September 1, 2015

Notes: Text highlighted in yellow provides additional details and clarification about what is to be counted. Red text indicates legislative changes.

IMPORTANCE OF REPORTING

The monthly report is not designed to report everything that a court does nor everything that requires the attention or time of the judge. It is also not designed to reflect all of the clerk’s responsibilities or to provide the basis for a complete case management system. Instead, the monthly report is designed to provide information required by law or needed by the judicial, legislative, and executive branches of government to make decisions regarding the jurisdiction, structure, and needs of the court system.

LEGAL REQUIREMENTS

Section 71.035(b) of the Texas Government Code requires each judge, clerk, or other court official to report information pertaining to the civil and criminal business transacted by the municipal court(s) as required by the Texas Judicial Council.

Sections 171.1 and 171.2 of the Texas Administrative Code require submission of court activity reports each month to the Texas Judicial Council by no later than 20 days after the end of the month for which statistics are reported.

Electronic Reporting

Effective September 1, 2011, all municipal courts are required to submit the report online unless the court has requested and obtained a waiver for good cause. (See Section 171.8 of the Texas Administrative Code.) Waivers are good for one year but may be renewed.

Reports may be entered electronically by one of two methods: a) manually entering the reports into the Court Activity Reporting and Directory System (http://card.txcourts.gov), OR b) uploading an XML file into the system.

Courts that have obtained an electronic reporting waiver may continue mailing, faxing, or emailing the report to OCA for data entry. However, only the new form will be accepted. Reports for September 2011 and later will not be accepted on the old form.

Paper Reporting

Courts that have obtained an electronic reporting waiver may continue mailing, faxing, or emailing the report to OCA for data entry. The Official Municipal Court Monthly Report form is to be used to report the activity of the municipal court during each one-month period. NOTE: Reports generated from a case management system should be an exact replica of the monthly report form—i.e., all categories should follow the order on the monthly report, no categories should be added or omitted, and no data should appear in areas that are shaded on the form.

On the front page, please complete the appropriate blanks identifying the month and year for the data being reported; the name of your court; the names of the presiding judge and court clerk; the court’s mailing address, fax number, email address, and website address (if available); and the name of the person that prepared the report, as well as his or her telephone phone number. (If appropriate, please provide a second phone number where that person can be reached during business hours.)

GENERAL INSTRUCTIONS

You must submit a report each month, even if your court had no activity.

To file a “No Activity” report:

 If you are reporting online, log in to the online reporting system and select Add New Monthly Report. Select the month and year for which you are filing a report. For each relevant section of the report (criminal, civil, juvenile/minor, and other), check the “No Activity” box near the top of the page, and fill in the Prepared By line at the bottom of the page.

 If you are reporting on paper, you may indicate that you had no activity by writing a large zero, “X,” or “No Activity” across the statistical part of the form.

Include only that activity that occurred during the month for which you are submitting a report. If you need to make changes to the information for a previous month, you must edit your online report (if you report online) or file an amended report (if you report on paper).

CRIMINAL SECTION

This section is divided into six case categories: violations of state traffic laws, violations of state parking laws, violations of city ordinances involving traffic or parking, Penal Code violations, violations of other state laws, and other city ordinance violations.

For the purpose of these reports, the number of criminal cases reported on this monthly reporting form is based on the number of defendants named in a complaint.

1. If the same defendant is charged in more than one complaint, it is counted as more than one case. For instance, if the same person is named in four separate complaints, count this as four cases.

2. When a clerk receives a citation with multiple offenses listed on it, each offense is a separate charge and must be alleged on separate complaints. Thus, each complaint is counted as a separate case.

TRAFFIC MISDEMEANORS

Cases relating to motor vehicle operation or ownership for which the maximum punishment does not involve confinement in jail or prison (i.e., class C misdemeanors).

Non-Parking. Cases involving violations of the provisions of Title 7, Transportation Code and related statutes that do not involve parking (e.g., speeding, passing a school bus, driving without a valid inspection sticker, driving with an expired or no driver’s license). NOTE: Do not include Violations of Promise to Appear here.

Parking. Cases involving violations of Sections 545.301 through 545.304, Chapter 681 or Chapter 683, Transportation Code and related statutes concerning the improper stopping, standing, or parking of a vehicle (e.g., parking in an intersection, parking within 15 feet of a fire hydrant, parking where an official sign prohibits parking). NOTE: Report civil violations of parking or stopping ordinances in the Civil Section of the report.

City Ordinance. Cases involving violations of traffic or parking-related ordinances enacted by municipalities.

NON-TRAFFIC MISDEMEANORS

Cases not involving traffic or parking violations for which the maximum punishment does not involve confinement in jail or prison.

Penal Code. Cases involving laws enacted by the Texas Legislature that are set out in the Penal Code (e.g., disorderly conduct, public intoxication, theft of property valued at less than $50). NOTE: Include Failure to Appear cases here.

Other State Law. Cases involving laws enacted by the Texas Legislature that are set out in statutes other than the Penal Code (e.g., Alcoholic Beverage Code, Education Code, Health and Safety Code, Human Resources Code, Occupations Code, Water Code, etc.). NOTE: Include Violation of Promise to Appear cases here.

City Ordinance. Cases involving ordinances enacted by municipalities (e.g., building codes, zoning laws, dog ordinances). Ordinance violations involving litter, fire safety, zoning, public health, and sanitation are punishable by fines only, up to a maximum of $2,000. Punishment for violation of other types of city ordinances is limited to fines only, not to exceed $500.

NOTES:

Report only those cases over which the court exercises jurisdiction.

 Include all criminal juvenile/minor cases and parent contributing to nonattendance cases, which are also reported in the Juvenile/Minor Activity Section.

 Matters handled by the judge as a magistrate (e.g., emergency protective orders, administration of warnings to adults or juveniles, search warrants, arrest warrants, property hearings) must not be included in this section, unless the court has jurisdiction over the case and the case is filed in the court.

Line 1. CASES PENDING FIRST OF MONTH (Sum of Lines 1a and 1b.)

Report all misdemeanor cases previously filed in which a judgment had not been entered at the beginning of the month.

These figures should be the same as those reported for Cases Pending End of Month (Lines 12a and 12b) on the prior month’s report. If the number of cases pending at the first of the month does not equal the number of cases pending at the end of the previous month, a docket adjustment must be entered. A docket adjustment is the difference between the number of cases pending at the end of the previous month and the number of cases pending at the beginning of the current month.

Example:

If the number of cases pending at the end of the month is larger than the number pending at the beginning of the current month, enter a negative number in the appropriate blank. For example, if 900 Penal Code cases were pending at the end of April but 890 were pending as of May 1, "-10" (900 - 10 = 890) should be entered in the docket adjustment line under Penal Code in the report for May.

Note: OCA staff will calculate and enter the docket adjustment(s) for reports submitted on paper.

Line 1a. Active Cases Report the number of cases in which a judgment had not been entered that were active at the beginning of the month.

“Active cases” are cases awaiting entry of a judgment that the court can move to adjudication (entry of a judgment).

Line 1b. Inactive Cases Report the number of cases in which a judgment had not been entered at the beginning of the month that had been classified as inactive (cases in which further court proceedings/activities could not continue).

(See Line 11—Placed on Inactive Status for definition of an inactive case.)

Line 2. NEW CASES FILED DURING MONTH Report the number of new, original misdemeanor cases filed for each case category. Include all new cases filed this month, even if a judgment was entered in the case this month.

Line 3. CASES REACTIVATED Report the number of cases in which a judgment had not been entered that had previously been placed in an inactive pending status, but for which further court proceedings and activities can now be resumed so that a judgment may be entered in the case.

This category includes:

 Cases in which the defendant was apprehended o and posted bond to appear at court or o was arraigned and magistrated;  Cases in which the warrant was returned unexecuted, but the case is being reactivated for dismissal due to the statute of limitations expiring or because the defendant is deceased;  Cases that had been reported to the OmniBase (Texas Department of Public Safety) program, to the Scofflaw program (Texas Department of Motor Vehicles), to the Nonresident Violator Compact Program, or to a collections agency for failure to appear: o That were reactivated because the defendant appeared and the case was set for an appearance or trial, o That were reactivated because the defendant submitted a guilty or nolo plea to the court, whether or not the fine was paid; o That were reactivated because the defendant submitted a payment or other amount without a plea being entered (see definition in Line 6—Uncontested Dispositions); o That were reactivated because the case was dismissed; and  Cases in which the proceedings were suspended due to a question of mental illness or mental retardation: o That were reactivated after an examination for competency to stand trial; o That were reactivated after the court or a jury decided that the defendant was not committable for temporary or extended mental health services and the defendant was found competent to stand trial; or o That were reactivated after the defendant’s completion of temporary or extended inpatient mental health treatment.

NOTES:  Reactivated cases are reported under the same offense reported when the original case was filed.  Reactivated cases are reported even if a judgment was also entered in the case during the month.  An inactive case MUST be reactivated before it can be counted as disposed.

Line 4. ALL OTHER CASES ADDED Report the number of cases added to the docket in a manner other than the filing of a new, original case. Include cases in which:  a motion for new trial is granted in a case that had previously been reported as disposed of;  a case is remanded for further proceedings; and  other similar matters which are not reported elsewhere.

Line 5. TOTAL CASES ON DOCKET The sum of active cases pending at the beginning of the month; new cases filed; cases reactivated; and all other cases added equals Total Cases on Docket.

Lines 1a + 2 + 3 + 4 = 5

DISPOSITIONS:

For purposes of this report, a disposition is reported when the case is adjudicated (the judge signs the final judgment or a sentence is otherwise imposed). The date of disposition is the date the judgment was signed.

Report only 1 disposition (final judgment) per case.

Line 6. DISPOSITIONS PRIOR TO COURT APPEARANCE OR TRIAL A. Uncontested Dispositions

Report the number of cases in which a guilty or nolo contendere plea was entered without a plea being entered in open court. The case is reported when judgment is entered, whether or not the fine and other obligations of the case have been met.

Include:

 Cases in which the defendant submitted a guilty or nolo contendere plea without appearing before a judge in open court; and

 Payment of a fine or other amount accepted by the court without a plea being entered. Per Code of Criminal Procedure, Art. 27.14(c):

In a misdemeanor case for which the maximum possible punishment is by fine only, payment of a fine or an amount accepted by the court constitutes a finding of guilty in open court as though a plea of nolo contendere had been entered by the defendant and constitutes a waiver of a jury trial in writing.

Include payments submitted by mail, by electronic means, or in person. This includes cases in which full payment is made, a partial payment is made, or a payment plan is arranged.

B. Cases Dismissed by Prosecution

Report the number of cases that were dismissed pursuant to a motion by a prosecutor (or dismissed by the court without a motion from the prosecutor) before the defendant’s court appearance or trial or without the defendant appearing in court. Cases dismissed at a defendant’s court appearance or trial should be reported on Line 7C.

o Failure to secure child in child passenger safety seat system (T.C., Sec. 545.4121), or o Failure to display valid motor vehicle inspection certificate (T.C., Sec. 548.602).

o Cases dismissed for lack of jurisdiction: o case was filed in wrong court (e.g., Class B misdemeanor, wrong jurisdiction) or o case has an invalid charge.

o Miscellaneous reasons for dismissal: o complaint filed by school district did not comply with requirements of Section 25.0915(b), Education Code (for failure to attend cases filed prior to Sept. 1, 2015); o probable cause exists that child has mental illness, disability or lack of capacity; o interest of justice; o plea bargaining; o insufficient evidence; o complaining witness is uncooperative; o case is being refiled; o case was filed without contact information; o passage of time/statute of limitations; o deceased, etc.

NOTE: Do not include dismissals after completion of a driving safety course, after deferred disposition, or any other compliance dismissal. Report these in Line 8.

Line 7. DISPOSITIONS AT COURT APPEARANCE OR TRIAL A. CONVICTIONS 1) Guilty Plea or Nolo Contendere

Include:

 Cases in which a guilty or nolo contendere plea was entered in open court. Include:  cases in which the defendant pleaded guilty or nolo contendere in open court and  cases in which the defendant pleaded guilty or nolo contendere after the start of a trial;

 Cases in which the defendant pleaded guilty or nolo contendere while in jail;

 Cases disposed of by jail credit.

 Cases in which the defendant entered a guilty or nolo contendere plea as part of a driver’s safety program or deferred disposition agreement, failed to meet the requirements, and was ultimately convicted of the offense.

 Cases in which the judge forfeited a cash bond for the fine and court costs if the defendant entered a written and signed plea of nolo contendere and waiver of jury trial and failed to appear according to the terms of release (Article 45.044, Code of Criminal Procedure).

The case is reported when the final judgment is entered, whether or not the fine and other obligations of the case have been met.

2) By the Court Report the number of cases in which the defendant pleaded not guilty and was tried and found guilty by the judge.

Also include cases in which the defendant was found guilty by the judge but was sentenced to deferred disposition, the defendant failed to meet the requirements of the deferral, and was ultimately convicted of the offense.

3) By the Jury Report the number of cases in which the defendant pleaded not guilty and was tried and found guilty by a jury.

B. ACQUITTALS 1) By the Court Report the number of cases in which the defendant was tried and found not guilty by the judge.

2) By the Jury Report the number of cases in which the defendant was tried and found not guilty by the jury.

C. CASES DISMISSED BY PROSECUTION Report the number of cases that were dismissed during the month pursuant to a motion by a prosecutor (or dismissed by the court without a motion from the prosecutor) at a defendant’s court appearance or trial, including pre-trials.

Examples include: o Motions to dismiss based on defendant providing evidence of defense to prosecution (proof of valid driver’s license, proof of vehicle inspection certificate,; child passenger safety seat defense): o Failure to display driver’s license (T.C., Sec. 521.025), o Failure to have commercial license in possession while operating a commercial motor vehicle (T.C., Sec. 522.011), o Failure to secure child in child passenger safety seat system (T.C., Sec. 545.4121), or o Failure to display valid motor vehicle inspection certificate (T.C., Sec. 548.602). o Cases dismissed for lack of jurisdiction: o case was filed in wrong court (e.g., Class B misdemeanor, wrong jurisdiction) or o case has invalid charge.

o dismissal of parent contributing to nonattendance authorized by Code of Criminal Procedure, Art. 45.0531 (authorized on or after Sept. 1, 2015); o interest of justice; o plea bargaining; o insufficient evidence; o complaining witness is uncooperative; o case is being refiled; o case was filed without contact information; o passage of time/statute of limitations; o deceased, etc.

Also include cases in which the judge grants a defendant’s motion to quash complaint (to set aside and dismiss).

Line 8. COMPLIANCE DISMISSALS Report the number of cases dismissed during the month due to completion of a court-ordered program and/or satisfaction of other requirements. Report all other dismissals on Line 6B or Line 7C.

NOTES:  Do not report a case as dismissed until all requirements for dismissal have been met and the charge is dismissed.  A case must be reported in only one category below.

A. After Driving Safety Course Report the number of cases that were dismissed during the month because the defendant completed a driving safety course or motorcycle operator training and safety course for a state traffic law offense as provided by Code of Criminal Procedure, Art. 45.0511.

B. After Deferred Disposition Report the number of cases that were dismissed during the month because:  the defendant successfully completed a deferred sentence as provided by Code of Criminal Procedure, Art. 45.051. or  in failure to attend school cases (for failure to attend cases filed prior to Sept. 1, 2015) as provided by Code of Criminal Procedure, Art. 45.054, (1) the court finds that the individual has successfully complied with the conditions imposed on the individual by the court; or (2) the individual presents to the court proof that the individual has obtained a high school diploma or a high school equivalency certificate. C. After Teen Court Report the number of cases that were dismissed during the month because the defendant successfully completed a teen court program as provided by Code of Criminal Procedure, Art. 45.052.

D. After Tobacco Awareness Course Report the number of cases that were dismissed during the month because the defendant successfully completed an e-cigarette and tobacco awareness course as provided by Health and Safety Code, Sec. 161.253.

E. After Treatment for Chemical Dependency Report the number of cases that were dismissed during the month because the defendant successfully completed a court-ordered treatment program for chemical dependency (abuse of alcohol or a controlled substance), as provided by Code of Criminal Procedure, Art. 45.053, and Health and Safety Code, Ch. 462.

Note: The dismissal authorized by Code of Criminal Procedure, Art. 45.053, does not include an expense fee that may be collected at the end of a deferral. If the expense fee is being charged, report the case as a dismissal After Deferred Disposition.

F. After Proof of Financial Responsibility Report the number of cases that were dismissed during the month because the defendant produced evidence of financial responsibility as provided by Transportation Code, Sec. 601.193.

G. All Other Transportation Code Compliance Dismissals Report the number of cases that were dismissed during the month because the defendant successfully produced evidence of compliance with requirements other than those listed in the previous compliance dismissal categories. Applicable offenses include:

 Failing to display license plate on front and rear of vehicle (T.C., Sec. 504.943(d));  Failing to display registration insignia on vehicle (T.C., Sec. 502.473(d));  Driving with an expired motor vehicle registration (T.C., Sec. 502.407(b));  Attaching or displaying a registration insignia for another registration period (T.C., Sec. 502.475(c);

 Attaching or displaying a license plate that is obscured or is for another registration period (T.C., Sec. 504.945(d);

 Driving with expired driver’s license (T.C., Sec. 521.026) or commercial driver’s license or permit (T.C., Sec. 522.011);

 Expired disabled placard (T.C. 681.013);  Fails to give notice of change of address or name (T.C., Sec. 521.054(d));  Violates special restrictions or endorsements imposed on driver’s license (T.C., Sec. 521.221(d));  Operates vehicle that is not properly equipped (T.C., Sec. 547.004(c)); and  Driving with an expired inspection certificate (T.C., Sec. 548.605).

Line 9. ALL OTHER DISPOSITIONS Report any judgments not clearly identifiable as any of the above categories.

Examples include:

 Transfer to juvenile court (mandatory or discretionary) (Family Code, Sec. 51.08(b)(1) or (2)) or  Probationary or compliance dismissals that do not fit into one of the categories above.

Line 10. TOTAL CASES DISPOSED

Report the total number of cases in which a judgment was entered during the month. Total Cases Disposed equals the sum of Lines 6, 7, 8 and 9.

Line 11. PLACED ON INACTIVE STATUS Report the number of cases in which a judgment had not been entered that were placed in an inactive pending status because further court proceedings and activities could not continue.

This category includes:  Cases in which a directive to apprehend or warrant of arrest has been issued;  Cases reported to the OmniBase (Texas Department of Public Safety) program, to the Scofflaw program (Texas Department of Motor Vehicles), or to a collections agency for failure to appear;  Cases in which a defendant is being held elsewhere on state or federal charges;  Cases stayed due to a question of mental illness or mental retardation;  Cases stayed while a defendant undergoes temporary or extended inpatient mental health treatment; and  Cases in which the defendant is otherwise unavailable for adjudication.

Line 12. CASES PENDING END OF MONTH (Sum of Lines 12a and 12b.)

Report the total number of cases previously filed in which a judgment had not been entered at the end of the month.

Line 12a. Active Cases Report the number of cases that were classified as active and awaiting entry of a judgment at the end of the month. Line 5 minus the sum of Lines 10 & 11 = Line 12a

Line 12b. Inactive Cases Report the number of cases in which a judgment had not been entered at the end of the month that had been classified as inactive (cases in which further court proceedings/activities could not continue).

Line 1b minus Line 3 plus Line 11 = Line 12b

Line 13. SHOW CAUSE HEARINGS HELD Report the number of show cause or contempt hearings held pursuant to Art. 45.050 (juveniles), 45.051(c-1) (deferred disposition), or 45.0511(i) (driver’s safety), Code of Criminal Procedure, for failure to comply with the requirements for deferred disposition or driver’s safety dismissal.

Include cases in which the defendant failed to appear and the judge imposed the fine. Under this situation, the case is also to be reported as disposed in Line 7.A.1—Convictions—Guilty Plea or Nolo Contendere.

If the case was set for a show cause hearing, but the case was disposed of before the show cause hearing (i.e., the defendant appeared at the clerk window with or mailed in the compliance documentation, paid the case in full, or set up a payment plan), the case is not to be reported in the

Show Cause Hearings Held line (Line 13—Show Cause Hearings Held). Report the case in the appropriate disposition category.

Line 14. CASES APPEALED Report the number of criminal cases for which an appeal from the final judgment of the court was filed.

A. After Trial

Report the number of cases appealed following a trial before the court or jury.

B. Without Trial

Report the number of cases appealed following a plea of guilty or no contest.

CIVIL/ADMINISTRATIVE SECTION

A civil case, unlike a criminal case, does not depend on the number of persons involved. For the purpose of these reports, a single civil case is counted and reported when:

1. A civil complaint or citation is filed (no matter how many parties are involved), or

2. An original petition is filed (no matter how many parties are involved).

CIVIL CASES

Cases involving all complaints, citations or suits within the civil or administrative jurisdiction of the municipal court, including red light camera, vehicle parking and stopping (Transportation Code, Ch. 682), dangerous dog, substandard building, water conservation, and abandoned motor vehicle cases, as well as any other cases involving the enforcement of health and safety and nuisance abatement ordinances. Also include bond forfeiture (nisi) proceedings conducted pursuant to Code of Criminal Procedure, Article 22.02.

At this time, the Civil Section of the report cannot adequately capture information on truancy cases. Judicial Council will be re-evaluating all information being collected from the trial courts on the monthly court activity reports in the near future, and reporting of additional information on truancy cases will be addressed at that time.

Line 1. CASES PENDING FIRST OF MONTH (Sum of Lines 1a and 1b.)

Report all civil or administrative cases previously filed in which a judgment had not been entered at the beginning of the month. These figures should be the same as those reported for Cases Pending End of Month (Lines 14a and 14b) on the prior month’s report. If the number of cases pending at the first of the month does not equal the number of cases pending at the end of the previous month, a docket adjustment must be entered. A docket adjustment is the difference between the number of cases pending at the end of the previous month and the number of cases pending at the beginning of the current month.

Example:

If the number of cases pending at the end of the month is smaller than the number pending at the beginning of the current month, enter a positive number in the appropriate blank. For example, if 825 civil cases were pending at the end of April but 830 were pending as of May 1, "5" (825 + 5 = 830) should be entered in the docket adjustment line under Civil Cases in the report for May. If the number of cases pending at the end of the month is larger than the number pending at the beginning of the current month, enter a negative number in the appropriate blank. For example, if 900 civil cases were pending at the end of April but 890 were pending as of May 1, "-10" (900 - 10 = 890) should be entered in the docket adjustment line under Civil Cases in the report for May. Note: OCA staff will calculate and enter the docket adjustment(s) for reports submitted on paper.

Line 1a. Active Cases Report the number of cases in which a judgment had not been entered that were active at

the beginning of the month.

“Active cases” are cases awaiting entry of a judgment that the court can move to adjudication (entry of a judgment).

(See Line 14—Placed on Inactive Status for definition of an inactive case.)

Line 2. NEW CASES FILED DURING THE MONTH Report the total number of new cases filed during the month. Include all new cases filed this month, even if a judgment was entered in the case this month.

Line 3. CASES REACTIVATED Report the number of cases that had previously been placed in an inactive pending status, but for which further court proceedings and activities can now be resumed so that a judgment may be entered in the case. Examples include:  Reinstated cases;  Cases returned from arbitration;  Cases in which a bankruptcy stay has been lifted; and  Cases removed from abatement for any other reason.

NOTE: Reactivated cases are reported even if a judgment was also entered in the case during the month.

Line 4. ALL OTHER CASES ADDED Report the number of cases added to the docket in a manner other than the filing of a new, original case. Include cases in which: (1) a motion for new trial is granted in a case that had previously been reported as disposed of and (2) other similar matters which are not reported elsewhere.

Line 5. TOTAL CASES ON DOCKET To calculate the Total Cases on Docket, add the active cases pending at the beginning of the month, new cases filed, other cases reaching docket, and reactivated cases. Lines 1a + 2 + 3 + 4 = Line 5

DISPOSITIONS:

For purposes of this report, a disposition is reported when the case is adjudicated (the judge or hearing officer signs the final judgment). The date of disposition is the date the judgment was signed.

Report only 1 disposition (final judgment) per case.

Line 6. UNCONTESTED CIVIL FINES OR PENALTIES Report the number of cases in which the defendant paid a civil fine or penalty without appearing for open court or an administrative hearing (e.g., paying citation for civil parking offense). Include payments submitted by mail, by electronic means, or in person.

Line 7. DEFAULT JUDGMENTS Report the number of cases in which the judgment was reached by default—the defendant, though served, failed to appear and answer, and judgment by default was granted in favor of the plaintiff.

Line 8. AGREED JUDGMENTS Report the number of cases in which the court entered a judgment based upon the mutual agreement of the parties involved in the suit.

Line 9. TRIAL OR HEARING BY JUDGE OR HEARING OFFICER Report the number of cases in which the decision was reached after a trial or hearing by the judge or a hearing officer, without a jury.

Line 10. TRIAL BY JURY Report the number of cases in which a judgment was entered after trial based on the verdict of a jury.

Line 11. CASES DISMISSED FOR WANT OF PROSECUTION Report the number of cases dismissed because the plaintiff or petitioner did not appear or otherwise made no effort to pursue his case.

Line 12. ALL OTHER DISPOSITIONS Report any dispositions not clearly identifiable as any of the above categories.

Line 13. TOTAL CASES DISPOSED Report the total number of cases disposed during the month. Total Cases Disposed equals the sum of Lines 6, 7, 8, 9, 10, 11 and 12.

Line 14. PLACED ON INACTIVE STATUS Report the number of cases in which a judgment had not been entered that were placed in an inactive pending status because further court proceedings and activities could not continue.

This category includes, but is not limited to:  Cases ordered to arbitration;  Cases in which a notice or suggestion of bankruptcy is filed;  Cases delayed due to the Soldiers’ & Sailors’ Civil Relief Act;  Cases in which a suggestion of death is filed; and  All other cases ordered abated by a judge.

Line 15. CASES PENDING END OF MONTH (Sum of Lines 15a and 15b.) Line 15a. Active Cases Report the number of cases in which a judgment had not been entered that were classified as active and awaiting entry of a judgment at the end of the month.

Line 5 minus the sum of Lines 13 & 14 = Line 15a

Line 15b. Inactive Cases Report the number of cases in which a judgment had not been entered at the end of the month that had been classified as inactive (cases in which further court proceedings/activities could not continue). Line 1b minus Line 3 plus Line 14 = Line 15b

Line 16. CASES APPEALED Report the number of cases for which an appeal from the final judgment of the court was filed.

A. After Trial B. Without Trial

JUVENILE/MINOR ACTIVITY

NOTE: Activity reported in Lines 1 through 16 below should also be reported, where appropriate, in the Criminal Section.

Line 1. TRANSPORTATION CODE CASES FILED Report the number of cases filed in which the minor (under 17 years of age) was charged with an offense listed under Transportation Code, Section 729.001.

Line 2. NON-DRIVING ALCOHOLIC BEVERAGE CODE CASES FILED Report the number of cases filed in which a minor (under 21 years of age) was charged with an offense under the Alcoholic Beverage Code that did not involve driving (e.g., Sec. 106.02, Purchase of Alcohol by a Minor; Sec. 106.025, Attempt to Purchase Alcohol by a Minor; Sec. 106.04, Consumption of Alcohol by a Minor; Sec. 106.05, Possession of Alcohol by a Minor; and Sec. 106.07, Misrepresentation of Age by a Minor).

Line 3. DRIVING UNDER THE INFLUENCE OF ALCOHOL CASES FILED Report the number of cases filed in which a minor (under 21 years of age) was charged with an offense under Alcoholic Beverage Code, Sec. 106.041, Driving Under the Influence of Alcohol by a Minor.

Line 4. DRUG PARAPHERNALIA CASES FILED Report the number of cases filed in which a minor (under 18 years of age) was charged with an offense under Health and Safety Code, Sec. 481.125(a), Possession of Drug Paraphernalia.

Line 5. TOBACCO CASES FILED Report the number of cases filed in which a minor (under 18 years of age) was charged with an offense under Health and Safety Code, Sec. 161.252, Possession, Purchase, Consumption or Receipt of Cigarettes, E-Cigarettes, or Tobacco Products by Minors Prohibited. This includes the offense of displaying false proof of age in order to obtain possession of, purchase, or receive a cigarette, e- cigarette, or tobacco product.

Line 6. FAILURE TO ATTEND SCHOOL TRUANCY CASES FILED Report the number of cases filed for failure to attend school offenses truant conduct under Education Code, Sec. 25.094 Family Code Sec. 65.003(a). Include complaints originally filed as truancy petitions but refiled pursuant to Family Code, Sec. 54.021(C).

Line 7. EDUCATION CODE CASES FILED (EXCEPT FAILURE TO ATTEND) Report the number of cases filed in which the child was charged with an offense provided in the Education Code. other than Sec. 25.094, Failure to Attend. Examples of other offenses under the Education Code are Sec. 37.102, Rules (Enacted by School Board); Sec. 37.107, Trespass on School Grounds; Sec. 37.122, Possession of Intoxicants on Public School Grounds; Sec. 37.124, Disruption of Classes; and Sec. 37.126, Disruption of Transportation.

Line 8. VIOLATION OF LOCAL DAYTIME CURFEW ORDINANCE CASES FILED Report the number of cases in which a person under 17 years of age was charged with violation of a local daytime curfew ordinance adopted under Local Government Code, Sec. 341.905 or Sec. 351.903.

Note: Only cases involving violation of a “daytime” curfew should be reported; cases involving violations of a nighttime curfew should not be reported here.

Line 9. ALL OTHER NON-TRAFFIC, FINE-ONLY CASES FILED Report the number of cases in which a person under 17 years of age was charged with a non-traffic offense punishable only by a fine that does not fall within any of the other categories above (Lines 1 through 8).

Line 10. TRANSFER TO JUVENILE COURT a. Mandatory Transfer Report the number of cases in which the court waived its original jurisdiction and referred a person under 17 years of age to juvenile court pursuant to: o Family Code Sec. 51.08(b)(1)(A): complaint alleged violation of offense under Penal Code Sec. 43.261 (Electronic Transmission of Certain Visual Material Depicting Minor); o Family Code Sec. 51.08(b)(1)(B): the child had previously been convicted of: A) two or more misdemeanors punishable by fine only other than a traffic offense; B) two or more violations of a penal ordinance of a political subdivision other than a traffic offense; or C) one or more of each of the types of misdemeanors described in A) or B); or o Family Code Sec. 51.08(f): court had previously dismissed a complaint because of determination relating to child’s mental illness, disability or lack of capacity.

Note: A court that has implemented a juvenile case manager program under Code of Criminal Procedure, Art. 45.056, may, but is not required to, waive its original jurisdiction. Courts in this situation should report all transfers to juvenile court in the Discretionary Transfer category.

b. Discretionary Transfer Report the number of cases in which the court waived its original jurisdiction and referred a person under 17 years of age to juvenile court pursuant to Family Code, Sec. 51.08(b)(2).

Line 11. ACCUSED OF CONTEMPT AND REFERRED TO JUVENILE COURT (DELINQUENT CONDUCT) Report the number of incidents in which the court refers a person under 17 years of age to juvenile court for delinquent conduct because the child failed to obey an order of the court under circumstances that would constitute contempt of court. See Code of Criminal Procedure, Art. 45.050(c)(1), and Family Code, Sec. 65.251

Line 12. HELD IN CONTEMPT BY CRIMINAL COURT (FINED AND/OR DENIED DRIVING PRIVILEGES) Report the number of incidents in which the court holds a child in contempt, fines a child, or denies the child driving privileges because the child failed to obey an order of the court under circumstances that would constitute contempt of court. See Code of Criminal Procedure, Art. 45.050(c)(2) and Family Code Sec. 65.251.

Do not include license suspensions required by Alcoholic Beverage Code, Sec. 106.115(d), for failure to complete an alcohol awareness program or perform the required hours of community service. (Note: These suspensions are reported to the Department of Public Safety on form DIC-15.)

Line 13. JUVENILE STATEMENT MAGISTRATE WARNINGS a. Warnings Administered Report the number of times the judge, as magistrate, gave juveniles charged with Juvenile Justice Code (Title 3, Family Code) violations official explanations of their right to counsel, right to remain silent, etc. If at the same time the judge also took the juvenile’s statement or confession, report this event under Statements Certified.

b. Statements Certified Report the number of juvenile statements certified by the judge as required by Family Code, Sec. 51.095(a)(1)(D).

Line 14. DETENTION HEARINGS HELD Report the number of juvenile detention hearings conducted by the judge during the month while acting as a substitute juvenile judge in a magistrate capacity in accordance with Family Code, Section 54.01.

Line 15. ORDERS FOR NONSECURE CUSTODY ISSUED Report the number of orders for nonsecure custody issued during the month for juveniles in accordance with Code of Criminal Procedure, Art. 45.058.

Line 16. PARENT CONTRIBUTING TO NONATTENDANCE CASES FILED Report the number of cases in which the parent of a child was charged with contributing to nonattendance of school under Education Code, Sec. 25.093.

ADDITIONAL COURT ACTIVITY The lower portion of the monthly report form is designed to collect information: 1) reflecting the activity of municipal judges acting in the capacity of a magistrate; or 2) identified by the Texas Judicial Council as additional information that is important to collect from municipal courts. Line 1. MAGISTRATE WARNINGS NUMBER GIVEN Report the number of times during the month that the judge, as a magistrate, gave adult defendants charged with an offense an official explanation of their right to counsel, right to remain silent, etc., as provided by Code of Criminal Procedure, Art. 15.17, for the following offenses: A. Class C Misdemeanors B. Class A and B Misdemeanors C. Felonies

If the defendant was charged with more than one offense in a single incident, count only 1 magistration. If the multiple offenses involved more than 1 level of case category listed above, report the 1 magistration under the category of the most serious offense alleged.

If the defendant was magistrated for charges involving multiple, separate incidents, count a magistration for each separate incident. If an incident involved multiple charges, report only 1 magistration for that incident. If the multiple offenses involved more than 1 level of case category listed above, report the 1 magistration under the category of the most serious offense alleged.

NUMBER OF REQUESTS FOR COUNSEL Report the number of requests for appointment of counsel that were made by defendants during the magistrate warnings reported above. A. Class A and B Misdemeanors B. Felonies

If the defendant was charged with more than one offense in a single incident, count only 1 request for counsel. If the multiple offenses involved more than 1 level of case category listed above, report the 1 request for counsel under the category of the most serious offense alleged.

If the defendant was magistrated for charges involving multiple, separate incidents, count a request for counsel for each separate incident. If an incident involved multiple charges, report only 1 request for counsel for that incident. If the multiple offenses involved more than 1 level of case category listed above, report the 1 request for counsel under the category of the most serious offense alleged.

NOTE: Code of Criminal Procedure, Art. 15.17(e), requires: In each case in which a person arrested is taken before a magistrate as required by Subsection (a), a record shall be made of: (1) the magistrate informing the person of the person's right to request appointment of counsel; (2) the magistrate asking the person whether the person wants to request appointment of counsel; and (3) whether the person requested appointment of counsel.

Line 2. ARREST WARRANTS ISSUED A. Class C Misdemeanors Report the number of arrest warrants issued by the court during the month in Class C misdemeanor cases. B. Class A and B Misdemeanors Report the number of arrest warrants issued by the court during the month in Class A or B misdemeanor cases. C. Felonies Report the number of arrest warrants issued by the court during the month in felony cases.

Line 3. CAPIASES PRO FINE ISSUED Report the number of capiases pro fine issued during the month, pursuant to Code of Criminal Procedure, Art. 45.045, for a defendant’s failure to pay fines and costs after judgment and sentence.

Line 4. SEARCH WARRANTS ISSUED Report the number of search warrants the judge, as a magistrate, issued during the month that allowed law enforcement officers to search a particular premises or person.

Line 5. WARRANTS FOR FIRE, HEALTH AND CODE INSPECTIONS ISSUED Report the number of search warrants issued, pursuant to Code of Criminal Procedure, Art. 18.05, to a fire marshal, health officer, or code enforcement official of the state or of any county, city, or other political subdivision for the purpose of allowing the inspection of any specified premises to determine the presence of a fire or health hazard or unsafe building condition or a violation of any fire, health, or building regulation, statute, or ordinance.

Line 6. EXAMINING TRIALS CONDUCTED Report the number of preliminary hearings on felony cases conducted by the judge during the month to determine whether, upon the basis of the evidence produced at such a hearing, the defendant should be bound over to the grand jury or should be discharged from custody (Code of Criminal Procedure, Art. 16.01).

Line 7. EMERGENCY MENTAL HEALTH HEARINGS HELD Report the number of hearings for emergency mental health commitments the judge held during the month as provided by Health and Safety Code, Sec. 573.012.

Line 8. MAGISTRATE’S ORDERS FOR EMERGENCY PROTECTION Report the number of emergency protection orders issued by the judge, as a magistrate, under Code of Criminal Procedure, Art.17.292.

Line 9. MAGISTRATE’S ORDERS FOR IGNITION INTERLOCK DEVICE Report the number of orders issued by the judge, as a magistrate, under Code of Criminal Procedure, Art. 17.441, requiring a defendant to have an ignition interlock device installed in his or her vehicle

and not operate any motor vehicle unless it is equipped with that device.

Line 10. ALL OTHER MAGISTRATE’S ORDERS ISSUED REQUIRING CONDITIONS FOR RELEASE ON BOND Report the number of other orders issued by the judge, as a magistrate, requiring conditions for release on bond under Code of Criminal Procedure, Article 17, except for the Magistrate’s Orders for Ignition Interlock Device reported in Line 8. Include:  Conditions related to victim or community safety (Art. 17.40);  Conditions where a child is the alleged victim (Art. 17.41);  Home curfew and electronic monitoring (Art. 17.43);  Home confinement, electronic monitoring, and drug testing (Art. 17.44);  AIDS and HIV instruction (Art. 17.45);  Conditions for a defendant charged with stalking (Art. 17.46);  Conditions requiring submission of a specimen (Art. 17.47); and  Conditions for defendant charged with offense involving family violence (Art. 17.49).

Line 11. DRIVER’S LICENSE DENIAL, SUSPENSION OR REVOCATION HEARINGS HELD Report the number of hearings held by the judge during the month pursuant to Transportation Code, Sec. 521.300, to determine whether or not there is enough evidence to justify suspension or revocation of a person’s driver’s license by the Department of Public Safety for habitual violations or inability to safely operate a motor vehicle.

NOTE: This does not apply to license suspensions for Alcoholic Beverage Code, tobacco, failure to attend school, or similar offenses involving juveniles/minors.

Line 12. DISPOSITION OF STOLEN PROPERTY HEARINGS HELD Report the number of hearings held by the judge during the month pursuant to Code of Criminal Procedure, Ch. 47, to determine the right to possession of stolen property.

Line 13. PEACE BOND HEARINGS HELD Report the number of hearings held by the judge during the month to determine whether or not a peace bond should be issued per Code of Criminal Procedure, Art. 7.03, regardless of when the complaint was filed, or when (or whether) a warrant was issued, or an order requiring the peace bond (if any) was entered.

Since the judge handles peace bonds as a magistrate, rather than as the judge of the municipal court, peace bonds should not be counted in another section of the report.

Line 14. CASES IN WHICH FINE AND COURT COSTS ARE SATISFIED BY COMMUNITY SERVICE Report the number of cases in which community service or a tutoring program was completed to discharge a fine and/or court costs as provided by Code of Criminal Procedure, Art. 45.049 or 45.0492. Report these cases when the fine and court costs have been satisfied in full.

NOTE: “Court costs” includes fees (e.g., judicial support fee, jury reimbursement fee, etc).

Do not include cases in which community service was mandatory for the offense and was ordered as part of the sentence (e.g., alcohol and tobacco related offenses).

A. Partial Satisfaction Report the number of cases in which the community service partially satisfied the fine or court costs. B. Full Satisfaction Report the number of cases in which the community service fully satisfied the fine or court costs.

Line 15. CASES IN WHICH FINE AND COURT COSTS SATISFIED BY JAIL CREDIT Report the number of cases in which jail credit was applied to partially or fully discharge a fine or court costs. Report these cases when the fine and court costs have been satisfied in full, even if the defendant is on a deferral and other obligations in the case have not yet been satisfied.

NOTE: “Court costs” includes fees (e.g., judicial support fee, jury reimbursement fee, etc).

Line 16. CASES IN WHICH FINE AND COURT COSTS WAIVED FOR INDIGENCY Report the number of cases in which a fine or court costs were partially or fully waived for indigency during the month, including waivers because the defendant was a child at the time of the offense (Code of Criminal Procedure, Art. 45.0491).

Line 17. AMOUNT OF FINES AND COURT COSTS WAIVED FOR INDIGENCY Report the total amount of fines and court costs waived during the month for indigency, including waivers because the defendant was a child at the time of the offense (Code of Criminal Procedure, Art. 43.091). Report the amount waived even if the defendant is on a deferral and other obligations in the case have not yet been satisfied.

Line 18. TOTAL FINES, COURT COSTS AND OTHER AMOUNTS COLLECTED Report the amount of court-related money collected by the court during the month. Include fines, fees, court costs; Omnibase fees1; forfeited bonds; fees for copies, etc. Do not include amounts retained by a private collections agency for service fees2; amounts assessed; jail credit; community service or tutoring program credit; or amounts collected that are not related to court operations (e.g., overdue library book fees; parking permits, licenses or other parking revenue not related to parking violations).

A. Retained by City Report the amount of money collected during the month that was deposited into city funds. Include the city’s portion of any fee that is divided by statute between the city and the State. Do not include amounts may be eventually retained by the city or remitted to the State but rebated

1 Authorized by Transportation Code, Ch. 706. The OmniBase program is not considered a collections contract. It is a contract with the Department of Public Safety to provide information necessary for the department to deny renewal of drivers’ licenses. 2 Fees authorized by Code of Criminal Procedure, Art. 103.0031.

back to the city as a service fee if the city is compliant in reporting to the Comptroller and is in compliance with any required Collections Improvement Program (if relevant).

Examples:

 Court costs adopted by city ordinance:  a fee not to exceed $25 for executing certain warrants (Article 45.203, C.C.P.);  building security fee;  technology fee;  a juvenile case manager fee; and  service fees for collection of fines, costs, and bonds by credit card or electronically  Special expense fee for granting deferred disposition or driving safety course, or a $10 administrative fee for granting a drivers safety course  Dismissal fees  City’s portion of State Judicial Support Fee (10 percent of fee)  Court costs and fees collected for the Child Safety Fund  Court cost for truancy prevention and diversion fund  Traffic fund court cost (Section 542.403, T.C.)  Arrest fee (Art. 102.011(a), C.C.P.)  Warrant fee  Teen Court fees  Witness, defendant, parents of a juvenile, or jury summons fees  Jury fee  Expunction fee  City’s portion of restitution fee  City’s portion of time payment fee  City’s portion of over gross weight violation court costs and fines  City’s portion of excess motor carrier fines  City’s portion of administrative fee for OmniBase program  Travel costs to convey prisoner or to execute process  Insufficient funds fees (bad/returned checks)  Fees for copies, etc.

B. Remitted to State Report the amount of money collected during the month that is designated to be remitted to the State. Include amounts that may be eventually retained by the city or remitted to the State but rebated back to the city as a service fee if the city is compliant in reporting to the Comptroller and is in compliance with any required Collections Improvement Program (if relevant).

Examples:

 Consolidated Court Cost  State Traffic Fine  State Juror Reimbursement Fee  State Judicial Support Fee  Indigent Defense Representation Fee  State portion of Arrest Fee, if relevant (Art. 102.011(a), C.C.P.)  State portion of Warrant Fee, if relevant

 Driving Record Fee  State’s portion of restitution fee  State’s portion of time payment fee  State’s portion of over gross weight violation court costs and fines  State’s portion of excess motor carrier fines  State’s portion of administrative fee for OmniBase program, etc.

C. Total Report the amount of court-related money collected by the court during the month. Include all amounts reported in A and B above, as well as amounts sent directly to other entities such as school districts, OmniBase, etc.

24 OFFICE OF COURT ADMINISTRATION TEXAS JUDICIAL COUNCIL

OFFICIAL MUNICIPAL COURT MONTHLY REPORT

Month Year

Municipal Court for the City of

Presiding Judge

If new, date assumed office

Court Mailing Address

City , TX Zip

Phone Number

Fax Number

Court's Public Email

Court's Website

THE ATTACHED IS A TRUE AND ACCURATE REFLECTION OF THE RECORDS OF THIS COURT.

Prepared by

Date Phone Number

PLEASE RETURN THIS FORM NO LATER THAN 20 DAYS FOLLOWING THE END OF THE MONTH REPORTED TO:

OFFICE OF COURT ADMINISTRATION P O BOX 12066 AUSTIN, TX 78711-2066

PHONE: (512) 463-1625 FAX: (512) 936-2423 CRIMINAL SECTION

Court Traffic Misdemeanors Non-Traffic Misdemeanors Non- City Other State City Month Year Parking Parking Ordinance Penal Code Law Ordinance 1. Total Cases Pending First of Month:

a. Active Cases

b. Inactive Cases

2. New Cases Filed

3. Cases Reactivated

4. All Other Cases Added

5. Total Cases on Docket (Sum of Lines 1a, 2, 3 & 4) 6. Dispositions Prior to Court Appearance or Trial: a. Uncontested Dispositions (Disposed without appearance before a judge (CCP Art. 27.14)) b. Dismissed by Prosecution 7. Dispositions at Trial: a. Convictions: 1) Guilty Plea or Nolo Contendere

2) By the Court

3) By the Jury b. Acquittals: 1) By the Court

2) By the Jury

c. Dismissed by Prosecution 8. Compliance Dismissals: a. After Driver Safety Course (CCP, Art. 45.0511)

b. After Deferred Disposition (CCP, Art. 45.051)

c. After Teen Court (CCP, Art. 45.052)

d. After Tobacco Awareness Course (HSC, Sec. 161.253)

e. After Treatment for Chemical Dependency (CCP, Art. 45.053)

f. After Proof of Financial Responsibility (TC, Sec. 601.193)

g. All Other Transportation Code Dismissals

9. All Other Dispositions

10. Total Cases Disposed (Sum of Lines 6, 7, 8 & 9)

11. Cases Placed on Inactive Status

12. Total Cases Pending End of Month:

a. Active Cases (Equals Line 5 minus the sum of Lines 10 & 11)

b. Inactive Cases (Equals Line 1b minus Line 3 plus Line 11)

13. Show Cause Hearings Held 14. Cases Appealed: a. After Trial

b. Without Trial

Page 2 CIVIL/ADMINISTRATIVE SECTION

Court

Month Year TOTAL CASES

1. Total Cases Pending First of Month:

a. Active Cases

b. Inactive Cases

2. New Cases Filed

3. Cases Reactivated

4. All Other Cases Added

5. Total Cases on Docket (Sum of Lines 1a, 2, 3 & 4)

DISPOSITIONS

6. Uncontested Civil Fines or Penalties

7. Default Judgments

8. Agreed Judgments

9. Trial/Hearing by Judge/Hearing Officer

10. Trial by Jury

11. Dismissed for Want of Prosecution

12. All Other Dispositions

13. Total Cases Disposed (Sum of Lines 6 through 12) 0

14. Cases Placed on Inactive Status

15. Total Cases Pending End of Month:

a. Active Cases (Equals Line 5 minus the sum of Lines 13 & 14)

b. Inactive Cases (Equals Line 1b minus Line 3 plus Line 14)

16. Cases Appealed:

a. After Trial

b. Without Trial

Page 3 JUVENILE/MINOR ACTIVITY

Court

Month Year TOTAL

1. Transportation Code Cases Filed

2. Non-Driving Alcoholic Beverage Code Cases Filed

3. Driving Under the Influence of Alcohol Cases Filed

4. Drug Paraphernalia Cases Filed (HSC, Ch. 481)

5. Tobacco Cases Filed (HSC, Sec. 161.252)

6. Failure to Attend School Cases Filed (Ed.Code, Sec. 25.094)

7. Education Code (Except Failure to Attend) Cases Filed

8. Violation of Local Daytime Curfew Ordinance Cases Filed (Local Govt. Code, Sec. 341.905)

9. All Other Non-Traffic Fine-Only Cases Filed

10. Transfer to Juvenile Court: a. Mandatory Transfer (Fam.Code, Sec. 51.08(b)(1))

b. Discretionary Transfer (Fam.Code, Sec. 51.08(b)(2))

11. Accused of Contempt and Referred to Juvenile Court (Delinquent Conduct) (CCP, Art. 45.050(c)(1)) 12. Held in Contempt by Criminal Court (Fined and/or Denied Driving Privileges) (CCP, Art. 45.050(c)(2)) 13. Juvenile Statement Magistrate Warning: a. Warnings Administered

b. Statements Certified (Fam.Code, Sec. 51.095)

14. Detention Hearings Held (Fam. Code, Sec. 54.01)

15. Orders for Non-Secure Custody Issued

16. Parent Contributing to Nonattendance Cases Filed (Ed. Code, Sec. 25.093)

Page 4 ADDITIONAL ACTIVITY NUMBER Court REQUESTS FOR Month Year NUMBER GIVEN COUNSEL 1. Magistrate Warnings: a. Class C Misdemeanors

b. Class A and B Misdemeanors

c. Felonies

TOTAL 2. Arrest Warrants Issued: a. Class C Misdemeanors

b. Class A and B Misdemeanors

c. Felonies

3. Capiases Pro Fine Issued

4. Search Warrants Issued

5. Warrants for Fire, Health and Code Inspections Filed (CCP, Art. 18.05)

6. Examining Trials Conducted

7. Emergency Mental Health Hearings Held

8. Magistrate's Orders for Emergency Protection Issued

9. Magistrate's Orders for Ignition Interlock Device Issued (CCP, Art. 17.441)

10. All Other Magistrate's Orders Issued Requiring Conditions for Release on Bond

11. Driver's License Denial, Revocation or Suspension Hearings Held (TC, Sec. 521.300)

12. Disposition of Stolen Property Hearings Held (CCP, Ch. 47)

13. Peace Bond Hearings Held

14. Cases in Which Fine and Court Costs Satisfied by Community Service: a. Partial Satisfaction

b. Full Satisfaction

15. Cases in Which Fine and Court Costs Satisfied by Jail Credit

16. Cases in Which Fine and Court Costs Waived for Indigency

17. Amount of Fines and Court Costs Waived for Indigency

18. Fines, Court Costs and Other Amounts Collected: a. Kept by City

b. Remitted to State

c. Total

Page 5 Beyond Lessons Learned: Addressing Change in Municipal Courts

VICTORIA JARAMILLO MEDLEY CITY OF AMARILLO COURT ADMINISTRATOR

How did we get here?

 August 2014 – Ferguson Missouri, Officer Darren Wilson shot and killed 18 yr old Michael Brown.

 The shooting set off a year of protest that focused on civil rights.

 DOJ findings started a national debate on social justice and economic inequality.

Lets talk about the Findings

 March 2015 – report was released and it was found that Ferguson’s emphasis on revenue had compromised both local public safety needs and the courts role in assuring due process to its citizen.

DOJ Report , pg. 2  The Ferguson Municipal Court was found to have exploitative standard operating procedures that deprived people of their constitutional rights of due process and

equal protection. DOJ Report, pg.6 DOJ National Response

 December 2015 – The Department of Justice convened a group of stakeholders to discuss assessment and enforcement of fines and fees in state and local courts.  The intent was to “address some of the most common practices that run afoul of the United States Constitution and/or other federal laws..”  They wanted to assist courts at all levels with suggested alternatives that protect the legitimate needs of public safety while upholding the tenants of the justice system. DOJ Dear Colleague Letter, pg. 1

DOJ “Dear Colleague” Letter

7 Basic Constitutional Principles Relevant to the Enforcement of Fines and Fees Principal 1

Courts must not incarcerate a person for nonpayment of fines or fees without first conducting an indigency determination and establish that the failure to pay was willful.

 Due process and equal protection principles of the 14th Amendment prohibit punishing a person for his or her poverty.

 Courts must inquire as to a persons ability to pay prior to imposing incarceration for nonpayment

 Must find that it was willful in nonpayment not because of finical ability.

 Indigency inquiries must ensure fair and accurate assessments of defendants ability to pay.

DOJ “Dear Colleague” Letter, pgs. 3-4

Principal 2

Courts must consider alternatives to incarceration for indigent defendants unable to pay fines and fees.

 Alternatives suggested:  Extending the time to payment  Reducing fine  Requiring the defendant to attend traffic or public safety class.  Imposing community service

 Provide clear and consistent standards

 Mechanism in place to properly assess the defendants financial resources to determine payment plan with the ability for the defendant to reduce amount monthly obligation, if financial circumstances change

DOJ “Dear Colleague” Letter, pg. 4

Principal 3

Courts must not Condition access to a Judicial hearing on prepayment of fines or fees.

 Prehearing bond or bail payment can have the effect of denying access to justice to the poor.

DOJ “Dear Colleague” Letter, pgs. 4-5 Principal 4

Courts must provide meaningful notice and, in appropriate cases, counsel when enforcing fines and fees.

 Due process requires adequate notice must be provided for even the most minor of cases.

 Suggested that citations and summons should inform individuals of:  precise charges against them  amount owed or other possible penalties  date/time of court hearing  availability of alternative means of payment  rules and procedures of the court and their rights  whether in-person appearance is required DOJ “Dear Colleague” Letter, pgs. 5-6

Principal 5

Courts must not use arrest warrants or license suspensions as a means of coercing the payment of court debt when individuals have not been afforded constitutionally adequate procedural protections.

 The use of arrest warrant as a means of debt collection rather than in response to public safety can cause a persons constitutional rights to be violated

 Warrants must not be issued for failure to pay without providing adequate notice to the defendant, a hearing where the defendants ability to pay is assessed and other basic procedural protections.

 State and local courts are encouraged to avoid suspending Drivers Licenses as a debt collection tool, reserving the suspension for cases in which it would increase public safety.

DOJ “Dear Colleague” Letter, pgs. 6-7

Principal 6

Courts must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release.

 Any bail practices that result in incarnation based on poverty violate the 14th amendment.

 Any bond policy that relies solely on secured monetary bonds, runs the risk of incarcerating poor defendants who pose no threat to public safety solely because they can not afford to pay.

DOJ “Dear Colleague” Letter, pg. 7 Principal 7

Courts must safeguard against unconstitutional practices by court staff and private contractors.

 Recognized that many courts are presided over by judges or magistrates that preside only for a few hours or days per week and the clerk and court staff are often left to provide critical court functions.

 Clearly states that regardless of the size of the docket or the limited hours of the court, judges must ensure that the law is followed and preserve both the appearance and reality of fairness.

 In terms of private contractors the issue of due process can arise when a jurisdiction employs private, for profit companies when a pecuniary interest in the outcome of a case is effected and can undermine confidence in the integrity of the criminal proceeding.

DOJ “Dear Colleague” Letter, pg. 7

State Specific Response

Collection Improvement Program Revisions - Effective January 1, 2017

 “The primary goal of the amendments is to provide procedures that will help defendants comply with court ordered costs, fines and fees without imposing undue hardship on defendants and their

dependents.” Part 8. Texas Judicial Council

Legislative Focuses

 Bail Bond Conditions

 Court appointment Procedures

 New reporting requirements “Seek first to understand, then to be understood”

Habit 5. Steven Covery, The Seven Habits of Highly Effective People (Free Press 1989) Volume 26 No.1 SPECIAL EDITION October 2016 © 2016 Texas Municipal Courts Education Center. Funded by a grant from the Texas Court of Criminal Appeals. FINES, FEES, COSTS, & INDIGENCE

August 9th marked the two-year anniversary of the tragic events in Ferguson, Missouri. In response to the shooting and subsequent unrest, the U.S. Department of Justice (DOJ) conducted an investigation and issued a 100-page report that detailed policing practices of the Ferguson Police Department and practices in the Fer- guson Municipal Court that undermined the court, eroded community trust, and ultimately had devastating consequences for the City of Ferguson and its residents.

Critics subsequently contended that local courts throughout the nation are operating “debtors’ prisons.” The DOJ convened a group of stakeholders at the White House in December 2015 to discuss the challenges surrounding fi nes and fees. In March 2016, the DOJ Civil Rights Division and Offi ce for Access to Justice issued a letter to state and local courts regarding their legal obligations with respect to the enforcement of fi nes and fees.

Civil rights attorneys began aggressively ﬁ ling lawsuits and working to publicize them in the media. In addition to cities and counties in Louisiana, Tennessee, Mississippi, Washington, and Virginia, lawsuits were against three of the largest cities in Texas. As of date, federal courts have dismissed lawsuits against the City of Austin and the City of Amarillo and a motion to dismiss is pending in a suit against the City of El Paso.

The legal issues are complicated. Perhaps that explains why the media has not fully explained them. How much does the public know about Texas law governing the imposition and enforcement of ﬁ nes and costs? How much do your local and state elected leaders know? When poverty-related issues come to the courthouse, city hall, and Capitol Building, where will the Texas public and their elected ofﬁ cials get their information? Will it be the internet, the media, or advocacy groups? TMCEC hopes this issue will prepare readers to talk about these issues.

In the two years since the events in Ferguson, it is not just notions of equal protection and due process that are in question; it is the use of police powers and the meaning of the 10th Amendment. Society regularly endeavors to strike a sound balance between individual and societal interests. The question in Texas is can we better serve the interest of the poor while maintaining public safety and order in our communities. Do we need more laws or do we need to do a better job of enforcing the ones we have?

Most of the legal contentions being bantered about are hardly new. They are settled law. Nevertheless, occasionally, it is necessary to revisit such legal issues and to examine them in the light of modern times. Now is such a time. It is not only healthy to engage in such critical inquiry, it is essential when the rule of law is called into question, when the law is not being followed, and when the law has been misrepresented. This is why TMCEC has prepared this special issue.

Page 1 SPECIAL EDITION The Recorder Texas Municipal Courts Inside This Issue Education Center 2210 Hancock Drive “Debtors’ Prisons” and “Ticket Debt”: The Misleading Rheto- Austin, Texas 78756 ric Revolving Around Criminal Penalties in Texas...... 3 512.320.8274 or 800.252.3718 Fax: 512.435.6118 Comparing Courts: Texas is Not Ferguson, Missouri www.tmcec.com Media buzz aside, current Texas laws are ahead of other states Fair and Impartial Justice for All and do not authorize most controversial practices occurring in local courts of other states...... 6 FY17 TMCEC Offi cers Judges Who Do Not Comply with Safeguards in Texas Laws President: Stewart Milner, Arlington President-Elect: Michael Acuna, Dallas Protecting Indigent Defendants Are Committing Judicial Mis- 1st V.P.: Esmeralda Garcia, Houston conduct 2nd V.P.: Robin A. Ramsay, Denton Legislation alone cannot solve the problem. The responsibility Secretary: Hilda Cuthbertson, Bryan belongs to local judges. The solution is community Treasurer: Robert C. Richter, Missouri City Past-President: Ed Spillane, College Station awareness...... 9 Directors Misunderstanding “Fine-Only” Misdemeanors Sheila Seymore, Canyon • Danny Rodgers, Although they have existed since the dawn of the Republic, Fort Worth • Janie Krakowski, Coff ee City • the last 12 months have been dark days for Class C Brian Holman, Lewisville • Sharon Hatten, misdemeanors. Yet, despite too often being mischaracterized Midland • Kathleen Person, Temple • John and minimized, these “minor offenses” play a major Bull, San Antonio • Michael Davis, Conroe • Julie Escalante, Baytown • Horacio Pena, role in maintaining public order and quality of life in Mission Texas...... 11 Contributors Distinguishing “Fines” from “Court Costs” Ryan Turner • Mark Goodner • Robby Chap- Legally, they are not the same. It is important that the public man • Regan Metteauer • Ned Minevitz • and state and local offi cials understand the difference...... 13 Benjamin Gibbs • Elizabeth C. Cone Staff Making Meaningful Use of the Fine Range Consideration of a defendant’s ability to pay is a matter of • Hope Lochridge, Executive Director • Ryan Kellus Turner, General Counsel & judicial discretion...... 15 Director of Education Defi ning Indigence • Mark Goodner, Deputy Counsel & Director The challenge is not just formulation, it is application. While of Judicial Education • Robby Chapman, Director of Clerk Educa- judges need more “tools,” the Legislature has wisely avoided a tion & Program Attorney “one-size-fi ts-all” approach...... 17 • Regan Metteauer, Program Attorney An Incomplete Picture: State Data and Indigence • Deadra Stark, Administrative Director While some data is better than none, state and local governments • Patty Th amez, Program Coordinator & Net- work Administrator are urged to exercise caution...... 19 • Tracie Glaeser, Program Coordinator In the Shadow of Bearden, Guidance from Case Law, the Texas • Ned Minevitz, TxDOT Grant Administrator & Program Attorney Code of Criminal Procedure, and the Case for “Show-Cause” • Elizabeth De La Garza, TxDOT Grant Ad- Hearings Prior to Issuing a Capias Pro Fine ministrator Part One: The Trilogy...... 21 • Pat Ek, Registration Coordinator • Demoine Jones, Multi-Media Specialist Part Two: Bearden in Texas...... 23 • Crystal Ferguson, Research Assistant & Of- fi ce Manager “Safe Harbor” Policies: Why Arrest Is Not Always • Avani Bhansali, Administrative Assistant the Best...... 26 • Molly Knowles, Communications Assistant In Light of Tate: What “Alternative Means” Means Published by the Texas Municipal Courts It does not mean waiver of fi nes and costs...... 28 Education Center through a grant from the Texas Court of Criminal Appeals. An annual Setting the Record Straight: Class C Misdemeanors, the Right subscription is available for $35. to Counsel, and Commitment to Jail Articles and items of interest not otherwise Neither federal case law nor the DOJ “Dear Colleague” Letter copyrighted may be reprinted with attribu- supports the argument that the U.S. Constitution forbids tion as follows: “Reprinted from Th e Recorder: commitment of indigent persons in the absence of appointed Th e Journal of Texas Municipal Courts with counsel...... 30 permission from the Texas Municipal Courts Education Center.” Th e views expressed are solely those of the contributors and are not necessarily those of the TMCEC Board of Directors or of TMCEC staff members. Page 2 SPECIAL EDITION The Recorder “Debtors’ Prisons” and “Ticket Debt:” The Misleading Rhetoric Revolving Around Criminal Penalties in Texas In his 1906 speech to the American Bar Association, distinguished American legal scholar Roscoe Pound said “dissatisfaction with the administration of law is as old as the law.”1 In his speech, he enumerated multiple reasons for criticism, several of which still apply 110 years later. Recently, criticism of the incarceration of indigent defendants for Class C misdemeanors has become a controversial topic, and some are publicly questioning its legality. This dissatisfaction with the administration of justice is, in part, caused by what Pound called the “inevitable difference in the rate of progress between law and public opinion.”2 The arrow of criticism, seemingly aimed solely at local courts, is misdirected. Reconciling the Rhetoric with the Law Judges have legal obligations to follow the law, and the law does not always allow judicial discretion. Judges and local courts are widely criticized for Judges and local courts complying with laws they did not create, but dissatisfaction with the law are widely criticized for is not an issue the judiciary can solve. This gap between public opinion complying with laws and the law is a legislative matter. Because the gap is not discernible to the they did not create, but public, the public is often incorrect in its assumptions regarding the law. dissatisfaction with the These assumptions are understandable, however, in light of media accounts law is not an issue the of “injustice” that are rooted more in public policy and social impact than judiciary can solve. in the law—both state and federal. As Pound stated in 1906, sources of dissatisfaction lay in the “environment of our judicial administration,” and a contributing cause to this environment is “public ignorance of the real workings of courts due to ignorant and sensational reports in the press.”3 Emerging rhetoric has increasingly used terms such as “debtors’ prisons” dysphemism and “ticket debt,” but those terms are not entirely accurate. Such dysphemisms require no understanding of the law. They are an appeal to [dis-fuh-miz-uh m] emotion. Criminal defendants (convicted or merely accused) are portrayed as powerless victims in the criminal process. They are led to believe that noun they will receive a ticket, and when they cannot pay, they will be stuck in a system that adds on more fees, revokes their driver’s licenses and vehicle 1. the substitution of a registrations, and arrests them leaving them poor and jobless. Additionally, harsh, disparaging, or they will carry the stigma of being a criminal, may lose their housing, unpleasant expression and have their children taken away from them. This tactic creates false for a neutral one. perceptions of the process and promotes an “Us versus Them” mentality. While this parade of horribles may refl ect an absolute worst case scenario 2. an expression so if a defendant takes no action to respond to the charge at all, too often the substituted. public is not educated as to what steps they can take for resolution and what protection is provided in the law. In June 2016, TMCEC discussed in its blog an example of misleading “debtors’ prison” rhetoric.4 Let’s examine some recent and commonly repeated ideas pushed by the media and some advocacy groups regarding criminal penalties and provide some commentary and supplementary legal information that is often left out of the message. “Criminal Penalties Resulting from Fine-Only Misdemeanors is Just “Ticket Debt”” Referring to criminal fi nes as “ticket debt” is incorrect. And while it is true that one could be imprisoned for failing to respond to a citation or to pay a fi ne after a judgment is entered, this does not constitute imprisonment for debt. It is incarceration as a punishment for violation of laws and for a refusal to submit to the penalty imposed. This distinction is important between criminal fi ne (a punishment for breaking the law) and debt. Debt is more accurately reserved for civil matters. Nationally, advocacy groups often confl ate criminal justice obligations (and the enforcement of lawful criminal court judgments) with private consumer debt (which they contend are enforced through illegal predatory collection practices). These distinctions are increasingly of public importance, particularly amidst sensational claims that municipal courts in Texas are turning jails into “debtors’ prisons.”5 Additionally, it is illegal to be jailed for the inability to pay fi nes and fees, but defendants may be jailed only if they cannot pay and do not make a good faith effort to discharge fi nes and fees through an alternate means such as community service or payment installments.6 Page 3 SPECIAL EDITION The Recorder “Citations are Received for Minor Issues and Trigger a Monetary Obligation” Citations are not just “received.” Citations are issued in lieu of arrest for Class C misdemeanors. Peace offi cers must have probable cause to Citations are issued in believe a crime has been committed before issuing a citation—the same lieu of arrest, booking, standard that applies before an arrest.7 A defendant who maintains his or and posting of bond. If her innocence can enter a plea of not guilty and request a jury or bench one does not wish to trial. A defendant who does not wish to contest the charge may enter contest the charge and a plea of guilty or no contest or simply pay the fi ne and court costs. is not able to pay the A defendant could even appear and refuse to enter a plea, triggering a fi nes and costs, he or duty to enter a plea of not guilty on defendant’s behalf.8 Regardless of the defendant’s choice, the defendant must do something. By signing a she should contact the citation, a defendant promises to appear in court or otherwise respond to court and investigate the the charge and accepts the condition of release by the offi cer. Ignoring options. this obligation is the commission of a crime. “Those Not Able to Pay Will Surely Face Additional Fees” Citations are issued in lieu of arrest, booking, and posting of bond. If one does not wish to contest the charge and is not able to pay the fi nes and costs, he or she should contact the court and investigate the options. This could amount to a request to pay fi nes and costs over time. If evidence is shown leading a judge to determinate that the defendant is indigent, the defendant must be given alternative means to discharge the fi ne. This alternative means is discharging your fi ne and costs through community service, or perhaps a reasonable installment plan. Courts are required by state law to charge a $25 time payment fee if any part of a fi ne or fee is not paid within 30 days of judgment.9 “If a Ticket is Not Paid, Defendants Will Lose Their Drivers’ Licenses and Vehicle Registrations Will Be Revoked.” This may or may not be true. If the court has contracted to be a part of the Failure to Pay/Failure to Appear program (commonly known as OmniBase), a driver may not be able to renew his or her license.10 In a court using OmniBase, defendants who neglect to appear or pay within 60 days, have a hold put on their licenses. This would add a statutory $30 fee to lift a license hold. Similarly, courts may restrict a registration renewal if they participate in the Scoffl aw program.11 Scoffl aw fees can be up to $20. Additionally, it should be kept in mind that these are holds on renewals of license and registration. These holds do not invalidate current, valid licenses and registrations. So, unless a license or registration is currently expired, and even if one has neglected to respond to the charge, a license and registration will still be valid unless the defendant continues to neglect the obligation until expiration. “If Defendants Do Not Pay, the Court Will Issue an Arrest Warrant Courts do not issue for the Unpaid Debt” arrest warrants for the This is misleading. Courts do not issue arrest warrants for the debt. Courts debt. Courts may issue may issue arrest warrants for defendants who have not answered their arrest warrants for criminal charges in a timely fashion. If one has not taken any affi rmative defendants who have steps to handle a citation, he or she could be arrested for any one of not answered their several reasons. First, one may be charged with a non-appearance crime. criminal charges in a If a defendant signed a citation and later failed to appear, the defendant timely fashion. has violated either the promise to appear or the condition of release. The defendant may be charged with this additional new crime, and a warrant is possible. Second, a defendant could be arrested on a warrant for the initial crime for which he or she did not appear or pay. Third, if one has entered a guilty plea, but has not paid fi nes, the defendant could be arrested on a capias pro fi ne. “Those Unable to Pay Will Suddenly Be Jailed and Will Lose Employment” Choosing to not address court obligations will have numerous negative consequences. Although one could be jailed if a warrant has been issued, referring to the jailing as “sudden” is inaccurate if one has chosen not to respond to criminal charges. Deciding to not drive illegally may indeed hinder employment. However, most people, even those who have a low socioeconomic status, choose to comply with the law.

Page 4 SPECIAL EDITION The Recorder “Defendants Who Are Unable to Pay and Continue to Drive Without a License or Registration Are Moving Targets Likely to Be Put in Jail” Choosing to not only ignore court obligations, but to break more laws will subject defendants to more consequences, compounding their problems. If they are taken to jail for past offenses and there is a judgment, the judge is required to have a commitment hearing. If one has an ability to pay, but has not made a good faith effort to do so, then he or she could be committed to jail until the judgment is satisfi ed. On the other hand, if one is indigent and has not been given an opportunity to discharge fi nes and costs with community service, he or she must be released. Indigent persons cannot legally be committed to jail unless they have failed to make a good faith effort to discharge fi nes and costs, and community service would not be an undue hardship for them. It should be noted that indigency alone is not an undue hardship under current Texas law.12 If one is an indigent person and community service One does not powerlessly would be an undue hardship, the judge may waive the indigent person’s get caught up in a vicious fi nes and costs.13 Judges are not empowered to waive fi nes and costs for system that is out to get indigency alone. them as an uninformed reader of many media One does not powerlessly get caught up in a vicious system that is out to accounts or advocacy get them as an uninformed reader of many media accounts or advocacy literature may presume. Only with persistent inaction do defendants fi nd literature may presume. themselves subject to the compounding perils of continued disregard for Only with persistent criminal obligations. On the other hand, if they make a timely response and inaction do defendants a full disclosure of their ability to pay, they may be able to fi nd resolution fi nd themselves subject quickly, discharge any fi nes and fees without payment, avoid arrest and to the compounding perils other charges, and continue to drive. It will take an effort on the part of of continued disregard for courts to educate the public about the options available to defendants, but criminal obligations. without this effort courts may continue to be faced with a public swayed by uninformed reports in the media.

1. Roscoe A. Pound, The Causes of Popular Dissatisfaction 9. Section 133.104, Local Government Code. with the Administration of Justice, 29 ABA Reports p. 395 10. See, Chapter 706 of the Transportation Code. (1906). 11. Section 702.003, Transportation Code. 2. Id. 12. Article 45.0491 of the Code of Criminal Procedure states 3. Supra, n. 1. that waiver of fi nes and costs is a possibility if, after default 4. See, Mark Goodner, Debtors’ Prisons and Ticket Debt: The in payment, a judge determines the defendant to be either Misleading Rhetoric Revolving Around Criminal Penalties, indigent or a child and that performing community service Full Court Press (June 14, 2016), http://blog.tmcec. would be an undue hardship. Indigence and undue hardship com/2016/06/debtor-prisons-and-ticket-debt-the-misleading- are mentioned separately. In Texas, the Court of Criminal rhetoric-revolving-around-criminal-penalties/. Appeals generally presumes that every word in a statute 5. Texas Appleseed, Debtors’ Prisons, https://www. has been used for a purpose and that each word, phrase, texasappleseed.org/debtors-prisons (last visited June 16, clause, and sentence should be given effect if reasonably 2016). possible. State v. Hardy, 963 S.W.2d 516 (1997). To treat 6. Under Tate v. Short, 401 U.S. 395 (1971), a court may not indigence and undue hardship as interchangeable would be to commit an indigent defendant to jail on a capias pro fi ne render our capias pro fi ne and commitment hearing statutes without fi rst providing the defendant an alternative means meaningless. According to the U.S. Supreme Court, “it is of discharging the judgment. Additionally, under Bearden v. our duty to give effect to every clause and word of a statute, Georgia, 461 U.S. 660, 664-674 (1983), a sentencing court rather than to emasculate an entire section.” United States cannot properly revoke a defendant’s probation for failure to v. Menasche, 348 U.S. 528, 538-39 (1955). Additionally, pay a fi ne and make restitution, absent evidence and fi ndings if indigence and undue hardship were the same thing, then that he was somehow responsible for the failure. waiver would be the only alternative means to payment 7. Article 14.06 of the Code of Criminal Procedure provides under Tate v. Short. offi cers the ability to generally issue a fi eld release citation 13. Article 45.0491, Code of Criminal Procedure. in lieu of arresting a defendant and taking them before a magistrate. 8. Article 45.02, Code of Criminal Procedure.

Page 5 SPECIAL EDITION The Recorder Comparing Courts: Texas Is Not Ferguson, Missouri Media buzz aside, current Texas laws are ahead of other states and do not authorize most controversial practices occurring in local courts of other states. Municipal courts in Texas, like municipal courts in other states, have been subject to a steady barrage of negative press. Yet, amidst all of the media coverage, something critically important is not being reported: state laws substantially differ. Compared to other states, Texas laws aimed at preventing the kinds of abuses that occurred in Ferguson, Missouri adequately address these issues. State Laws Differ While most states have municipal courts, such courts are not governed by a single set of laws. Accordingly, it is improper to attribute the statutorily authorized acts of one municipal court in one state to all municipal courts in the United States. Municipal court jurisdiction in America varies widely. Some municipal courts have jurisdiction over fi ne-only misdemeanors (e.g., Texas1); others have jurisdiction over misdemeanor offenses punishable by a sentence of jail (e.g., Mississippi2 and Missouri3). Municipal courts in states like Texas are part of the state judiciary; most facets of their existence are governed by state law. In states like Missouri, prior to what happened in Ferguson and changes to Missouri law in 2015, municipal courts were predominantly vestiges of municipal government and operated in the shadows of state laws.4 This is not the case in Texas. Accordingly, when assessing courts and their treatment of indigent defendants, the laws of each state must be considered independently. Texas Is Different Texas law has already addressed many of the issues raised and implemented effective solutions. One reason Texas may be further ahead than other states on indigence issues in local municipal courts is the fact When assessing that the seminal case dealing with these issues, Tate v. Short, came out of courts and their Texas courts.5 By the time the case was remanded to the Court of Criminal treatment of Appeals, the Texas Legislature had already revised the Code of Criminal indigent defendants, Procedure to permit courts to order payments be made immediately, later, the laws of or in intervals.6 each state must be considered Since 1971, the Texas Legislature has grappled with these and related independently. issues several times, and updated the laws in light of more recent decisions regarding indigence and enforcement of fi nes. This is why many of the defi ciencies the DOJ highlighted in Missouri laws are not present in Texas laws (See chart on page 7 of this issue of The Recorder). Alternative Means: Extensions of Time to Pay The changes made to the Code of Criminal Procedure in 1971 as a result of Tate authorized alternative sentencing, what the Court called “a procedure for paying fi nes in installments.”7 Ideally, upon entering the judgment, a defendant will pay the court in the manner specifi ed by the judgment (i.e., immediately, later, or in intervals).8 Notably, in Texas, a defendant need not be deemed indigent by the court in order to receive a payment plan. With the addition of Article 45.041(b-2) in 2011, however, if a court determines that the defendant is unable to immediately pay the fi ne and costs, the judge must allow the defendant to pay the fi ne and costs in designated intervals.9 Alternative Means: Community Service It wasn’t until 2015, one year after the events in Ferguson, that Missouri law authorized indigent defendants to discharge fi nes and costs by performing community service.10 Under Texas law, in lieu of installment payments, defendants who fail to pay a previously assessed fi ne or have insuffi cient resources or income to pay a fi ne or court costs may be ordered to discharge all or part of it by perfo rming community service.11 An order to perform community service does not preclude the defendant from choosing to subsequently pay fi nes and costs.12 A

Page 6 SPECIAL EDITION The Recorder defendant is considered to have discharged not less than $50 of fi nes or costs for each eight hours of community service performed.13 Under Texas law, a defendant may not be ordered to perform more than 16 hours of community service per week unless a judge has determined that additional hours will not impose a hardship on either the defendant or the defendant’s dependents.14 These provisions were intended to provide judges Waiver of Fines for Indigent Defendants with the discretionary authority to waive the Texas law authorizes all criminal trial courts to waive the fi ne and costs of a defendant who defaults in payment of a fi ne or costs imposed on payment of fi nes and a defendant if: (1) the defendant is either indigent or was a child at costs on a case-by-case the time of the offense; and (2) discharging the fi ne and costs through basis and only when all community service or as otherwise authorized by the Code of Criminal other alternative means Procedure would impose an undue hardship.15 These provisions were authorized by the code intended to provide judges with the discretionary authority to waive would be an undue the payment of fi nes and costs on a case-by-case basis and only when hardship. all other alternative means authorized by the code would be an undue hardship.16

Municipal Courts in Texas Municipal Courts in Missouri

Jurisdiction is Limited to City Ordinance Violations Punishable 1. Misdemeanors Punishable by the by Jail Sentences18 Imposition of a Fine17 2. Two-Year Statute of Limitations 19 No Statute of Limitations20 3. No “Cash Bail” System 21 “Cash Bail” for Release22 Alternative Means: Community Service Not Available 4. Installment Payments Authorized, Until 201524 Community Service, Tutoring23

Fines Enforced with Fines Enforced with Contempt for 5. Capias Pro Fine25 Failure to Appear or Pay27 Commitment Orders Required26

6. Jury Trial Guaranteed 28 Jury Trial Not Available29

Trial de Novo, or Appeal for Court of 7. Trial de Novo31 Record30

8. Municipal Courts are Statutory and Municipal Courts are an Arm of the Part of the Police Department, Texas Judicial System32 Judge is a Judicial Employee33 9. Municipal Judges Must Have State Bar CLE Hours are Suffi cient for Judicial Education34 Judicial Education35

Page 7 SPECIAL EDITION The Recorder Other Texas Safeguards While municipal and justice courts serve the express function of preserving public safety, protecting the quality of life in Texas communities, and deterring future criminal behavior, there is no denying the implicit, though signifi cant, function of revenue generation. In an effort to regulate such tension, the Texas Legislature has set caps on how much revenue traffi c fi nes can generate.36 Texas law also prohibits municipalities and counties from either formally or informally establishing a plan to evaluate, promote, compensate, or discipline a judge or peace offi cer based on either the number of citations issued or fi nes collected.37 Local government offi cials and employees are statutorily prohibited from expecting, requiring, or even suggesting that a judge collect a predetermined amount of money from persons convicted of a traffi c offense during any period of time.38 City councils are prohibited from considering the amount of revenue collected by municipal courts for purposes of determining reappointment.39 A violation of these prohibitions by an elected offi cial is misconduct and a ground for removal from offi ce and a violation of the law by a person who is not an elected offi cial is a ground for removal from the person’s position.40 In the wake of Ferguson-inspired lawsuits, now is an ideal time to remind local offi cials and employees why judicial independence best serves the interests of the public and the interests of government. It not only ensures that the public has access to fair and impartial judicial proceedings, it is also a primary reason why local governments are not held legally responsible for the decisions of local judges.41

1. Article 4.14, Code of Criminal Procedure. Police Department (2015) at 7. 2. Miss. Code Ann., Section 21-23-19 (2013). 34. Rule of Judicial Education 5(a), Court of Criminal Appeals. 3. Mo. Rev. Stat., Subsection 77.590, 79.470 (2015). 35. Mo. Supreme Court Rule, 18.05(a). 4. See, The Recorder (April 2016) at 7. 36. Section 542.402(b), Transportation Code (placing a 30 5. Tate v. Short, 401 U.S. 395 (1971). percent cap on the amount of revenue that may be collected 6. Ryan Kellus Turner, Pay or Lay: Tate v. Short Revisited, locally in the form of fi nes). Municipal Court Recorder, March 2003. 37. Section 720.002(a), Transportation Code. 7. Tate, 401 U.S. at 671 n. 5. 38. Section 720.002(b), Transportation Code. 8. Article 45.041of the Code of Criminal Procedure applies 39. The Texas Legislature’s repeal of Section 720.002(c) of the to municipal and justice courts. A similar provision, Article Transportation Code in 2009 clarifi ed that the prohibition of 42.15, governs county and district courts. traffi c quotas is, in fact, intended to prohibit municipalities 9. Article 45.041(b-2), Code of Criminal Procedure; H.B. 27, from considering the amount of revenue collected by 82d. Leg., Reg. Sess. (Tex. 2011). municipal courts when evaluating the performance of 10. S.B. 5, 98th Gen. Assemb., Reg. Sess. (Mo. 2015). municipal judges for purposes of determining reappointment. 11. Article 45.049, Code of Criminal Procedure. Turner and Abbott, Supra, at 1-32. 12. Article 45.049(a), Code of Criminal Procedure. 40. Section 720.002(e), Transportation Code. 13. Article 45.049 (e), Code of Criminal Procedure. 41. A local judge acting in his or her judicial capacity is not 14. Article 45.049 (d), Code of Criminal Procedure. considered a local government offi cial whose actions are 15. Articles 43.0901 and 45.0491, Code of Criminal Procedure. attributable to the local government. Davis v. Tarrant County 16. Articles 43.0901(2) and 45.0491(2), Code of Criminal Tex., 565 F.3d 214, 227 (5th Cir. 2009) citing Krueger Procedure. v. Reimer, 66 F.3d 75, 77 (5th Cir. 1995). As municipal 17. Article 4.14(a), Code of Criminal Procedure. courts are part of the state judicial system, claims against 18. Mo. Rev. Stat., Subsection 478.230, 479.010. a municipal judge in the judge’s offi cial capacity are not 19. Article 12.02, Code of Criminal Procedure. claims against a city but rather claims against the State 20. Missouri Bench Book, Section 3.9. of Texas. DeLeon v. City of Haltom City, 2003 U.S. Dist. 21. Article 17.01, Code of Criminal Procedure. LEXIS 9879, 10-11 (N.D. Tex. June 10, 2003), citing Ex 22. Mo. Rev. Stat., Section 544.455. parte Quintanilla, 207 S.W.2d 377 (Tex. Crim. App. 1947). 23. e.g., Articles 45.041 and 45.0492, Code of Criminal However, when judges are not acting independently, but Procedure. rather effectuating offi cial policies or customs of cities that 24. Mo. Rev. Stat., Section 479.360. violate constitutional rights, municipalities face potential 25. Article 45.045, Code of Criminal Procedure. liability. Cities can be sued and subjected to monetary 26. Article 45.046, Code of Criminal Procedure. damages and injunctive relief under federal civil rights law 27. Mo. Rev. Stat., Section 479.070. only if its offi cial policy or custom caused plaintiff to be 28. Article 1.12, Code of Criminal Procedure. deprived of a federally protected right. Board of County 29. Mo. Rev. Stat., Section 479.140. Commissioners v. Brown, 520 U.S. 397, 403 (1997). 30. Article 45.042, Code of Criminal Procedure. 31. Mo. Rev. Stat., Section 476.010. 32. Tex. Const., Art. II, Section 1; Chapter 29, Texas Government Code. 33. U.S. Department of Justice, Investigation of the Ferguson

Page 8 SPECIAL EDITION The Recorder Judges Who Do Not Comply with Safeguards in Texas Laws Protecting Indigent Defendants Are Committing Judicial Misconduct Legislation alone cannot solve the problem. The responsibility belongs to local judges. The solution is community awareness. The judiciary has been entrusted by the public to see that justice is done. Incarceration of indigent defendants solely for inability to pay is discrimination against poor defendants.1 A former member of the State Commission on Judicial Conduct (SCJC), Judge Edward Spillane is the Presiding Judge of the College Station Municipal Court and Past-President of the Texas Municipal Courts Association. Judge Spillane has stated that, “Neither judges nor members of the public should tolerate this kind of judicial misconduct. Regardless if it is because of ignorance or indifference, people who do not comply with safeguards in Texas law aimed at protecting indigent defendants should not be allowed to serve in the Texas judiciary.”2 Failure to Comply with Statutory Safeguards is a Violation of the Code of Judicial Conduct The Code of Judicial Conduct is clear: ignorance or indifference is no defense. Failure to observe statutory safeguards is a violation of the Code. “A judge shall comply with the law and should act at all times in a manner that promotes public confi dence in the integrity and impartiality of the judiciary.”3 Canon 3 of the Code of Judicial Conduct requires judges to perform duties impartially. In terms of adjudicative responsibilities, judges are supposed to maintain professional competence in the law and shall not be swayed by partisan interests, public clamor, or fear of criticism.4 In performing judicial duties, a judge shall neither manifest bias nor prejudice, including bias or prejudice based upon socioeconomic status, nor shall the judge knowingly permit staff, court offi cials, and others subject to the judge’s direction and control to do so.5 Similarly, judges are required to give any person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law.6 Judicial Accountability Ultimately, it is the responsibility of judges in Texas to monitor and enforce Can the Canons of the Code of Judicial Conduct. Judges who know of misconduct have Judicial Conduct be disciplinary responsibilities. A judge who receives information clearly used to help rid the establishing that another judge has committed a violation of the Code judiciary of people who should take appropriate action.7 A judge who knows that another judge has cast discredit on courts committed a violation of the Code which raises a substantial question as and do not comply with to the other judge’s fi tness for offi ce is obliged to inform the SCJC or take 8 safeguards in the law other appropriate action. aimed at protecting In municipal courts with more than one judge, presiding judges with indigent defendants? It supervisory and performance oversight over other judges should be mindful has happened in other that Canon 3(C)(3) states that a “judge with supervisory authority for the states. It has happened judicial performance of other judges should take reasonable measures in Texas. to assure the prompt disposition of matters before them and the proper performance of their other judicial responsibilities.” The SCJC has issued private admonitions and private reprimands coupled with orders of judicial education to judges who ignored Texas procedural safeguards pertaining to the imposition of fi nes, capiases pro fi ne, indigency issues, and commitments to jail.9 Can the Canons of Judicial Conduct be used to help rid the judiciary of people who cast discredit on courts and do not comply with safeguards in the law aimed at protecting indigent defendants? It has happened in other states.10 It has happened in Texas.11 Education is Key Public education of voters and city council members as to what the law requires is the best way to ensure that bad judges are neither elected nor appointed to the offi ce. This education will provide increased awareness about the proper and improper use of courts. A court is allowed to incidentally generate revenue through the Page 9 SPECIAL EDITION The Recorder imposition of fi nes. In fact, there is a strong argument to be made for the expanded use of fi nes and other monetary sanctions in the American There is nothing wrong criminal justice system.12 There is nothing wrong with local governments with local governments retaining fi nes, but such revenue must be viewed as an incidental retaining fi nes, but byproduct of justice. Courts should not be viewed by local or state such revenue must be governments as profi t centers. The law prohibits this. viewed as an incidental byproduct of justice. Judicial education is equally important. Legislation is not necessary Courts should not be for judges to share best practices, such as the use of “safe harbor” and viewed by local or other practices aimed at reducing the number of people arrested. Judicial state governments as education is the key to teaching judges how technology, such as the living profi t centers. wage calculator,13 can assist judges in determining whether a defendant is indigent.

1. Williams v. Ill., 399 U.S. 235, 240-241 (1970). 11. Judge Jack Byno of Haltom City was accused of committing 2. Quote obtained by authors. June 19, 2016. Communication people to jail if, at the time of their conviction, they could not on fi le. pay all fi nes and costs. “Pay or Lay” is the name given for 3. Supreme Court of Texas, Texas Code of Judicial Conduct, the practice prohibited by Tate v. Short. “The Commission Canon 2(A) (2002). and a private citizen initiated complaints against the judge, 4. Id., Canon 3(B)(2). based on several newspaper articles and television news 5. Id., Canon 3(B)(6). reports containing various allegations, including that the 6. Id., Canon 3(B)(8). judge exhibited a poor judicial demeanor and failed to follow 7. Id., Canon 3(D) (1). the law in proceedings in his court. Although the judge 8. Id. denied the allegations of misconduct, he opted to resign 9. Examples: A judge: (1) refused to provide the defendant with from offi ce rather than spending time and money on further an opportunity to plead “not guilty” and request a jury trial; disciplinary proceedings. No Findings of Fact or Conclusions (2) adjudicated the defendant guilty and assessed a fi ne in of Law were made in connection with the complaints, but the the defendant’s absence without notice and without setting parties agreed that the allegations of judicial misconduct, if a court date; (3) threatened the defendant with arrest if he found to be true, could result in further disciplinary action. did not pay the fi ne when the defendant appeared in court. The parties agreed that the judge’s resignation was not an State Commission on Judicial Conduct, Private Reprimand admission of guilt, fault or liability. The Commission agreed and Order of Judicial Education (December 10, 2010). A that it would not pursue further disciplinary proceedings judge failed to comply with the law in issuing a capias pro against the judge in connection with said complaints, and the fi ne and committing a defendant to jail where previously: (1) judge agreed to be disqualifi ed from future judicial service; there was no written deferred disposition order; (2) no fi nal sitting or serving as a judge in the State of Texas in the judgment was entered; (3) there was no show cause hearing; future; standing for election or appointment to judicial offi ce and (4) there was no indigency hearing to determine whether in the State of Texas; or performing or exercising any judicial the defendant had the fi nancial ability to pay the fi ne and duties or functions of a judicial offi cer in the state.” State court costs. State Commission on Judicial Conduct, Private Commission on Judicial Conduct, 2004 Annual Report 29- Admonition and Order of Additional Education (November 30 (Voluntary Agreement of Jack Byno, Former Municipal 22, 2011). Judge, to Resign from Judicial Offi ce in Lieu of Disciplinary 10. In a letter to offi cials requesting that his own salary be raised Action (12/5/03). be raised from $40,000 to $60,000 per year, Grady County 12. Martin H. Pritikin, Fine-Labor: The Symbiosis Between State Court Judge William Bass, Sr. stated that he worked Monetary and Work Sanctions, 81 U. Colo. L. Rev. 343, 350 hard “to maximize” the county revenue through his extra (2010). Fines are cheaper to administer than jail and prisons. efforts, raising $350,000 in fi nes per year, according to court Fines have the potential to achieve optimal deterrence documents. Judge Bass received a 60-day unpaid suspension, compared to incarceration. Fines offset criminal justice a formal reprimand from Georgia’s Judicial Qualifi cations costs. Offenders are potentially spared the longer term Commission, and agreed not to seek reelection. In March, criminalizing effects of sentences entailing incarceration. 2015, as terms of a proposed settlement agreement for the Offenders experience faster adaptation when fi ned versus class-action lawsuit against Grady County and Judge Bass, jailed, and do not experience the long-term stigmatization certain defendants were eligible to receive $100 in damages that reduces income earning potential. and a refund of court costs, up to $700. Ga. Commission on 13. Bourree Lam, The Living Wage Gap: State by State, The Judicial Qualifi cations, Docket No. 2012-31, In re: Inquiry Atlantic (Sept. 15, 2015); Mass. Inst. of Tech., Living Wage Concerning Judge J. William Bass, Sr. (2012); R. Robin Calculator, http://livingwage.mit.edu/ (last visited June 20, McDonald, Grady County is Asked to Repay Thousands 2016). in Illegal Court Fees, Southern Center for Human Rights (August 9, 2013); Karen Murphy, Former State Court Judge Speaks Out on Settlement, Thomasville Times-Enterprise (April 6, 2015).

Page 10 SPECIAL EDITION The Recorder Misunderstanding “Fine-Only” Misdemeanors Although they have existed since the dawn of the Republic, the last 12 months have been dark days for Class C misdemeanors. Yet, despite too often being mischaracterized and minimized, these “minor offenses” play a major role in maintaining public order and quality of life in Texas. Class C misdemeanors are criminal offenses for which the sentence entails the imposition of a fi ne as punishment.1 Since the 1970s, Texas law has authorized judges to employ “alternative means” to discharge fi nes and court costs (See, Comparing Courts: Texas Is Not Ferguson, Missouri, page 6 of this issue of The Recorder). Texas Law Governing Class C Misdemeanors Is Distinct As of 2015, there were 1,299 Class C misdemeanors in state law. Per state law, additional Class C misdemeanors may be created via city ordinances or county regulation. Yet, despite being the most commonly committed type of misdemeanor in Texas, Class C misdemeanors remain the most misunderstood. This misunderstanding has increased in the last two years. Media coverage has, for the most part, overlooked that state laws vary and that Texas law governing Class C misdemeanors is distinct (even when compared with other types of Texas misdemeanors). Class C Misdemeanors Are Crimes Also absent is that Class C Misdemeanors are crimes (In Texas, they are not civil infractions; they are not administrative violations). As a matter of state’s rights, Texas has chosen to exercise its police powers under the In Texas, Class 10th Amendment to criminalize a host of behaviors that are not criminal C misdemeanors in other states. Such crimes, even those where the punishment is a fi ne, permeate Texas law and can result in an arrest. In 2000, the U.S. Supreme Court, in Atwater play an understated, v. City of Lago Vista,2 held that the 4th Amendment does not forbid a yet incredibly important, warrantless arrest for a Class C misdemeanor. role in providing consequences and The Important Role of Class C Misdemeanors ensuring compliance In Texas, Class C misdemeanors permeate Texas law and play an with the most understated, yet incredibly important, role in providing consequences and fundamental notions of ensuring compliance with the most fundamental notions of social order. social order. Since the events in Ferguson, a distinct trend has developed. Without grasping the full scope of what is punishable by the imposition of a fi ne in Texas (building code, fi re safety regulation, sanitation issues, traffi c offenses, and environmental regulations), some civil rights activists and members of the media have taken a dim view of “small-fry” offenses and The driving behaviors “low-level courts.”3 most likely to result in injury or death are Class Glaringly absent from most media accounts is any acknowledgment of C misdemeanors. the harms and dangers of the crimes pigeonholed as “minor offenses.” Which of the following is a “minor offense:” A teenager driving under the infl uence of alcohol;4 Failing to restrain a child while operating a motor vehicle;5 Speeding through a school zone;6 Selling cigarettes to children;7 Distributing abusable synthetic substances;8 Public intoxication;9 Assault;10 Disorderly conduct;11 or, Theft of under $100?12 Each of these offenses can have a lasting and important impact on both the individual and public safety. Class C Misdemeanors and Traffi c Safety Texas has not had a day without a traffi c fatality Littering is a Class C misdemeanor in Texas.13 Is littering a “victimless” in more than 15 years, crime? What if the money spent picking up litter were used on early child during which time more education, mental health services, dropout prevention, or child protective than 50,000 people services? Since 1986, Texas taxpayers have spent $969.9 million, or an average of $32.33 million a year, to pick litter up off of Texas highways.14 have been killed.

Page 11 SPECIAL EDITION The Recorder On those highways and streets, on average, a person is killed every two and In Texas, Class a half hours, and injured every two minutes.15 The driving behaviors most likely to result in injury or death are Class C misdemeanors.16 Texas has C misdemeanors not had a day without a traffi c fatality in more than 15 years, during which permeate Texas law and time more than 50,000 people have been killed.17 Last year, in Austin, play an understated, there were 102 people killed, a record number of traffi c fatalities. Thirty- yet incredibly important, four percent of the fatalities involved a person who was not authorized to role in providing operate an automobile.18 Statistically, a person is more likely to be killed consequences and by a driver running a red light and crashing into the side of a vehicle than ensuring compliance by aggravated murder.19 Yet neither a dollar amount nor a statistic can with the most adequately convey the grief, the personal loss, or the tragedy infl icted on fundamental notions of victims and their families because of such “minor offenses.” As put by one social order. of the digital curators of Salud America!, “Traffi c safety is a public health issue. Given the inequity in access to safe streets and the disparities in fatalities and injuries among minorities, traffi c safety is also a social justice issue.”20

1. Sections 12.23, 12.41, Penal Code. highways, a development of that kind may not be at all 2. Atwater v. City of Lago Vista, 532 U.S. 318 (2000). undesirable.“ Tate v. Short, 401 U.S. 395, 401 (1971). 3. Kendall Taggart and Alex Campbell, In Texas It’s a Crime to 17. Angie Schmidt, Texas DOT Isn’t Learning from its Horrifi c be Poor, Buzzfeed (October 7, 2015, 4:21 PM), https://www. Fatalities Calendar, StreetBlog USA (January 8, 2016) buzzfeed.com/kendalltaggart/in-texas-its-a-crime-to-be-poor. http://usa.streetsblog.org/2016/01/08/texas-dot-isnt-learning- 4. Section 106.041, Alcoholic Beverage Code. from-its-horrifi c-road-fatalities-calendar/. 5. Section 545.412, Transportation Code. 18. Nicole Chavez, Katie Hall, and Philip Jankowski, Record 6. Section 545.351, Transportation Code. Number of Traffi c Deaths Has Offi cials Scratching Their 7. Section 161.082, Health & Safety Code. Heads, Austin American-Statesman (January 8, 2016, 3:01 8. Section 484.002, Health & Safety Code. PM) http://www.mystatesman.com/news/news/traffi c/record- 9. Section 49.02, Penal Code. number-of-traffi c-deaths-has-offi cials-scra/npzTT/; Philip 10. Section 22.01 (a)(3), Penal Code. Jankowski, After Deadly Traffi c Year, Austin to Join National 11. Section 42.01 (a), Penal Code. Vision Zero Program, Austin American-Statesman (January 12. Section 31.03 (e)(1), Penal Code. 26, 2016 12:03 PM), http://www.statesman.com/news/ 13. Chapter 365, Health & Safety Code. news/local/after-deadly-traffi c-year-austin-to-join-national-/ 14. Mark Lisheron, Is Don’t Mess With Texas Worth It?, nqCgq/. “Police say more than half of the victims were in watchdog.org (February 29, 2016) http://watchdog. a vehicle, nearly 30 percent of the dead were pedestrians. org/258146/dont-mess-with/. In 2014, it cost Texas taxpayers Impairment from drugs or alcohol were a factor in 60 percent $47 million dollars to clean litter off Texas highways. of the incidents, for drivers and pedestrians.” Id. Dora Miller, Litter on the Highway Costing the State 19. Leonard Evan, A New Traffi c Safety Vision for the Millions, KTXS (December 16, 2014, 8:16 PM) http://m. United States, 93 Am. J. Pub. Health 1384, at 1384-1386 ktxs.com/news/litter-on-the-highway-costing-the-state- (September, 2003); National Coalition for Safer Roads, Key millions/30261258. Issues, http://ncsrsafety.org/key-issues/ (accessed August 16, 15. Texas Department of Transportation, Texas Motor Vehicle 2016); FBI.gov, Expanded Homicide Data Table 8, https:// Traffi c Crash Highlights Calendar Year 2014 (2014) http:// ucr.fbi.gov/crime-in-the-u.s/2014/crime-in-the-u.s.-2014/ ftp.dot.state.tx.us/pub/txdot/trf/crash-statistics/2014/01.pdf. tables/expanded-homicide-data/expanded_homicide_ 16. Notably, to avoid the equal protection issue regarding fi nes data_table_8_murder_victims_by_weapon_2010-2014.xls and indigent defendants and because liberty is a common (accessed August 16, 2016). denominator of which rich and poor can be deprived, Justice 20. Amanda Merck, Traffi c Safety is a Public Health Issue, Salud Blackmun, in his concurring opinion in Tate, encouraged America (March 30, 2016) http://www.communitycommons. governments who were serious about ending the carnage org/groups/salud-america/changes/traffi c-safety-is-a-public- on highways to stop using fi nes and to have jail as the health-issue/. punishment for traffi c offenses. “Eliminating the fi ne whenever it is prescribed as alternative punishment avoids the equal protection issue that indigency occasions and leaves only possible Eighth Amendment considerations. If, as a nation, we ever reach that happy point where we are willing to set our personal convenience to one side and we are really serious about resolving the problems of traffi c irresponsibility and the frightful carnage it spews upon our

Page 12 SPECIAL EDITION The Recorder Distinguishing “Fines” from “Court Costs” Legally, they are not the same. It is important that the public and state and local ofﬁ cials understand the difference.

Regardless of the label applied, both fi nes and court costs entail money to be paid by a defendant. However, there Mayer v. City of Chicago, 404 U.S. 189 (1971) are important differences between them. In the context of - An indigent defendant accused of fi ne-only a criminal case, fi nes are amounts assessed to punish an disorderly conduct is entitled to a free transcript individual or organization for violating a law following or comparable alternative regardless of ability conviction by a judge.1 Court costs are amounts prescribed to pay applicable court costs. Limiting free by the Legislature, determined on a case-by-case basis, transcripts to felonies was an unreasoned and varying in relation to the activities involved in the distinction prohibited by the 14th Amendment. course of the case (and may include fees, miscellaneous The fact that the offenses were fi ne only did not charges, and surcharges).2 lessen the invidious discrimination against an indigent defendant. Fines (are not Court Costs) Weir v. State, 278 S.W.3d 364 (Tex. Crim. Fines make sense (not just money). Throughout history, App. 2009) - The statutory assessment of court dating back to the Roman Empire, societies around the costs against a convicted defendant is not an world have supported the imposition of fi nes for common additional penalty for the crime committed, criminal offenses. Fines have historically been considered but a non-punitive recoupment of the costs of among the least severe of criminal consequences. There judicial resources expended in connection with are several arguments for the extensive use of fi nes and the trial of the case. other monetary sanctions in the American criminal justice Mayer v. State, 309 S.W.3d 552 (Tex. Crim. system: (1) Fines are cheaper to administer than jail and App. 2010) - No trial objection is required prisons; (2) Fines have the potential to achieve optimal to preserve an appellate claim of legally deterrence compared to incarceration; (3) Fines offset insuffi cient evidence as it pertains to the criminal justice costs; and (4) Offenders are potentially imposition of a particular court cost. spared the longer-term criminalizing effects of sentences entailing incarceration.3 Armstrong v. State, 340 S.W.3d 759 (Tex. Crim. App. 2011) - The amount and assessment of Fines in Texas criminal court costs is a matter of criminal law Fines, incarceration, and the death penalty are the (not civil law) and is subject matter that may be typical three types of punishment in the Texas criminal raised on direct appeal. justice system. Fines are the most common form of Johnson v. State, 423 S.W.3d 385 (Tex. Crim. punishment for violations of criminal laws. Ironically, App 2014) - Defendants are legally entitled to despite the frequency of their use and their application an itemized bill of costs. A bill of costs does throughout history, the underpinnings of fi nes are rarely not need to be presented to the trial court before independently examined outside the context of other legal costs can be imposed upon conviction.6 issues. Peraza v. State, 467 S.W.3d 508 (Tex. Crim. Class C misdemeanors (“fi ne-only” offenses) are typically App. 2015) - A court cost need not arise out of thought of as being punishable by a fi ne of up to $500. the defendant’s particular prosecution in order However, this “fi ne-only” misnomer is only true of to be legitimate. Furthermore, as long as the 4 misdemeanors defi ned in the Penal Code. It inaccurately statutory assessment is reasonably related to refl ects the range of fi nes for municipal ordinance the costs of administering the criminal justice violations for which the fi ne range can potentially be as system, it is not a tax in violation of separation high as $4,000.5 Furthermore, it inaccurately refl ects the of powers.

Page 13 SPECIAL EDITION The Recorder potential maximum fi ne for offenses defi ned elsewhere in state law. The Penal Code provides that all state law violations defi ned outside of the Penal Code are to be prosecuted as a Class C misdemeanor as long as they are punishable by a fi ne only.7 Thus, for such non-Penal Code criminal offenses, the maximum fi ne amount is determined by the Legislature.8 Court Costs (are not Fines)

While society has long supported the imposition of “ﬁ nes” as punishment for common criminal offenses, what is unclear is whether the public supports (or is even aware) that “court costs” are being used to pay for governmental expenditures which are debatably not related to the criminal justice system, let alone the matter that landed the defendant in court.

In the United States, terminology and defi nitions vary from state to state when it comes to terms used to describe court-related revenues.9 Nationally, however, a general characteristic of such revenues is that they are created by legislative bodies (not courts) and their imposition by courts is mandatory and not subject to the discretion of judges.10 Furthermore, according to an attorney general opinion, a court may not order a defendant to pay a fi ne (which is retained by local governments) before court costs (which are remitted to the state treasury).11 Despite the tendency of the public to confl ate fi nes, court costs, and fees, each is legally distinct. With noted exceptions, the media has done little to delve into such distinctions or to increase public awareness of how court costs and fees are actually utilized in Texas.12 These distinctions, however, are increasingly of public importance, particularly amidst claims that local courts in Texas are turning jails into “debtors’ prisons” and where criminal court costs have dramatically increased 1,060 percent since 1965.13

1. Carl Reynolds and Jerry Hall, Courts are Not Revenue (Section 681.011, Transportation Code) and operating a Centers, Conference of State Court Administrators (2011) at motor vehicle without fi nancial responsibility (minimum fi ne 2. of $175 unless a court determines that a defendant has not 2. Id. previously been convicted of the offense and is economically 3. Martin H. Pritikin, Fine-Labor: The Symbiosis Between unable to pay $175) (Section 601.191, Transportation Code). Monetary and Work Sanctions, 81 U. Colo. L. Rev. 343, 350 City councils can also proscribe via ordinances a fi xed fi ne (2010). amount or create mandatory minimum fi nes. 4. Section 12.23, Penal Code. 11. Article 45.041(b)(1) of the Code of Criminal Procedure 5. Article 4.14(a)(2), Code of Criminal Procedure; Section allows a justice or municipal judge to order payment 29.003(a)(1), Government Code. structured as a lump sum, or in installments. However, the 6. H.B. 287 (2015) amended Article 103.001 of the Code statute does not allow the justice or judge to require the fi ne of Criminal Procedure to require that a bill of costs be be paid before the costs are satisfi ed. This allocation rule physically provided to a criminal defendant in either a dates back to Attorney General Opinion Nos. O-755 (1939), county or district courts, but makes no such requirement for and O-469 (1939). As these opinions articulate the rule, municipal and justice courts. where only a part of a fi ne and costs are collected, the money 7. Section 12.41(3), Penal Code. should go fi rst pro-rata to the state court costs until the 8. The Legislature in 1997 clarifi ed that “fi ne only” means that full amount is satisfi ed, and the balance, if any, to the fi ne. courts may impose sanctions not consisting of confi nement Attorney General Opinion No. GA-147 (2004). in jail or imprisonment and that imposition of a sanction 12. Eric Dexheimer, “Hard-up defendants pay as state siphons or denial, suspension, or revocation of a privilege does not court fees for unrelated uses,” Austin American Statesman affect the original jurisdiction of the local trial courts in (March 3, 2012); Eric Dexheimer, “Even court offi cials fi nd Texas. Articles 4.11 and 4.14, Code of Criminal Procedure; fees hard to untangle,” Austin American Statesman (March 3, Section 29.003, Government Code. To be clear, prohibition 2012). of confi nement in jail or imprisonment is distinct from 13. The percent increase is represented in Dan Feldstein’s ‘Loser commitment to jail when the defendant defaults of the fees’ taking place of new taxes, Houston Chronicle, March 5, judgment, which is authorized by Article 45.046 of the Code 2006. of Criminal Procedure. 9. Id. 10. While judges typically have discretion in imposing fi nes within a statutory range of punishment, it is not guaranteed. Legislative bodies can prescribe a fi xed fi ne amount and create mandatory minimum fi nes (even when the offense has a fi ne range). Examples in Texas include unauthorized use of disabled parking violation (minimum fi ne of $500) Page 14 SPECIAL EDITION The Recorder Making Meaningful Use of the Fine Range Consideration of a defendant’s ability to pay is a matter of judicial discretion. Does the Constitution require that fi nes be custom tailored to avoid disproportionate burdens on low-income defendants? No. While there are positive aspects of custom tailored fi nes, the Constitution does not require a fi ne to be custom tailored to avoid disproportionate burdens on low-income defendants. In San Antonio Independent School District v. Rodriguez (1973), the U.S. Supreme Court, citing Tate v. Short, stated that it had “not held that fi nes must be structured to refl ect each person’s ability to pay in order to avoid disproportionate burdens. Sentencing judges may, and often do, consider the defendant’s ability to pay, but in such circumstances they are guided by sound judicial discretion rather than by constitutional mandate.”1 Other than in cases involving capital punishment, the 8th Amendment does not mandate individualized sentencing. The 8th Amendment, as distinguished from the Due Process Clause, imposes no apparent limitation on the discretion of the sentencing entity, be it judge or jury, including any requirement that punishment be informed by the particular circumstances of the offense and/or the offender.2 Some judges assess the amount of the fi ne based on circumstances of the case such as the type of crime, frequency, and fl agrancy, reserving consideration of ability to pay until deciding the method of discharging the fi ne. Some judges consider ability to pay at sentencing. Both are constitutionally permissible and within the bounds of judicial discretion. Day Fines: Fines Based on a Defendant’s Earnings One proposed alternative to reduce incarceration of individuals who are unable to pay legal fi nancial obligations is basing fi nes on a defendant’s earnings.3 During the late 1980s and early 1990s, American courts were introduced to “day fi nes” through a series of pilot programs directed by the Vera Institute. Day fi nes are an alternative to the traditional fi xed fi ne in the United States and are based on an offender’s fi nancial means. Typically, the day fi ne is calculated using a unit scale, where certain crimes are assigned a specifi c number or range of units.4 Each unit is then valued in a manner tailored to the particular offender, taking into account his or her fi nancial means through the consideration of net daily income, adjusted downward for factors like subsistence needs and familial responsibilities.5 To reach the total fi ne amount, the number of units is multiplied by the personalized unit value.6 The purpose of the day fi ne is to punish offenders proportionately, The 8th Amendment, balancing the offenders’ fi nancial means with the crimes committed, and as distinguished from in theory representing a single day of incarceration without salary. Day fi nes have been analyzed and applied in a multitude of scenarios: some the Due Process studies apply them to minor offenses already punishable by fi xed fi nes, Clause, imposes no some try to use day fi nes as an intermediate sanction to replace probation apparent limitation on or imprisonment, while others use day fi nes in combination with other the discretion of the sanctions. Notably, day fi nes are no longer being tested in the United sentencing entity, be it States and are only of novel issue because of the recent growing interest in judge or jury, including and concerns about alleged “debtors’ prisons” and criminal justice reform, any requirement that generally. punishment be informed by the particular Issues and Shortcomings of a Day Fine System circumstances of the Part of the reason that day fi nes are not already used in the United States offense and/or the (as opposed to Great Britain) is the fact that our country is founded on offender. common law, where punishment is suited to the crime rather than the criminal— “departure from these socially entrenched norms is not easy.”7 Procedural issues abound with the day fi ne system. One major obstacle to the day fi ne system is access to fi nancial information by the courts. If the defendant will not provide the information, how does the court get it? While a defendant desiring a low fi ne may be willing to disclose fi nancial information, a defendant facing a large fi ne due to income level may not. There are potential 5th Amendment and privacy concerns involved with forcing individuals to provide information that would incriminate them in a punitive sense.8 The IRS is not permitted to turn over tax information.9 Federal and state laws prohibit disclosure by fi nancial institutions without consent of the offender.10 If income is self-reported, this calls into question reliability and trustworthiness, jeopardizing the “just” and “equitable” purpose of day fi nes.11

Page 15 SPECIAL EDITION The Recorder Another risk of the day fi ne system is its effect on crime.12 If the punishment value decreases based on income, poorer individuals have a heightened incentive to commit the crime—they may experience a net monetary gain overall, or the crime may become more “worth it” from a non-monetary perspective if it is within their ability to pay a fi ne with ease.13 Raising the maximum fi ne amount only serves to punish high income offenders to a greater extent, leaving low income offenders at an advantage only by comparison; day fi nes’ only punitive value in this scenario would be in imposing extra punishment on offenders who are more well-off. A day fi ne system may be too costly. Costs include collection and enforcement systems, training for judges and other court personnel on how to calculate day fi nes (calculating the day fi ne is itself an obstacle14), and staff employment and time commitment required to track payments and follow up with those who default.15 Contrast this with the current system of only making this type of inquiry for indigent defendants instead of all defendants. The current system also gives the judge discretion to make the type of inquiry that best suits individuals and the court in each respective community, without having to resort to a strict calculation that applies across the state. Day fi nes do not necessarily improve compliance rates. The courts may still have to resort to jail, community service, and civil procedures to effectuate some sort of sanction.16 Meaningful Use of the Fine Range While day fi nes are not likely to grace the pages of Texas law books, courts are encouraged to make meaningful use of the fi ne range. Fine schedules have utility but also have inherent limitations. Similar to writing prospective fi ne amounts on arrest warrants prior to a judgment, fi ne schedules can be misconstrued to mean that there is no fi ne range or that judges are not willing to consider the full range of punishment. Due process requires trial judges to be neutral and detached in assessing punishment.17 A trial court denies a defendant due process when it arbitrarily refuses to consider the entire range of punishment or imposes a predetermined punishment.18 What factors the judge uses in considering the entire fi ne range and the weight given to such factors is purely a matter of judicial discretion, guided by the Canons of Judicial Conduct.

1. 411 U.S. 1, 21-22 (1973). Neither Williams nor Tate touch 7. Lance R. Hignite & Mark Kellar, Day Fines, The on the question whether equal protection is denied to persons Encyclopedia of Criminology and Criminal Justice (Jay S. with relatively less money on whom designated fi nes Albanese, 2014) at 1-2. impose heavier burdens. “In San Antonio School District v. 8. Gary M. Friedman, The West German Day Fine System: A Rodriguez, the Supreme Court expressly held that poverty Possibility for the United States?, 50. U. Chi. L. Rev. 281, is not a suspect classifi cation and that discrimination against 299-300 (1983). the poor should only receive rational basis review.” Erwin 9. Id. Chemerinsky, Constitutional Law: Principles and Policies 10. Edwin W. Zedlewski, Alternatives to Custodial Supervision: (3d ed. 2006) at 786. The Day Fine, p. 8 (National Institute of Justice, 2. The Court of Criminal Appeals has stated “aside from a few Washington, D.C. 2010). specifi c instances where the range of punishment depends 11. Id. at 9. upon the determination of discrete facts, ‘[d]eciding what 12. Friedman at 302. punishment to assess is a normative process, not intrinsically 13. Id. factbound.’ Indeed, we have described the sentencer’s 14. Zedlewski, pp. 3, 6-7. discretion to impose any punishment within the prescribed 15. Friedman at 302. range to be essentially ‘unfettered.’ Subject only to a very 16. Zedlewski, p. 8. limited, ‘exceedingly rare,’ and somewhat amorphous Eighth 17. Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. Amendment gross-disproportionality review, a punishment 2006). See also, Jefferson v. State, 803 S.W.2d 470, 471-472 that falls within the legislatively prescribed range, and that (Tex. App.--Dallas 1991, pet. ref’d) (reversal of trial court is based upon the sentencer’s informed normative judgment, where the trial court told the defendant upon deferring his is unassailable on appeal.” Ex parte Chavez, 213 S.W.3d sentence that, if he violated his probation, the maximum 320, 323-324 n.20 (Tex. Crim. App. 2006) citing Harmelin v. sentence would be imposed, the court fi nding ta denial of Michigan, 501 U.S. 957, 995 (1991). due process of law because the trial court’s action effectively 3. Neil L. Sobol, Article: Charging the Poor: Criminal Justice excluded evidence relevant to punishment, it precluded Debt & Modern Day Debtors’ Prisons, 75 Md. L. Rev. 486, consideration of the full range of punishment prescribed by 524-532. law, and it deprived Jefferson of a fair and impartial tribunal 4. See, Bureau of Justice Assistance, How to Use Structured at the punishment hearing.) Fines (Day Fines) as an Intermediate Sanction, p. 16 (1996). 18. Id.; See McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. 5. Id. App. 1983) (Overruled in part on other grounds by De Leon 6. Id. v. Aguilar, 127 S.W.3d 1, 6 (Tex. Crim. App. 2004)).

Page 16 SPECIAL EDITION The Recorder Defi ning Indigence The challenge is not just formulation, it is application. While judges need more “tools,” the Legislature has wisely avoided a “one-size-fi ts-all” approach. Judges need tools to determine whether a defendant is able to pay the fi ne and costs assessed in a case. In Class C misdemeanor cases, this determination is relevant at the time of judgment,1 upon a default in the Whether or not a discharge of the judgment,2 and before commitment to jail.3 How is a judge particular defendant to know if a defendant is indigent? is able to pay the fi ne and costs is a complex Indigence Undefi ned determination involving numerous factors that In terms of fi ne-only offenses, there is no statutorily prescribed means test. widely vary depending The Code of Criminal Procedure neither requires a judge to make an inquiry as to the defendant’s ability to pay the fi ne and court costs before sentencing, on where a defendant nor does it contain guidelines for conducting an indigence hearing. Perhaps lives, especially in there are good reasons for that. Whether or not a particular defendant is able a state as large and to pay the fi ne and costs is a complex determination involving numerous diverse as Texas. factors that widely vary depending on where a defendant lives, especially in a state as large and diverse as Texas. The U.S. Supreme Court has made no attempt to defi ne indigence, leaving that duty to state legislatures. Texas statutes like Articles 45.041, 45.046, and 45.049 provide judicial discretion in determining whether a defendant is indigent, without defi ning indigence. This allows a judge to consider all relevant facts when applying the law in each specifi c case, whereas a statutory defi nition of indigence, especially one with a formulaic approach, may prove unrealistic and either too exclusive (burdening defendants who do not meet the defi nition, but are unable to pay) or too inclusive (burdening courts of varying volume with consumption of time and resources). It would be an attempt to standardize what is arguably not subject to precise measurement—an exact point on an economic scale where all defendants in Texas are unable to pay their fi ne and costs. Tools for Determining Ability to Pay Whether or not such a point can be determined, judges need tools to apply the law within their own communities, be it Houston or Gun Barrel City. The federal poverty The Federal Poverty Guidelines, published each year in the Federal Register guidelines do not by the Department of Health and Human Services, are an inadequate account for specifi c tool for several reasons. The poverty thresholds were developed in 1963- family composition or 64 by Mollie Orshansky, an economist working for the Social Security geographic location Administration.4 As Orshansky later indicated, her purpose was not to within the United States, introduce a new general measure of poverty, but instead to develop a let alone within a measure to assess the relative risks of low economic status among different particular state. demographic groups of families with children.5 They were based solely on the cost of food in plans prepared by the Department of Agriculture.6 This is because no generally accepted standards existed of the minimum needed for all that is essential for a family to live “at a designated level of well-being” (such as housing, medical care, clothing, child care, and transportation).7 Updated only for infl ation each year, the guidelines assume that one- third of household income is spent on food,8 not taking into account changes in household budgets over the last 50 years.9 The guidelines do not account for specifi c family composition or geographic location within the United States, let alone within a particular state.10 Self-Suffi ciency Standard Other tools exist that account for a wider range of household budget items and geographic location. The Self-Suffi ciency Standard, created by the Center for Women’s Welfare, is a budget-based measure of the cost of living and a self-proclaimed alternative to the federal poverty measure.11 It takes into account family composition, ages of children, and geographic differences in costs to defi ne the amount of income necessary to meet basic needs at a minimally adequate level. However, data is not available for every state. While some states have data for multiple years and data as recent as 2015, Texas only has data for the year 1996.12

Page 17 SPECIAL EDITION The Recorder Living Wage Calculator

The Living Wage Calculator, developed by Dr. Amy K. Glasmeier It is up to the judge at the Massachusetts Institute of Technology in 2004, estimates the living wage needed to support families (12 different compositions) to decide what to based on geographically specifi c expenditure data related to a family’s consider in determining likely minimum costs for food, child care, health insurance, housing, whether a defendant is transportation, and other basic necessities.13 Data for Texas is available by able to pay the fi ne and county. To use the calculator, a judge would need the composition of the costs and how to weigh family (number of adults and number of children) and income information each fact. for all working adults in the family. Judicial Discretion Judicial discretion means choosing the right tool in each case. It is up to the judge to decide what to consider in determining whether a defendant is able to pay the fi ne and costs and how to weigh each fact. The chosen level of complexity of that process directly affects the burden on the defendant to show that he or she is indigent and the burden on the court to effi ciently dispose of cases. As mentioned, if using the Living Wage Calculator, defendants would have to provide their income and the size of their family or household. Compare this to requiring a defendant to list all assets, credit rating, retirement, and government assistance. How big a fi nancial picture does the judge need to see? Should a judge delve into personal fi nancial choices or take on the role of fi nancial advisor? How strictly does a judge construe the word “unable” regarding the ability to pay? These questions are answered using the discretion of the judge.

1. Article 45.041(b-2), Code of Criminal Procedure. 7. Id. 2. Articles 45.049 and 45.0491, Code of Criminal Procedure. 8. Id. at 5. 3. Article 45.046, Code of Criminal Procedure. Note that 9. John P. Gross, Too Poor to Hire a Lawyer but Not Indigent: it is not relevant to appointment of counsel because a How States Use the Federal Poverty Guidelines to Deprive Class C misdemeanor case, though an adversarial judicial Defendants of their Sixth Amendment Right to Counsel, 70 proceeding, is not one that “may result in punishment by Wash. & Lee L. Rev. 1173, 1205 (2013). confi nement;” the sentence is limited to the payment of 10. Id. the fi ne and costs to the state. See, Articles 1.051(c) and 11. Center for Women’s Welfare, University of Washington, 45.041(a), Code of Criminal Procedure. The Self-Suffi ciency Standard, http://www. 4. Gordon M. Fisher, The Development and History of the selfsuffi ciencystandard.org/ (accessed August 10, 2016). Poverty Thresholds, Social Security Bulletin, Vol. 5, No. 4 12. http://selfsuffi ciencystandard.org/texas. (1992). 13. Living Wage Calculator, http://livingwage.mit.edu/pages/ 5. Id. about (accessed August 10, 2016). 6. Id. at 4.

http://livingwage.mit.edu/

Page 18 SPECIAL EDITION The Recorder An Incomplete Picture: State Data and Indigence While some data is better than none, state and local governments are urged to exercise caution.

OCA Data Available Data Unavailable Number of Cases Filed Number of Defendants and Number Determined to be Indigent Number of Failure to Appear (FTA) and Violate Promise to Appear (VPTA); Number Dismissed Number of Cases Number of Indigence Determinations Disposed Number of Cases Satisfi ed with Jail Time Prior to Court Appearance or Trial Number of Cases per Defendant per Year Number of Cases Whether Defendant Was Held on Higher Charges; Number of Days Served Satisfi ed with Jail Time Fines Satisfi ed by Jail Credit Consecutively vs. Concurrently; Number of Days Served; Dollar Amounts Credited Number of Capias Pro Fine (CPF) Cases which End in Arrest and Jail Time Number of Cases with Dollar Amount Satisfi ed with Community Service Community Service Restitution (CSR) Total Dollar Amount Number of Cases with Extensions and Amount Paid; Length of Time Between Paid Judgment and Final Payment The Offi ce of Court Administration (OCA) collects various data on court operations. Although this data certainly has utility, it paints an incomplete picture when it comes to assessing indigence issues in criminal courts. OCA does not purport to paint a complete picture with the data collected, cautioning at the outset of the Annual Report that its “statistics do not attempt to portray everything courts or judges do, or how much time is spent on court-related activities not represented” in the data collected.1 Extrapolating information on the treatment of indigent defendants under the law from incomplete data can serve to create inaccurate perceptions of court processes, and create problems where none may exist. The following analysis will address specifi c data currently collected, and why that data should not be used exclusively to assess the treatment of indigent defendants in Texas courts. Number of Cases Filed Although the total number of cases fi led is useful, it is not suffi cient in isolation to assess the need for criminal justice reform. One complaint leveled at municipal courts across the nation is “piling on” fi nes and costs for defendants who fail to appear (FTA or VPTA).2 Because FTA is a separate criminal offense,3 a fi ne, warrant fee, and court costs accompany it. Contrast this with mere non-appearance that does not result in a charge of FTA, but results in a warrant and the accompanying warrant fee. Current data does not delineate between the two scenarios. To add confusion, “FTA” is used by some to describe both scenarios. Do indigent defendants tend to have more cases-per-person than non-indigent defendants, as has been alleged?4 No data exists to answer that question. Without knowing the number of cases per defendant, and how many of those cases are related to a defendant’s failure to appear (distinguishing those cases with a FTA charge and without), it is diffi cult to say with any certainty whether these complaints are applicable to Texas courts. Basing these accusations on the simple number of cases fi led gives an inaccurate assessment. Number of Cases Disposed The number of cases disposed is a metric applicable to determining the overall volume of cases and their movement through the casefl ow process in criminal courts. However, this does not paint any picture of the treatment of indigent defendants in these courts. Judges may make indigence determinations at magistration, at the time of judgment, and upon default in discharging the judgment. Prior to committing a defendant to jail for defaulting in the discharge of the judgment, judges must make a written determination at a hearing that the defendant (1) is not indigent and has failed to make a good faith effort to discharge the fi ne and costs, or (2) is Page 19 SPECIAL EDITION The Recorder indigent and has failed to make a good faith effort to discharge the fi nes and costs through community service and could have done so without experiencing any undue hardship. How many indigence determinations occur each year in Texas courts? How many disposed cases resulted in a determination that the defendant could not pay? There is no data to answer those questions. Number of Cases Satisfi ed with Jail Time One complaint levied against municipal courts is that, when a defendant owes $5,000 in fi nes, that defendant will likely serve 100 days in jail (at the minimum statutorily prescribed rate of $50 per day).7 However, this presumes that the fi nes will be satisfi ed consecutively, and at the statutory minimum rate per day for fi ne-only offenses.8 Anecdotal evidence suggests that judges often convert fi nes to jail time to be discharged concurrently. Judges might also give jail credit to defendants being held in jail on higher charges, either before or after the defendant served time in jail on those non-Class C misdemeanor charges. How often does this occur? There is no data on how many days defendants given jail credit served in jail or how many dollars were satisfi ed with jail time. There is no data on the number of cases disposed of with jail credit prior to a court appearance or trial. Use of the capias pro fi ne9 in fi ne-only cases is often the subject of criticism.10 In cases where the judgment is satisfi ed with jail time credit, how often were capiases pro fi ne issued? In cases where a capias pro fi ne was issued, how often did it result in commitment to jail? How often did it result in release? How often was the defendant given other options to discharge the judgment? If released, how often was jail time credit given for any time served on the capias pro fi ne? How much credit? There is no data. Total Dollar Amount Paid Extensions to pay and payment plans are examples of “alternative means.” The U.S. Supreme Court has ruled that alternative means must be made available by courts for indigent defendants.11 Courts are still accused of applying a “pay or lay” policy12 even though that practice was ruled illegal in 1971.13 Anecdotal evidence suggests that many courts offer payment plans and extensions as standard practice to any defendant, whether indigent or not. How often? That is hard to say without data. Merely knowing the reported number of cases satisfi ed and the dollar amount paid does not demonstrate whether, why, or how various alternative means are being used by courts. Without knowing the number of cases with extensions given or the length of time between judgment and fi nal payment, it is impossible to answer those questions. More Data Needed The key to making an informed assessment of court processes is more data. The data available through OCA is useful for assessing many subjects, but is insuffi cient for the specifi c purpose of levying complaints against a criminal court’s treatment of indigent defendants. Courts are encouraged to collect their own relevant data beyond that which is required by OCA in order to get a full picture of how they are handling cases involving indigent defendants.

1. Offi ce of Court Administration, Cautionary Statement, 6. Article 45.046, Code of Criminal Procedure. Annual Report for the Texas Judiciary, Fiscal Year 2010, p. 7. Article 45.045, Code of Criminal Procedure. 21. 8. See, e.g., U.S. Dep’t of Justice, Investigation of the Ferguson 2. American Civil Liberties Union, Modern Day Debtors’ Police Department at 9 (2015); Class Action Complaint, Prisons: The Ways Court-Imposed Debts Punish People for Gonzales v. City of Austin, 1:15-cv-00956-SS, Section 64, et. Being Poor, p. 9 (2014). seq. (October 27, 2015). 3. Generally, the offenses based upon a defendant’s failure to 9. Tate v. Short, 401 U.S. 395 (1971). appear are Failure to Appear, defi ned in Section 38.10, Penal 10. See, e.g., Department of Justice, Supra, note 1, at 3; Second Code, and Violation of Promise to Appear, defi ned in Section Amended Complaint – Class Action, McKee et. al. v. City of 543.009, Transportation Code. Amarillo, 2:16-cv-00009-J (2015); Class Action Complaint, 4. See, e.g., American Civil Liberties Union, In for a Penny; Gonzales et. al. v. City of Austin, 15-cv-00956-SS (2015). VERA Institute, Incarceration’s Front Door; Texas Criminal 11. Tate, 401 U.S. at 399. Justice Coalition, Wrong Way for Texas. 12. U.S. Dep’t of Justice, Investigation of the Ferguson Police 5. Taggart and Cambell, In Texas, It’s A Crime to be Poor, Department (2015). BuzzFeed (Oct. 7, 2015, 4:21 PM) https://www.buzzfeed. 13. Id. at 1. com/kendalltaggart/in-texas-its-a-crime-to-be-poor.

Page 20 SPECIAL EDITION The Recorder In the Shadow of Bearden, Guidance from Case Law, and the Texas Code of Criminal Procedure, the Case for “Show Cause” Hearings Prior to Issuing a Capias Pro Fine

Twenty-six years ago the U.S. Supreme Court in Bearden v. Georgia warned that analysis of such legal issues “cannot be resolved by resort to easy slogans or pigeonhole analysis.”1 This remains true today. Part One of this article focuses on Bearden and related case law. Part Two addresses what Texas has done to comply with Bearden and why show cause hearings in municipal and justice courts are an important step to ensuring the kind of fundamental fairness required by Bearden. Part One: The Trilogy

What role does Bearden play in consideration of indigence matters? Bearden is best understood as part of a trilogy of Supreme Court decisions having to do with fi nes, costs, indigence, and incarceration. The holding in Bearden is predicated upon two prior decisions. Williams v. Illinois (1970) is about whether a defendant sentenced to a term of incarceration and a fi ne had to spend additional time behind bars to discharge fi nes and costs. The Court held it violates the Equal Protection Clause of the 14th Amendment. Tate v. Short (1971) is about whether an indigent defendant convicted and sentenced to pay a fi ne and costs can have the fi ne and costs automatically converted to jail time simply because the defendant cannot immediately pay the fi ne in full. The Court, relying on Williams, held it similarly violates the Equal Protection Clause. Notably, Tate effectively mandated states to devise and courts to allow such defendants “alternative means” to discharge fi nes and costs. (See, page 28 of this issue of The Recorder.) Bearden v. Georgia (1983) is about whether a sentencing court can revoke a defendant’s probation for failure to pay a fi ne and make restitution, absent evidence and fi ndings that the defendant was responsible for the failure or that alternative forms of punishment were inadequate to meet the State’s interest in punishment and deterrence. The Court, relying on Williams and Tate, held it violates fundamental fairness required by the 14th Amendment. Despite being inextricably linked to Williams and Tate by the 14th Amendment, it is important to note that Bearden was not decided on equal protection grounds. The Court’s pivot to “fundamental fairness” is signifi cant and should not be overlooked. Shortly after Tate, but prior to Bearden, the Court in San Antonio Independent School District v. Rodriguez (1973) held that the poor are not a suspect class2 for purposes of equal protection analysis.3 While all three decisions advanced the rights of indigent defendants, none of the decisions promoted inverse discrimination or precluded “imprisonment as an enforcement method when alternative means are unsuccessful despite the defendant’s reasonable efforts to satisfy the fi nes by those means.”4 In reiterating the holdings of Williams and Tate, the Court in Bearden “recognized limits on the principle of protecting indigents in the criminal justice system.”5

Despite Bearden: Indigent Status Does Not Categorically Preclude the Possibility of Jail

Citing Williams and Tate, Bearden held that when the state determines that a fi ne or restitution are an adequate penalty for a crime, it may not imprison a defendant solely because the defendant lacked the resources to pay it. If, however, the probationer (1) has willfully refused to pay the fi ne or restitution when he has the ability to pay or (2) has failed to make suffi cient bona fi de efforts to seek employment or borrow money, the state is justifi ed in using imprisonment as a sanction to enforce collection.6

Page 21 SPECIAL EDITION The Recorder What Does “Willfully” Mean? Steps Leading Up to Commitment on a Capias Pro Fine Bearden does not defi ne “willfully.” Black’s Law Dictionary defi nes “willful” as meaning voluntary and Article 45.046 of the Code of Criminal Procedure intentional. In Bearden, “the Supreme Court didn't tell courts how to determine what it means to ‘willfully’ not pay. So it is left to judges to make the sometimes diffi cult calculations.” 7 What Does “Bona Fide” Mean? Bearden does not defi ne “bona fi de.” However, Black’s Law Dictionary defi nes it as meaning made in good faith; without fraud or deceit. Sincere; genuine. The opposite of bona fi de is fake. Thus, when a person makes a bona fi de effort, they are making a true, sincere, good faith effort to do something. State Implementation and Uncertainty Regardless whether a Surrounding state has attempted to Bearden codify Bearden, each state and its judges are The essence of bound to comply with its the modern debate holding. surrounding Bearden is that, for better or worse, the Supreme Court did not superimpose procedural steps that all state trial courts must follow. Because the laws of each state vary, there is no uniformity in how Bearden has been implemented. While some states have amended their laws to refl ect the holding in Bearden, others states have not. Regardless whether a state has attempted to codify Bearden, each state and its judges are bound to comply with its holding. The problem is that in absence of Bearden procedures in state law, the U.S. Supreme Court decision provides minimal guidance. This, in turn, increases the potential probability of debates surrounding whether a court is meeting its legal obligation under the U.S. Constitution in light of Bearden. Since it was decided in 1983, state courts throughout the United States have had to deal with the uncertainties surrounding Bearden.8 More than 30 years later, Bearden continues to be a source of confl ict in state courts.9 *Prior to ordering a defendant confi ned to jail (commitment order), Article 45.046 of the Code of Criminal Procedure requires a hearing and a written determination that the defendant either (1) is not indigent and has failed to make a good faith effort to discharge the fi ne and costs; or (2) the defendant is indigent and (a) has failed to make a good faith effort to discharge the fi nes and costs under Article 45.049 (community service) and (b) could have discharged the fi nes and costs under Article 45.049 without experiencing any undue hardship.

Page 22 SPECIAL EDITION The Recorder Part Two: Bearden in Texas While Bearden involved fi nes and fees, its holding is less straightforward than the holding in Tate. Implementing and complying with the U.S. Supreme Court decision in Tate v. Short (1971)10 was relatively easy for Texas. Tate began in the Houston Municipal Court and was about the Texas Code of Criminal Procedure and its requirement that if the defendant could not pay the fi ne and costs in full, the fi ne and costs were automatically converted to a period of The Court of Criminal incarceration.11 Bearden involved Georgia’s First Offender Program, Appeals has stated a felony offense, probation revocation, and a sentence of two years in that separate and prison.12 Bearden did not involve a sentence consisting solely of a fi ne and distinct from the Code costs, a capias pro fi ne, or statutes similar to Texas law. of Criminal Procedure, “Bearden prescribes There may be limitations in extrapolating the holding in Bearden.13 a mandatory judicial Nuanced and specifi c issues in Chapter 45 of the Code of Criminal directive.” Procedure, governing municipal and justice court proceedings, have not been considered by the Texas Court of Criminal Appeals or the U.S. Supreme Court. Nevertheless, opinions from the U.S. 5th Circuit Court of Appeals and the Texarkana Court of Appeals make it evident that municipal judges and justices of the peace are bound by the holding in Bearden.14 Instructively, the Court of Criminal Appeals has stated that separate and distinct from the Code of Criminal Procedure, “Bearden prescribes a mandatory judicial directive.”15 The Code of Criminal Procedure It is worth reiterating that state legislatures are under no obligation to codify case law. Texas has amended some provisions in the Code of Criminal Procedure to ensure indigent criminal defendants the protections provided by Tate and Bearden, but not in others. The Commitment Hearing Texas law does not specify when indigence must be determined (See, page 17 of this issue of The Recorder). Bearden is a narrow decision and does not require a sentencing court to determine a defendant’s ability to pay at sentencing.16 In accordance with Tate, however, such a determination must be made prior to committing a defendant to jail for failure to pay fi nes and costs. To be clear, when a judgment and sentence have been entered against a defendant and the defendant defaults in the discharge of the judgment, To be clear, when a Texas law does not authorize a judge to order arrest and commitment in judgment and sentence jail for non-payment of fi nes and costs absent a prompt hearing and written have been entered determinations. against a defendant and the defendant defaults A capias pro fi ne (Latin for “that you take for the fi ne”) is a post-judgment in the discharge of the writ issued by the convicting trial court after judgment and sentence for judgment, Texas law unpaid fi nes and costs ordering any peace offi cer of Texas to arrest the does not authorize a convicted person and bring them before the court immediately or place judge to order arrest the defendant in jail until the next business day if the defendant cannot be 17 and commitment in immediately brought before the court. jail for non-payment of Article 45.045(a) requires that individuals arrested on a capias pro fi ne fi nes and costs absent be brought immediately before the issuing court or placed in jail until the a prompt hearing and business day following the arrest. Article 45.046(c) allows commitment written determinations. hearings to be conducted by means of an electronic broadcast system (e.g., Internet videoconferencing).18 A capias pro fi ne is not a commitment order. Preference is given to the defendant being brought immediately before the court. Anecdotal evidence suggests that this rarely happens. For practical and security reasons, judges

Page 23 SPECIAL EDITION The Recorder often go to where the defendant is jailed (assuming, of course, that they have been notifi ed that the defendant is in custody). Because judges commonly associate trips to jail as part of their magistrate duties, it is important for judges to understand that a commitment order is not a magistrate function, but rather a duty of a judge. It is similarly imperative that law enforcement, court, and jail staff understand: Effective communication is required. Time is of the essence. When a court issues a capias pro fi ne, and the defendant is arrested, what happens next determines whether a judge is in compliance with Texas law and what the Court of Criminal Appeals described as the “mandatory judicial directive” of Bearden.19 Article 45.046(a) authorizes a court to order a defendant to be confi ned when a judgment and sentence have been entered against a defendant and the defendant defaults in the discharge of the judgment if the court makes a written determination at a hearing that the defendant is either: (1) not indigent and has failed to make a good faith effort to discharge the fi nes and costs; or (2) indigent and has failed to make a good faith effort to discharge the fi nes and costs by performing community service and could have performed such community service without experiencing any undue hardship. Prior to commitment, the judge must affi rmatively fi nd that the defendant failed to make a good faith effort to discharge the judgment. Article 45.046 encapsulates the Bearden line of cases which “endeavors to shield criminal justice debtors making a good faith effort while leaving nonpayment unprotected.”20 Probation Revocation As Bearden is a probation revocation case, its infl uence is evident in some of the “probationary statutes” contained in the Code of Criminal Procedure. In county and district court proceedings, the Texas Legislature has partially codifi ed Bearden’s “ability to pay” determination in the context of revoking community supervision for failure to pay fees and costs (but not fi nes).21 The statute, Article 42.12, Section 21(c), is inapplicable to municipal and justice courts. In municipal and justice courts, when a defendant fails to submit proof of completion of a driving safety course,22 or fails to submit proof of In Texas, the compliance with the terms of deferred disposition,23 judges are required commitment hearing to give defendants a show-cause hearing before imposing a sentence or required by the Code enforcing its judgment. This begs an obvious question. of Criminal Procedure is the primary Bearden Is it an oversight in Texas law that there is no statutory requirement that safeguard. Show-Cause criminal defendants be given a show-cause hearing prior to the issuance of a hearings before the capias pro fi ne for failure to discharge a fi ne or costs? issuance of a capias pro Perhaps it is not. Not if a proper commitment hearing and written fi ne, even if mandated determinations are made per Article 45.046. Nevertheless, under current law by the Legislature, the commitment hearing occurs after arrest and typically at the jail. would be a preliminary safeguard (not a “Show-Cause” Hearings Prior to Issuing a Capias Pro Fine in Texas substitute). Requiring show-cause hearings before issuance of a capias pro fi ne is an additional safeguard that has the potential to prevent indigent defendants from being arrested solely over matters of money. Although they are not currently mandated by the Code of Criminal Procedure, some believe they are an essential part of complying with Bearden. There are obvious benefi ts to mandating show-cause hearings prior to issuing a capias pro fi ne. In terms of Bearden, ordering a show-cause hearing potentially allows consideration of a defendant’s ability to pay and allows judges an opportunity to consider the circumstances surrounding failure to discharge the judgment through alternative means. (This, of course, assumes the defendant appears: See, Safe Harbor Policies: Why Arrest Is Not Always the Best on page 26 of this issue of The Recorder). When used this way, show cause hearings have the potential to help courts, law enforcement, and jails save time and money.

Page 24 SPECIAL EDITION The Recorder Conclusion Questions about Bearden abound. Like Bearden, the answers and legal issues do not lend themselves to easy slogans or pigeonhole analysis. In Texas, the commitment hearing required by the Code of Criminal Procedure is the primary Bearden safeguard. Show-cause hearings before the issuance of a capias pro ﬁ ne, even if mandated by the Legislature, would be a preliminary safeguard (not a substitute).

1. Bearden v. Georgia, 461 U.S. 660, 666-667 (1983). was not unconstitutional merely because Tate was too poor 2. A “suspect class” is a group identifi ed or defi ned in a to pay his traffi c fi nes. Ex parte Tate, 445 S.W.2d 210 (Tex. suspect classifi cation, a statutory classifi cation based on Crim. App. 1969). The Supreme Court, however, disagreed. race, national origin, or alienage. If a state law impinges In reversing the Court of Criminal Appeals, it held that the on a fundamental right or operates to the disadvantage of a Equal Protection Clause of the 14th Amendment prohibits suspect class, the law passes constitutional muster only if it states from imposing a fi ne as a sentence and automatically survives strict scrutiny under equal-protection analysis. San converting it to a jail term solely because the defendant is Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 4 (1973). Tate See also, Black’s Law Dictionary. indigent and cannot pay the fi ne in full. , 401 U.S. at 399 3. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28-29 (1971). (1973) “[T]his Court has never heretofore held that wealth 12. In 1981, Danny Bearden pled guilty to burglary and theft. discrimination alone provides an adequate basis for invoking The trial court rather than entering a judgment of guilt strict scrutiny.” sentenced Bearden to probation on the condition that he 4. Tate v. Short, 401 U.S. 395, 400-01 (1971). pay a fi ne and restitution per an installment payment plan. 5. Bearden, 461 U.S. at 664-65. Bearden subsequently lost his job and despite repeated 6. Id. at 668. Emphasis added. efforts was unable to fi nd other work. Shortly before the 7. Critics claim this omission undercuts the holding in Bearden balance became due, he notifi ed the probation offi ce that his http://www.npr.org/2014/05/21/313118629/supreme-court- payment was going to be late. In response, the prosecution ruling-not-enough-to-prevent-debtors-prisons. fi led a motion to revoke Bearden’s probation; the trial court, 8. “[T]he Court creates a good deal of uncertainty for despite a trial record clearly indicating that Bearden had been trial courts attempting to implement the decision. First, unable to fi nd employment and had no assets or income, although the decision generally prohibits imprisonment entered a conviction and sentenced to Bearden to two years of probationers who are unable, despite good faith efforts, in prison. to pay their monetary conditions, it provides trial courts 13. “The limits of Bearden are unclear. Although the with no guidance in determining what evidence and broad language of Justice O'Connor's opinion suggests circumstances are suffi cient to establish an inability to pay. otherwise, Bearden may apply solely to situations in which Furthermore, although the decision contemplates situations probation is revoked for failure to pay a fi ne.” ARTICLE: where imprisonment of some probationers who are unable RATIONALITY VERSUS PROPORTIONALITY: to pay will be necessary to protect the state's interests, RECONSIDERING THE CONSTITUTIONAL LIMITS ON it provides trial courts with no guidance concerning the CRIMINAL SANCTIONS, 51 Tenn. L. Rev. 623, 651. th nature and quantity of evidence necessary to establish that 14. Garcia v. City of Abilene, 890 F.2d 773 (5 Cir. 1989); Ex no alternatives will adequately protect the state's interests. parte Burks, 2014 Tex. App. LEXIS 4507 (Unpublished Op). Trial courts will have to address these uncertainties as they 15. Gipson v. State, 3983 S.W.3d 152, 157 (Tex. Crim. App. implement the decision.” NOTE: EQUAL PROTECTION 2012). AND REVOCATION OF AN INDIGENT'S PROBATION 16. Wagner, Supra, n. 9 at 385. FOR FAILURE TO MEET MONETARY CONDITIONS: 17. Article 43.015(2), Code of Criminal Procedure. BEARDEN V. GEORGIA., 1985 Wis. L. Rev. 121, 152 18. Bill Summary S.B. 414, The Recorder (August 2009) at 7. 9. See generally, Wagner, Ann K. The Confl ict over Bearden v 19. Supra, note 14. Georgia in State Courts: Plea-Bargaining Probation Terms 20. Note: State Bans on Debtors’ Prisons and Criminal Justice and the Specter of Debtors’ Prison, 2010 U. Chi. Legal F. Debt, 129 Harvard L. Rev. 1024 (February 10, 2016). 383 (2010). 21. Gipson v. State, 428 S.W.3d 107, 108 (Tex.Crim. App. 2014). 10. The Equal Protection Clause of the 14th Amendment 22. Article 45.0511(i)-(k), Code of Criminal Procedure. prohibits states from imposing a fi ne as a sentence and 23. Article 45.051(c-1)-(d), Code of Criminal Procedure. automatically converting it to a jail term solely because the defendant is indigent and cannot pay the fi ne in full. 11. In 1969, Preston Tate was committed to the prison farm of the City of Houston by virtue of a capias pro fi ne from six traffi c convictions with aggregate fi nes totaling $425. The Court of Criminal Appeals, in overruling Tate’s contention, held that Tate’s status as an indigent did not render him immune from criminal prosecution and that imprisonment

Page 25 SPECIAL EDITION The Recorder “Safe Harbor” Policies: Why Arrest Is Not Always the Best

In an effort to address some of the main reasons defendants do not come to court to take care of their cases, some courts have implemented “safe harbor” policies, walk-in dockets, and hardship dockets aimed at reducing the number of people arrested. No-Arrest Policies Some defendants do not come to court for fear of being arrested. Presiding Judge Ed Spillane, College Station Municipal Court, knows this fi rsthand. “Almost everyone I see in jail tells me that they are in the jail due to fear of coming to court. They fear an approaching police offi cer at the door ready to arrest them because they either do not have the money to pay a fi ne or they failed to appear on a charge. I do see defendants in jail for other charges but a very large percentage are defendants who just failed to come to court.” Failing to go to court and take care of a case results in the culmination of that very fear. Some municipal courts, therefore, have a no-arrest or “safe harbor” policy for defendants who come to the court with active warrants. Such a policy is good for defendants, courts, and cities. Judge Spillane says a policy allowing a defendant to not be arrested at the misdemeanor court issuing the warrant would solve numerous problems. “One, it would help free our jails of defendants who owe fi nes for misdemeanor cases. Two, it would encourage defendants to come to court and take advantage of what the court provides: a chance to make a plea, have a trial, receive community service if indigent, or even a waiver of the fi nes and fees should community service be an undue hardship. Three, it would make it clear that jail is not the fi rst punishment for fi ne-only cases.” Note that the amnesty described here is only for Class C misdemeanors, not any other level of crimes. A defendant in municipal court who also has active warrants in other courts would not fall under this “safe harbor.” Walk-In Dockets Another reason why defendants do not come to court is scheduling confl icts. Some municipal courts in Texas make the judge available during specifi ed hours (a walk-in docket) for any defendant with a pending case to appear without prior scheduling. The judge can hold uncontested hearings (like indigence or show-cause), dispose of uncontested cases, set cases for contested hearings, recall warrants, and hear uncontested motions to modify, for example, payment plans and extensions to pay. The Austin Municipal Court has a walk-in court Monday through Thursday from 8:30 a.m. – 11:00 a.m. and 1:30 p.m. – 4:00 p.m. This has been the practice in that court for 20 years. Presiding Judge Sherry Statman says they hope to start an evening walk-in docket and possibly hold walk-in court at other locations. One goal of this special docket is “to work with defendants to help them avoid situations where they might be at risk for arrest,” says Judge Statman. At this docket, defendants can see a judge to request payment plans and those who are indigent may request community service. Defendants can also request extensions on community service or payment plans, request that jail credit be applied to their cases, hand in late paperwork, show hardship or other inability to complete community service, and bring other issues before the court. “Recognizing the diversity of our City, Spanish translators are available in person at this docket and other language interpreters can be contacted via phone,” says Judge Statman. A court considering use of a walk-in docket should also consider instituting the above mentioned no-arrest policy at the courthouse for defendants with active warrants. Defendants who voluntarily come in to the Austin Municipal Court, for example, will not be arrested. This is important in order to avoid the appearance that the docket is used as bait to lure in recalcitrant defendants. Hardship Dockets Judge Statman has created a new docket that may be unique to any Texas court. “If a defendant is in custody at the central booking facility, facing possible commitment for failure to complete previously assigned community service, and indicates in the commitment proceeding that his or her failure was due to a hardship, a judge may

Page 26 SPECIAL EDITION The Recorder immediately release that defendant to appear at a weekly hardship docket. At this docket, defendants may provide any documentation they might have and discuss their situation so that a judge can determine if waiving part or all of the fees and fi nes is appropriate per Article 45.0491 of the Texas Code of Criminal Procedure,” says Judge Statman. Considerations and caution are of course important if implementing any of these procedures. Best practices must always operate within the confi nes of the law. Warrant Amnesty Periods In addition to special dockets, another potential solution is “warrant amnesties,” conducted by the College Station Municipal Court, along with other courts. For example, during the amnesty period, Judge Spillane waives the $50 warrant fee for any defendant who comes to court to take care of his or her case. Judge Spillane says, “I’m always amazed how many defendants come to court just hearing the word ‘amnesty.’ We often clear 500 cases each amnesty period,” says Judge Spillane, “Every judge signing a warrant really wants defendants to come to court and take advantage of what our criminal justice system should provide, a chance to have your case heard by a judge or jury and a fair and effi cient opportunity to close that case.” “Why not encourage defendants to come to court and not be in jail by having a practice that coming to court removes any pending warrant out of that court for misdemeanor charges on fi ne-only cases?,” says Judge Spillane. “Defendants in fi ne-only cases are under warrant primarily for failing to come to court and/or not paying a fi ne. In both cases, rewarding defendants who come to court by taking them out of warrant is a winning solution for the court and for the defendant. Society and law and order always benefi t from defendants coming to court and not being in jail. The fi ne can only be disbursed through a payment plan or alternative means like community service when the defendant comes to court and arranges such a plan. ” “No matter how many wonderful programs we have at court as alternatives to fi nes and fees for indigent defendants, we cannot offer them should defendants avoid coming to court out of fear of an active warrant. Jail does not solve these problems.”

Does Your Court Have a Solution to Share? TMCEC is collecting information about how courts are improving accessibility, transparency, trust, and compliance to meet the needs and expectations of all who come in contact with municipal courts. Please share your solutions by emailing tmcec@tmcec. com. Also, below you can ﬁ ll out a survey on “safe harbor,” walk-in dockets, and hardship dockets. This information will be available on the TMCEC website so that other judges and court personnel can set up an opportunity to visit your court to see how you have set up these options. Click here to complete the survey [https://goo.gl/forms/ZephDmrujGxCqaEJ2].

1. Canon 2(A), Code of Judicial Conduct (A judge… should act an attorney for the state to be present. In addition to the at all times in a manner that promotes public confi dence in judge, courts need to factor in the costs of scheduling a the integrity and impartiality of the judiciary.). clerk, prosecutor, and bailiff at the walk-in docket. For cities 2. All prosecutions in municipal court must be conducted by without in-house prosecutors, this could entail a review of the city attorney or by a deputy city attorney. Article 45.201, any agreements with attorneys. Courts should also be aware Code of Criminal Procedure. Not having a prosecuting of related staffi ng issues such as overtime and other potential attorney present will limit the kinds of hearings which may human resources issues for court personnel. Judges and be held. Dismissals (other than compliance dismissals (See, clerks at such dockets must take care that no plea is taken TMCEC Compliance Dismissal chart: http://www.tmcec. from a person who was a juvenile at the time the offense com/fi les/7814/3939/6436/Compliance_Dismissals.pdf.)) was alleged, unless that person’s parent is present. Article would require the prosecution to move for dismissal. Article 45.0215, Code of Criminal Procedure. A judge should 32.02, Code of Criminal Procedure. A judge should not hear exercise caution, and verify that any underage defendant is any evidence or testimony, sworn or otherwise, in a case that accompanied by either a parent or a legal guardian, or that has not been adjudicated. Canon 6(C)(2), Code of Judicial the case be reset to give notice. Conduct. Sentencing hearings may be ex parte (TMCEC Bench Book, Sentencing, page 189 (2015)), but trials require

Page 27 SPECIAL EDITION The Recorder In Light of Tate : What “Alternative Means” Means It does not mean waiver of fi nes and costs. There are, currently, three alternative means defi ned under Texas law: installment payments, community service, and tutoring. Although judges have broad discretion within these statutes, no other alternative means are currently defi ned by the Legislature. In Tate v. Short, the U.S. Supreme Court suggested that other alternatives to immediate cash payments exist and may be specifi ed by legislative enactment or judicial authority.1 In Bearden v. Georgia, the court ruled that if a defendant willingly refuses to comply with these alternative measures, the court is justifi ed in using imprisonment to enforce collection.2 This line of cases spurred legislation requiring the use of acceptable alternative means. But, what are “acceptable alternative means?” Because the answer is based upon legislative enactment and judicial authority, it will differ from state to state. Texas has defi ned alternative means as installment payments,3 community service,4 and, for children, tutoring in lieu of community service.5 These statutes give judges discretion in the application of the alternative means defi ned, but do not explicitly allow other alternative means of payment. Installment Payments Installment payments are a type of “alternative means” explicitly 6 contemplated in Tate v. Short. Under current Texas law, if any amount Texas has defi ned of fi ne or costs assessed for a misdemeanor are not paid within 30 days, alternative means as the defendant is assessed a time payment fee of $25 on the 31st day.7 The amount assessed may be ordered paid immediately, at “some later date,” installment payments, or in installments in designated intervals.8 Under this statute, judges have community service, and, broad latitude in the amount of time a defendant may be allowed for for children, tutoring payment of a fi ne, and in the amount and frequency of payment plans given, in lieu of community although the assessment of the one-time $25 fee is mandatory if any amount service. These statutes is paid after the 31st day after the date that judgment is entered.9 give judges discretion in the application of Community Service the alternative means Converting fi nes to community service is explicitly provided for under defi ned, but do not Texas law. Article 45.049 of the Code of Criminal Procedure allows the explicitly allow other court to require a defendant who fails to pay as previously ordered, or alternative means of who the court determines is unable to pay, to discharge the fi ne and costs payment. assessed in the form of community service.10 The judge has broad latitude as to the number of hours of community service which will be required, as long as not less than $50 is discharged for each eight hours of community service performed.11 A defendant may discharge an obligation to perform community service under Article 45.049 by paying at any time the fi ne and costs assessed.12 The statute requires the judge to order the defendant to perform community service work “only for a governmental entity or a nonprofi t organization that provides services to the general public that enhance social welfare and the general well-being of the community.”13 Although some advocates for change call for substitution of mentoring, job training, or other means to benefi t the defendant and society in place of community service work, the current wording of the statute seems to preclude such an expansion of the system. Such an expansion would require legislative action, either to expand Article 45.049, or to authorize such a program separately. Tutoring Article 45.0492 is an example of legislative expansion of the concept of “community service.” Under this article, the court may require juveniles assessed fi nes or costs for certain offenses either to perform community service, or to “[attend] a tutoring program that is satisfactory to the court.”14 This applies only to Class C misdemeanors committed by juveniles in buildings or on the grounds of primary or secondary schools, at which the juvenile is enrolled.

Page 28 SPECIAL EDITION The Recorder Waiving Fines and Costs Judges may not waive fi nes and costs as an alternative means of payment.15 Only after a defendant has defaulted in payment, if the judge determines that the defendant is either indigent or a child, and that community service would impose an undue hardship, may the judge waive payment of a fi ne or costs imposed.16 Policy Considerations Currently, under Texas law, alternative means consists of installment payments, community service, and for children, tutoring in lieu of By conceptualizing a community service. Within the bounds of the Code of Judicial Conduct, broader meaning of judges could be given more leeway as to what else might constitute “community service,” “alternative means.” By conceptualizing a broader meaning of “community the Legislature could service,” the Legislature could authorize mentoring, job training, and authorize mentoring, other means that benefi t the defendant and society. Depending on where job training, and other a defendant resides in Texas, community service opportunities may vary means that benefi t the greatly. More can be done to help local courts and defendants identify defendant and society. and access community service opportunities. In the age of the internet, technology is the key and state government is in the best position to establish and operate a statewide community service opportunity bank. From a policy standpoint, “alternative means” does not mean eliminating punitive consequences for criminal behavior on the basis of socioeconomics. Part of the Tate decision is regularly overlooked: “The State is not powerless to enforce judgments against those fi nancially unable to pay a fi ne; indeed, a different result would amount to inverse discrimination since it would enable an indigent to avoid both the fi ne and imprisonment for nonpayment whereas other defendants must always suffer one or the other conviction.”17 Citing Williams v. Illinois (1970),18 the U.S. Supreme Court, in qualifying its mandate that alternative means be provided to indigent defendants, acknowledged the existence of a valid state interest in enforcing payment of fi nes. The Court also emphasized that its holding did not suggest any constitutional infi rmity in imprisonment of a defendant with the means to pay a fi ne who refuses or neglects to do so. Nor was the Tate decision to be understood “as precluding imprisonment as an enforcement method when alternative means are unsuccessful despite the defendant’s reasonable efforts to satisfy the fi nes by those means.”19 In reiterating the holdings of Williams and Tate, the Court, in Bearden v. Georgia, also “recognized limits on the principle of protecting indigents in the criminal justice system.”20 Under Bearden, “alternative means” are “alternative punishments.”21 In the context of court-ordered fi nes and court costs, alternative means can entail either a non-monetary substitute or, as the Court stated in Tate, “a procedure for paying fi nes in installments.”22 Alternative means do not, however, mean preventing the lawful incarceration of indigent defendants.

1. Tate v. Short, 401 U.S. 395, 399-401 (1971). 17. Tate, 401 U.S. at 399 (1971). 2. Bearden v. Georgia, 461 U.S. 660, 668 (1983). 18. Williams v. Illinois, 399 U.S. 235, 244 (1970). 3. Article 45.041, Code of Criminal Procedure. 19. Tate, 401 U.S. at 400-01 (1971). 4. Article 45.049, Code of Criminal Procedure. 20. Bearden, 461 U.S. at 664-65 (1983). 5. Article 45.0492, Code of Criminal Procedure. 21. Bearden, 461 U.S. at 674. 6. Tate, 401 U.S. at 400 n. 5. 22. Tate, 401 U.S. at 671 n. 5. It is also important to note that 7. Section 133.103, Local Government Code. “[t]he State is free to choose from among the variety of 8. Article 45.041(b), Code of Criminal Procedure. solutions already proposed and, of course, it may devise new 9. Section 133.103, Local Government Code. ones.” Id. at 671. 10. Article 45.049(a), Code of Criminal Procedure. 11. Article 45.049(e), Code of Criminal Procedure. 12. Article 45.049(a), Code of Criminal Procedure. 13. Article 45.049(c), Code of Criminal Procedure. 14. Article 45.0492(b), Code of Criminal Procedure. 15. Article 45.0491, Code of Criminal Procedure. 16. Id.

Page 29 SPECIAL EDITION The Recorder Setting the Record Straight: Class C Misdemeanors, the Right to Counsel, and Commitment to Jail

Neither federal case law nor the DOJ “Dear Colleague” Letter supports the argument that the U.S. Constitution forbids commitment of indigent persons in the absence of appointed counsel.

A defendant accused of a Class C misdemeanor, like any other defendant accused of a criminal matter in Texas, has the right to be represented by counsel in an adversarial judicial proceeding.1 In Texas, the constitutional right to counsel is implemented through the Code of Criminal Procedure (primarily Articles 1.051 and 26.04). The right to be represented by counsel includes the right to consult with counsel in private, sufﬁ ciently in advance of a proceeding to allow adequate preparation for the proceeding.2 This right to representation, however, does not necessarily entitle a defendant to court-appointed counsel.

Class C Misdemeanors are Generally Excluded from Texas Appointment of Counsel Statutes For purposes of Articles 1.051, 26.04, and 26.05 of the Code of Criminal Procedure, “indigent” means a person who is not fi nancially able to employ counsel.3 However, such indigent defendants are generally only entitled to a court-appointed attorney in an adversarial judicial proceeding that may This means that a result in punishment by confi nement.4 This excludes Class C misdemeanors defendant accused of a in which the sentence is limited to the payment of the fi ne and costs to the 5 Class C misdemeanor state. This means that a defendant accused of a Class C misdemeanor has has the right to be the right to be represented by counsel, but is not entitled to court-appointed counsel. Note that Article 26.04 of the Code of Criminal Procedure represented by counsel, “authorize[s] only the judges of the county courts, statutory county courts, but is not entitled to and district courts trying criminal cases” (or their designees) to appoint court-appointed counsel. counsel for indigent defendants who are arrested, charged, or appealing a conviction of misdemeanors punishable by confi nement (i.e., Class A or Class B misdemeanors) or a felony.6 Class C misdemeanor cases do not warrant the appointment of counsel under either federal or Texas case law. The U.S. Supreme Court, in Scott v. Illinois, drew a bright line between incarceration (as part of a sentence) and the mere threat of incarceration (separate from a sentence), holding that the 6th and 14th Amendments require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State had afforded him the right to appointed counsel.7 Citing Scott v. Illinois, Texas appellate courts have been consistent and clear: When the sentence in a criminal case consists only of monetary punishment, be it a Class C misdemeanor,8 or even a misdemeanor punishable by confi nement, a defendant is not entitled under the U.S. Constitution or Texas law to court-appointed counsel.9 The Court of Criminal Appeals has similarly held “that when only a fi ne is actually assessed in a misdemeanor case, the judgment is not void even though the defendant was indigent, was not represented by counsel, and was convicted under a statute which included imprisonment as a possible punishment.” When the sentence in a Statutory Exception: Interest of Justice Appointments criminal case consists only of monetary Texas law, however, does not absolutely preclude appointments of counsel punishment, be it a in Class C misdemeanor cases and provides that any court may appoint 8 11 Class C misdemeanor, counsel if it concludes “the interest of justice” requires representation. or even a misdemeanor The law is silent regarding the procedure or funding for such appointments punishable by and what “the interest of justice” means. A defendant’s indigent status does not appear to be determinative. Texas legal scholars have opined that confi nement, a interest of justice appointments should be determined largely on the basis of defendant is not whether the case presents defensive possibilities that only an attorney could entitled under the adequately present to the court.12 While the Court of Criminal Appeals has U.S. Constitution not addressed interest of justice appointments in the context of Class C or Texas law to misdemeanors, federal case law suggests that “special circumstances” in court-appointed counsel.

Page 30 SPECIAL EDITION The Recorder which failure to appoint counsel results in a trial lacking “fundamental fairness” violate due process and could trigger such an appointment.13

Waiver of Right to Counsel Requirements are Inapplicable to Class C Misdemeanors The right to counsel in Class C misdemeanor cases also operates differently than in cases involving sentences of incarceration regarding waiver of the right to counsel. Article 1.051(f) of the Code of Criminal Procedure permits the right to counsel to be waived “voluntarily and intelligently” in writing. That subsection goes on to say that a waiver is invalid if obtained in violation of subsections (f-1) or (f-2), which only apply to adversary judicial proceedings that may result in punishment by confi nement. Case law is instructive as to whether Article 1.051(f) mandates such a waiver in Class C misdemeanor cases. The language of Article 1.051 comes from the U.S. Supreme Court case, Argersinger v. Hamlin, which held that “absent a knowing and intelligent waiver, no person may be imprisoned for any offense . . . unless he was represented by counsel at his trial.”14 The Court was clear, however, that its holding was limited to misdemeanors where defendants were sentenced to a term of incarceration.15 Under Argersinger, in misdemeanors “that end up in the actual deprivation of a person’s liberty, the accused will receive the benefi t of ‘the guiding hand of counsel’ so necessary when one’s liberty is in jeopardy.”16 More recent Supreme Court case law states that “only trials that end up in the actual deprivation of a person’s liberty require that the accused receive ‘the guiding hand of counsel.’ A court that ends up fi ning a defendant has not placed that liberty in jeopardy.”17 Of course, though not required, nothing precludes a judge from ascertaining whether a defendant has intelligently and knowingly waived the right to counsel or from making sure a defendant understands the right to counsel and the disadvantage of proceeding pro se.

Court-Appointed Counsel in the Context of Commitment to Jail for a Class C Misdemeanor In Texas, some advocates for indigent defendants contend that case law and the DOJ’s “Dear Colleague” letter make it clear that the U.S. Constitution forbids commitment of indigent persons to jail in the absence of the appointment of counsel. The opposite is true. The DOJ letter states that “Courts must provide meaningful notice and, in appropriate cases, counsel when enforcing ﬁ nes and fees.”18 As previously explained, however, case law makes it clear that Class C misdemeanors are not appropriate cases. Commitment to jail for either willful nonpayment or failure to discharge through alternative means is not the same as a jail sentence and does not trigger the right to court-appointed counsel. Contentions to the contrary misrepresent federal case law. Such arguments also contradict civil libertarians who have long criticized Texas for not expanding the right to counsel for indigents charged with ﬁ ne-only misdemeanors, but who, nonetheless, acknowledge that Texas law meets the requirement of the U.S. Constitution as set forth in Scott v. Illinois.19

1. Article 1.051(a), Code of Criminal Procedure. Thompson Reuters/West 2011). 2. Article 1.051(a), Code of Criminal Procedure. 13. Ryan Kellus Turner, “The Oversimplifi cation of the 3. Article 1.051(b), Code of Criminal Procedure. This Assistance of Counsel in the Adjudication of Class C defi nition only applies to the specifi cally mentioned statutory Misdemeanors,” The Recorder (January 2009). provisions and is defi ned nowhere else. See, Defi ning 14. Argersinger v. Hamlin, 407 U.S. 25, 37 (1972). The Court Indigence on page 17 of this issue of The Recorder. reversed the Florida Supreme Court which had relied on the 4. Article 1.051(c), Code of Criminal Procedure. The only U.S. Court for the Southern District of Florida practice of exceptions are interest of justice appointments (discussed appointing counsel only where imprisonment for the offense below). was greater than six months. 5. Article 45.041(a), Code of Criminal Procedure. 15. Id. at 40. 6. Article 26.04, Code of Criminal Procedure. Emphasis added. 16. Id. 7. Scott v. Illinois, 440 U.S. 367 (1979). 17. United States v. Jennings, 323 F.3d 263, 276 n. 5 (4th Cir. 8. Bush v. State, 80 S.W.3d 199, 199 (Tex. App.—Waco 2002, 2003), citing Alabama v. Shelton, 535 U.S. 654, 658 (2002), no pet.). quoting Argersinger at 40. 9. Fortner v. State, 764 S.W.2d 934, 934-35 (Tex. App.—Fort 18. DOJ Dear Colleague Letter of March 14, 2016 (emphasis Worth 1989, no pet.). added), available at https://www.justice.gov/crt/fi le/832461/ 10. Empy v. State, 571 S.W.2d 526, 528 (Tex. Crim. App. 1978). download. Capitalization of “Only” in original text for emphasis. In 19. See, B. Mitchell Simpson, A Fair Trial: Are Indigents 1987, the Legislature amended Article 26.04. It retained Charged with Misdemeanors Entitled to Court Appointed the phrase “punishable by imprisonment,” but clarifi ed Counsel? 5 Roger Williams U. L. Rev. 417, 434, n. 127 that the right to court appointed counsel was guaranteed to (2000). The author, in offering a critique of Scott v. Illinois, defendants accused of Class A and Class B misdemeanors 440 U.S. 367 (1979), explains that Texas is among the states regardless of the punishment imposed in their cases. that have not expanded the right to counsel for indigents 11. Article 1.051(c), Code of Criminal Procedure. charged with misdemeanors beyond what is required by 12. George B. Dix and John M. Schmolesky, 42 Criminal the U.S. Constitution in the standards announced in Scott. Practice and Procedure, Sec. 29.32 (Texas Practice 3d ed. Simpson at 433-434. Page 31 SPECIAL EDITION The Recorder TEXAS MUNICIPAL COURTS Presorted Standard EDUCATION CENTER U.S. Postage 2210 Hancock Drive PAID AUSTIN, TX 78756 Austin, Texas www.tmcec.com Permit No. 114 Change Service Requested

TMCEC MISSION STATEMENT

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

ABOUT TMCEC

Th e Texas Municipal Courts Education Center (TMCEC) was formed in 1984 by the Texas Municipal Courts Association (TMCA) to provide extensive, continuing professional education and training programs for municipal judges and court personnel. TMCEC is fi nanced by a grant from the Court of Criminal Appeals out of funds appropriated by the Legislature to the Judicial and Court Personnel Training Fund.

In 2006, TMCEC was incorporated as 501(c)(3) non-profi t corporation exclusively for charitable, literary, and educational purposes of providing: (1) judicial education, technical assistance, and the necessary resource material to assist municipal judges, court support personnel, and city attorneys in obtaining and maintaining professional competence in the fair and impartial administration of criminal justice; and (2) information to the public about the Texas judicial system and laws relating to public safety and quality of life in Texas communities.

TMCEC conducts courses in various locations throughout the state to facilitate compliance by municipal judges with the Court of Criminal Appeals’ order mandating continuing education on an annual basis. Courses are off ered for judges, clerks, court administrators, bailiff s, warrant offi cers, juvenile case managers, and prosecutors. At this time, annual attendance at judicial education programs is not mandatory for court clerks, but is highly recommended.

Sponsoring more than 40 events annually, and providing professional and law-related education to more than 5,000 people, TMCEC is one of the largest organizations of its kind in the United States of America. TMCEC has an outstanding cadre of faculty members that consists of judges, attorneys, and other professionals from throughout the nation. TMCEC takes pride in the quality and content of its conferences and work product. It has earned the praise of judges, attorneys, policy makers, and court professionals throughout the Lone Star State. Page 32 SPECIAL EDITION The Recorder