Texas Procedural Safeguards
FUNDED BY A GRANT FROM THE TEXAS COURT OF CRIMINAL APPEALS
TEXAS MUNICIPAL COURTS EDUCATION CENTER
2210 HANCOCK DRIVE, AUSTIN, TEXAS 78756 TELEPHONE 512.320.8274 1.800.252.3718 FAX 512.435.6118
Texas Procedural Safeguards
Presented by
Katie Chancia, Associate Judge, City of Jersey Village Arguably, the most important constitutional protection in criminal law is the right to due process. Following the investigation into practices in Ferguson, Missouri and the 2016 U.S. Department of Justice's "Dear Colleague" letter regarding the assessment and enforcement of fines and fees in local courts, critical reviews of Texas practices led to significant reform regarding fines and fees. The Department stated that due process is violated when adequate alternative procedural safeguards are not provided to prevent incarceration for inability to pay. This session will discuss those "procedural safeguards" under Texas law pertaining to the impositions of judgments and fines, issuance of custodial writs for nonappearance and nonpayment, indigency issues, and commitment to jail.
By the end of the session, participants will be able to: 1. Define "procedural safeguard;" 2. List the required notices provided to defendants regarding alternatives to pay and consequences of non- appearance and/or non-payment; 3. Describe existing alternatives to full payment of fines and costs, and when each is appropriate; and 4. Explain the procedural steps required in the issuance of custodial writs for non-appearance and/or non- payment.
TMCEC IS A PROJECT OF THE TEXAS MUNICIPAL COURTS ASSOCIATION 2019 Fines and Fees Exposition and Showcase Texas Procedural Safeguards
What do we mean?
Procedural safeguards are legal requirements that protect the RIGHTS of defendants constitutional or statutory OR COURTESY?
Fear as a MOTIVATOR
1 What is #1 thing people are afraid of?
“ . . . to the average person, if you have to go to a funeral, you’re better off in the casket than doing the eulogy.” ‐ Jerry Seinfeld
glossophobia
29% agree that Texas courts 66% disapprove of jailing a 74% believe 67% disagree the average Texas Courts Public Trust & defendant who owes court fines treat people alike regardless of person can afford court or fees when the defendant socio‐economic statuscitizen’s rights Confidence Study (July 2018) costs and filing feescannot afford them From SB 1913: are protected . . . lack of knowledge about Summaries of Texas the criminal justice CourTools Measures (July‐ system, and August 2017) apprehension about dealing with the court system
Incarcerophobia – fear of Xenophobia – fear of the unknown going to jail of anything that is beyond one’s comfort zone
FOUR CLUSTERS: • Required Notice • Required Hearings • Other Protections • Alternatives to Full Payment
Objective of Chapter 45: to provide fair notice to a person appearing in a criminal proceeding before a justice or municipal court and a meaningful opportunity for that person to be heard
2 • Domestic violence convictions and impact on handgun possession • Failure to maintain financial responsibility REQUIRED convictions and impact on driver’s license status NOTICE • Scofflaw and Omnibase notices • Potential surcharge notice
Warnings about collateral consequences to be included on citations
The judgment and sentence for the offense with which you are charged is the payment of a fine and cost. If ordered to pay a fine and cost, and you cannot pay, notify the court immediately. If you are determined by the court to have insufficient resources or income to pay, the court is required to provide you other ways to discharge the fine and costs.
Language about alternatives to full payment to be included on citation
• Right to driver’s safety course included on citation • Amount of fine and costs and REQUIRED alternatives to full payment (and appeal bond) in notice NOTICE from court upon receipt of plea and waiver by mail • Sworn complaint filed upon failure to appear or plea of not guilty
3 READ THE FINE
“You lose. You get nothing.”
the different “Show Cause” hearings: • Before issuance of arrest REQUIRED warrant • Before entering of conviction HEARINGS following deferred/DSC • Before issuance of a capias pro fine
Judge MAY NOT issue an arrest warrant for the defendant’s failure to appear at the initial court setting, unless the judge provides notice: • By phone or regular mail • With new date and time and place to appear (defendant may request an alternative date) • Giving information regarding alternatives to full payment if unable to pay • Explaining consequences if defendant fails to appear • And defendant does fail to appear
4 Judge MAY NOT issue an arrest warrant for the defendant’s failure to appear at the initial court setting, unless . . .
If defendant fails to present satisfactory evidence of compliance with a DSC/deferred, the court shall notify the defendant . . .
Court MAY NOT issue a capias pro fine for the defendant’s failure to satisfy the judgment, unless . . .
Before Order of Commitment:
Judge MAY (only) order the defendant confined in jail until discharge by law if the judge at a hearing makes a written REQUIRED determination that defendant is not HEARINGS indigent and has failed to make good faith effort or defendant is indigent and has failed to make good faith effort to do community service when it would not impose an undue hardship
Safe Harbor Provisions:
Mandatory recall of arrest warrants if defendant voluntarily appears and makes a good faith effort to resolve the case
Mandatory recall of capias pro fine if defendant voluntarily appears and the amount is resolved
5 “But…”
Zip it.
“And…”
Zip it good.
• Nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws • No warrants shall issue but upon probable cause • The accused shall enjoy the right to a speedy and public trial by an impartial jury . . . and to be informed of the nature and cause of the accusation • Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted • All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt
• Presumption of innocence and beyond a reasonable doubt burden of proof • Probable cause determinations • Directed verdicts OTHER • Right to a jury trial PROTECTIONS • Right to a new trial on jailhouse pleas • No default judgments • No imposition of costs without statutory authority • Right to appeal cannot be waived*
6 During or immediately after imposing a sentence in a case in which defendant entered a plea ALTERNATIVES TO in open court, the judge SHALL FULL PAYMENT inquire whether the defendant has sufficient resources or income to immediately pay all or part of the fine and costs.
Judge shall determine whether the fine and costs should be:
• Required to be paid at some later date or in a specified portion at designated intervals and/or
• Discharged by performing community service and/or
• Waived in full or in part
• After applying jail credit
Judge shall determine whether the fine and costs should be:
• Required to be paid at some later date or in a specified portion at designated intervals
Previously must allow a payment plan if unable to pay
Subject to collection improvement program
7 Judge shall determine whether the fine and costs should be:
• Discharged by performing community service (minimum $100 / 8 hours)
Previously could be for governmental entity or nonprofit organization that provides services to the general public that enhance social welfare and the general well‐being of the community
Now can also be for educational institution or attending programs (work/job skills training, GED prep, alcohol/drug abuse program, rehabilitation program, counseling/self‐improvement program, mentoring program, tutoring)
Judge shall determine whether the fine and costs should be:
• Waived in full or in part
Court MAY waive payment of all or part of a fine or costs imposed if the court determines that the defendant is indigent or does not have sufficient resources or income to pay all or part of the fine or costs (or was a child at time of offense) AND discharging the fine or costs through community service would be an undue hardship
Note on applying jail credit
Mandatory vs. discretionary (minimum $100 / 24 hours)
8 NOTICE OPPORTUNITY TO CONSTITUTIONAL ALTERNATIVES TO BE HEARD AND STATUTORY FULL IMMEDIATE RIGHTS PAYMENT TEXAS PROCEDURAL SAFEGUARDS Fines and Fees Exposition and Showcase
9 Texas Procedural Safeguards
Procedural safeguards are legal requirements that protect the RIGHTS of defendants.
Constitutional Statutory
Fear as a motivator Xenophobia – fear of the ______ Incarcerophobia – fear of going to ______
Concept 1: NOTICE
1. Warnings about collateral consequences to be included on citations
a. Domestic violence convictions and impact on handgun possession (Art 14.06, CCP)
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.
b. Failure to maintain financial responsibility convictions and impact on driver’s license status (Sec 601.233, TC)
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. Scofflaw and Omnibase notices (702.004, TC & 706.003, TC) d. Potential surcharge notice (708.105, TC)
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.
2. Language about alternatives to full payment to be included on citations (Art 14.06, CCP)
Example: The judgment and sentence for the offense you are charged is the payment of a fine and cost. If ordered to pay a fine and cost, and you cannot pay, notify the court immediately. If you are determined by the court to have insufficient resources or income to pay, the court is required to provide you other ways to discharge the fine and costs.
Example: In the event you are convicted and are unable to pay the full amount of any fine or costs assessed, tell the Court immediately. The judge can provide you with alternatives to full payment if you are determined to have insufficient resources or income. For more information, consult an attorney or visit ______. 3. Notice regarding right to a driver’s safety course to be included on citations (Art 45.0511, CCP)
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.
4. Court to send notice upon defendant’s plea and waiver of trial by mail (Art 27.14, CCP) 5. Sworn complaint must be filed if defendant fails to appear or pleads not guilty (Arts 27.14 & 45.018, CCP)
Concept 2: REQUIRED HEARINGS
1. Before issuance of arrest warrant – Art 45.014(e), CCP
A justice or judge may not issue an arrest warrant for the defendant's failure to appear at the initial court setting, including failure to appear as required by a citation issued under Article 14.06(b), unless: (1) the justice or judge provides by telephone or regular mail to the defendant notice that includes: (A) a date and time, occurring within the 30-day period following the date that notice is provided, when the defendant must appear before the justice or judge; (B) the name and address of the court with jurisdiction in the case; (C) information regarding alternatives to the full payment of any fine or costs owed by the defendant, if the defendant is unable to pay that amount; and (D) an explanation of the consequences if the defendant fails to appear before the justice or judge as required by this article; and (2) the defendant fails to appear before the justice or judge as required by this article.
2. Before entering of conviction following deferred disposition/DSC – Arts 45.051(c-1), 45.0511(i), CCP
If the defendant fails to present within the deferral period satisfactory evidence of compliance with the requirements imposed by the judge under this article (or if a defendant requesting a course under this article fails to comply with Subsection (c)), the court shall: (1) notify the defendant in writing, mailed to the address on file with the court or appearing on the notice to appear, of that failure; and (2) require the defendant to appear at the time and place stated in the notice to show cause why the order of deferral should not be revoked.
3. Before issuance of capias pro fine – Art 45.045(a-2), CCP
The court may not issue a capias pro fine for the defendant's failure to satisfy the judgment according to its terms unless the court holds a hearing on the defendant's ability to satisfy the judgment and: (1) the defendant fails to appear at the hearing; or (2) based on evidence presented at the hearing, the court determines that the capias pro fine should be issued.
4. Before order of commitment – Art 45.046(a), CCP
When a judgment and sentence have been entered against a defendant and the defendant defaults in the discharge of the judgment, the judge may order the defendant confined in jail until discharged by law if the judge at a hearing makes a written determination that: (1) the defendant is not indigent and has failed to make a good faith effort to discharge the fine or costs; or (2) the defendant is indigent and: (A) has failed to make a good faith effort to discharge the fine or costs under Article 45.049; and (B) could have discharged the fine or costs under Article 45.049 without experiencing any undue hardship.
5. Safe harbor provisions – required recall of arrest warrants and capias pro fines when defendant appears and makes good faith effort to resolve – Arts 45.014 & 45.045, CCP
Concept 3: OTHER PROTECTIONS
1. Presumption of innocence and beyond a reasonable doubt burden (Sec 2.01, PC)
All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.
a. Probable cause determinations 1. Within 24 hours for warrantless arrests - Art 17.033, CCP 2. Before issuance of any warrant - Art 1.06, CCP b. Directed verdicts - 45.032, CCP
2. Right to jury trial a. Right to new trial on “jailhouse pleas” – Art 45. 023, CCP b. No default judgments in criminal cases
3. Imposition of costs prohibited without statutory authority – Art 103.002, CCP
4. Right to appeal cannot be waived as it can be in higher offenses – Arts 44.02 & 44.17, CCP
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PROBABLE CAUSE - 4th Amendment: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. (See also Art I, Sec 9, Texas Constitution; Art 1.06, CCP)
DUE PROCESS - 14th Amendment, Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (See also Art I, Sec 19, Texas Constitution; Art 1.10, CCP)
TRIAL BY JURY AND ASSISTANCE OF COUNSEL - 6th Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense. (See also Art I, Secs 10 & 15, Texas Constitution; Arts 1.05 & 1.12, CCP)
EXCESSIVE FINES - 8th Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. (See also Art 1, Se. 13, Texas Constitution; Art 1.09, CCP)
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Concept 4: ALTERNATIVES TO FULL PAYMENT
1. Court requirement to consider defendant’s ability to pay - Art 45.041(a-1), CCP
Notwithstanding any other provision of this article, during or immediately after imposing a sentence in a case in which the defendant entered a plea in open court as provided by Article 27.14(a) or 27.16(a), the justice or judge shall inquire whether the defendant has sufficient resources or income to immediately pay all or part of the fine and costs. If the justice or judge determines that the defendant does not have sufficient resources or income to immediately pay all or part of the fine and costs, the justice or judge shall determine whether the fine and costs should be: (1) subject to Subsection (b-2), required to be paid at some later date or in a specified portion at designated intervals; (2) discharged by performing community service under, as applicable, Article 45.049 or 45.0492; (3) waived in full or in part under Article 45.0491; or (4) satisfied through any combination of methods under Subdivisions (1)-(3).
2. What are the alternatives?
a. Mandatory vs discretionary jail credit – Arts 45.041, 42.03 & 45.048, CCP
A convicting court may specify a period that is not less than eight hours or more than 24 hours as the period for which a defendant who fails to pay the fine and costs in the case must remain in jail to satisfy $100 of the fine and costs.
b. Deferred payment - Art 45.041, CCP c. Installment payments - Art 45.041, CCP d. Reimaging community service - Art 45.049, CCP
The justice or judge may order the defendant to perform community service under this article: (1) by attending a work and job skills training program, a preparatory class for the high school equivalency examination administered under Section 7.111, Education Code, or similar activity (i.e. an alcohol or drug abuse program, a rehabilitation program, a counseling program including a self-improvement program, or a mentoring program); or (2) for: (A) a governmental entity; (B) a nonprofit organization or another organization that provides services to the general public that enhance social welfare and the general well-being of the community, as determined by the justice or judge; or (C) an educational institution.
A defendant is considered to have discharged not less than $100 of fines or costs for each eight hours of community service performed under this article.
e. Waiver - Art 45.0491, CCP
A municipal court, regardless of whether the court is a court of record, or a justice court may waive payment of all or part of a fine or costs imposed on a defendant if the court determines that: (1) the defendant is indigent or does not have sufficient resources or income to pay all or part of the fine or costs or was, at the time the offense was committed, a child as defined by Article 45.058(h); and (2) discharging the fine or costs under Article 45.049 or as otherwise authorized by this chapter would impose an undue hardship on the defendant.