The Texas Criminal and Civil Justice System

This section focuses specifically on the criminal justice system in the state of

Texas and the United States as a whole.

This takes us through several steps in the governing process. The entire criminal justice system involves all

three branches of government.

What is Criminal Justice?

Wikipedia: Criminal Justice Sourcebook of CJ Statistics

National CJ Reference ServiceWhat is Criminal Justice?

Criminal justice is the application or study of laws regarding criminal

behavior.

For various stories on the topic click here:

Salon.com: Crime

Criminal law falls under the reserved powers mentioned in the 10th

amendment – the police powers of the state.

The national government has used the commerce clause to justify expanding

into criminal law. Crime over state borders does have an impact on

interstate commerce.

Recall that the U.S. Constitution contains no delegated power to

deal with crimes.

Useful sites related to federal criminal law:

LII: USC: Title 18 – Crimes and Criminal ProcedureDOJ: Federal Criminal Law

Wikipedia: Federal Crime in the United StatesSyllabus Law 735: Federal Criminal Law

Discussion: Are there too many federal laws?

- As Criminal Laws Proliferate, More Are Ensnared- You're (Probably) a Federal Criminal

The national government has a criminal justice system, but the bulk of our attention will be on

that of Texas.

Activities within the scope of criminal justice:

Law creationLaw Enforcement

ProsecutionTrials

AppealsPunishment

Parole

There are two general categories of criminal law:

MisdemeanorsFelonies

“A misdemeanor is a crime punishable by less than 12 months in jail. Community

service, probation, fines, and imprisonment for less than a year are

commonly issued punishments for misdemeanors. More grievous crimes,

felonies, carry stiffer penalties, including jail time of more than 12 months.”

MISDEMEANORS

Class A up to 1 year in a county jail and/or a fine up to $4,000

Class B up to 180 days in a county jail and/or a fine up to $2,000

Class C fine not to exceed $500

A felony is a “serious crime punishable by more than a year in

prison or by death. At English common law, a felony was any

crime punishable by forfeiture of land or goods to the Crown.”

FELONIES

Capital death by lethal injection or life imprisonment

First Degree 5-99 year or life in prison; may also be fined up to $10,000

Second Degree 2-20 years in prison; may also be fined up to $10,000

Third Degree 2-10 years in prison; may also be fined up to $10,000

State Jail (Fourth Degree) 180 days to 2 years in state jail, may also be fined up to $10,000; or court may impose Class A misdemeanor punishment

While we’re at it, what is a crime exactly?

“Crime is behavior, either by act or omission, defined by statutory or

common law as deserving of punishment.”

ok . . . so what makes something deserving of punishment?

Click here for a list of criminal classifications

in Texas.

Here is a more comprehensive list.

Sources of law:

Statutes passed by the state legislature

Provisions of the Texas Constitution

Common Law

Every time the Texas Legislature meets it passes a variety of new statutes which make new things

illegal to do.

These come into effect – generally – September 1st following the end

of the session.

Here are reports about the most recent laws passed in the 82nd

session:

Criminal Law BlogKXII.com

Texas District and County Attorneys

Grits for Breakfast

Public opinion on certain things can change.

Marijuana use for example. But change in public opinion does not

necessarily lead to changes in public policy.

From 2009, a list of 2,436 total felonies – also ranked according to severity.

Grits for Breakfast comments on the exploding number of felonies in Texas.

Discussion: Do we make too many things illegal? What pressures does this place on the state? Are there other ways to address

public problems?

All Texas laws are contained in Vernon’s Texas Statutes and

Codes.

Click here for (what seems to be) a comprehensive set of links to

Texas Codes and laws.

More discussion:

What factors make some things illegal and other things not? Do

law enforcement agencies promote expanded criminal law? Does this allow additional means to control the general population.

One problematic issue: It can take awhile for people to realize that laws have changed for certain

activities.

Laws must be promulgated in order for them to be effective – there has to be

some announcement that something has been made illegal.

Laws that are passed by cities are called ordinances.

Code of Ordinances - Houston

Cities can also pass ordinances which do the same thing

Recent local example: Is giving food away a crime in Houston?

And is Houston going to change its chicken laws?

So with very few exceptions, the decision about what people can

and cannot do comes own to decisions made in the legislative

branch, and this is often as a consequence of efforts to

criminalize certain activities.

It is up to the executive branch to enforce the laws.

Investigation and prosecution.

The law enforcement system in the state is highly decentralized. While

state institutions exist – notably The Texas Department of Public Safety – these share power with 254 sheriff’s

department in each of the counties in the state, and the police departments in each of the over 1,200 incorporated

municipalities.

This doesn’t even take into consideration the fact that Texas

law enforcement exists within the larger frame of law enforcement in

the nation as a whole.

The DPS consists “of the director's staff and three major divisions:

Criminal Law Enforcement, Traffic Law Enforcement, and

Administration.”

Texas Tribune Topic: Steve McGraw

The DPS is overseen by a five person board – the Public Safety Commission - appointed by the governor and confirmed by the

Texas Senate for six year, staggered terms.

The Texas Rangers (Wikipedia, TSHA) are also a division within the

DPS. The division dates back to 1823, so it considerably older than

DPS – and Texas itself.

Texas laws are also enforced by sheriffs. The Texas Constitution

establishes that each county is to have an elected sheriff who is to

serve for four years.

“By statutes, the Sheriff is a Texas peace officer, a conservator of the

peace, enforces the criminal laws of the State, and is responsible for the county jail, bail bonds, civil process, and security of the courts. In some

small counties the Sheriff is also the tax collector.“ – S.A.T. website.

Brazoria County Sheriff’s OfficeHarris County Sheriff’s Office

Sheriff’s Association of Texas

County law enforcement is also augmented by constables. Each

county can have from one to eight and they are elected to serve in a

precinct within the county.

Brazoria County ConstablesHarris County Constables

Constitutional authorization comes from Article 5 – Section 15 of the

Texas Constitution.

Cities also have their own law enforcement mechanisms – police

forces.

Its worth noting that professional policing only began in the late

1820s. Police forces had a history of sources of patronage.

Alvin Police DepartmentHouston Police Department

Remember that the activities of the police are limited by the various elements that we know collectively as the “due process

of the law.”

Parts of the U.S. and Texas Bills of Rights are intended to limit the discretionary

activities of the police. Actions are not to be motivated by racial or ethic bias, but by

probably cause.

Important parts of each Constitution: U.S. Constitution 4th Amendment, which is applied to

state and local forces through the 14th Amendment; Texas Constitution, Section 9.

Criminal investigations begin with police forces. Once evidence of

criminal activity is found, further investigations and prosecution is

handed over to the lawyers.

Their activities are also contained by due process requirements in both the

U.S. and Texas Constitutions.

In Posse Comitatus: the power of a law enforcement officer to

conscript able bodied makles to assist in a duty.

In Posse Comitatus Act: and 1878 federal law stating local

governments could not conscript federal military forces to enforce

the laws of the land – only the national government can do that.

Problem:

How reliable are police crime labs? Are they biased in favor of the

police or are they independent?

The Houston Crime Lab was found to tailor tests to theories.

A similar problem exists with how eyewitness testimony is treated.

How reliable is eyewitness testimony?

How to Obtain a Warrant

Prior to trial, arresting officers sometimes have to face a probable

cause hearing where it can be determined that an arrest, or the acquisition of evidence, was legal.

Click here for a thorough discussion of probable cause hearings.

Some Light Reading: Texas Search and Seizure

A bit less extensive: The Criminal Process: How it

WorksTexas Criminal Procedures

And in case you need it:

Your Rights During a Traffic StopKnow Your Rights When Dealing With Police

Officers Ticket Assassin

Police Traffic Stops and Vehicle Searches: FAQs

While awaiting trial, the accused can either be set free on bail, or

held in a city or county jail.

The top lawyer – chief legal officer - in the state is the Attorney

General (Wikipedia, TSHA), who is elected independently to four year

terms.

Each county also elects it own District Attorney and hires a number of assistant district attorneys and prosecutors.

Harris County District AttorneyTDCAA

TAC

Harris County also has an attorney who represents the county in legal matters the county is involved in as

a litigant. This person is not a prosecutor.

Cities also have their own legal departments headed by a city

attorney.

Alvin Legal DepartmentHouston Legal Department

Click here for an overview of the legal process after it is handed

from the police to the prosecutors as described by an assistant district

attorney in Travis County.

Before discussing this, here’s a reminder that there are several

types of criminal trial courts in the state, each with their own

jurisdiction.

Click here for the basic court structure in Texas.

Prosecutors are assigned to each of the District and County Courts.

Click here for the Brazoria County Courts and here for the Harris County Courts.

At the bottom are two types of local trial courts: (1) Justice of the

Peace courts an (2) Municipal Courts.

Justice of the Peace Courts are presided over by judges who need no qualifications

and are voted into office in partisan elections and decide cases involving civil

actions of less than $10,000, criminal misdemeanors punishable by fines, and

can perform magistrate functions, such as marriages and issuing warrants. The JP serves in precincts drawn by the county

court.

They serve as small claims courts, which provides an informal, inexpensive way to resolve disputes of $10,000 or less.

Click here for:

Brazoria County Justice of the PeaceHarris County Justice of the Peace

Municipal Courts are established and controlled by cities in means

established in city charters. They have jurisdiction over criminal

misdemeanors, municipal ordinance criminal cases, some civil cases and

they have magistrate functions as well. They are appointed or elected as established in the city charter.

Click here for:

Alvin Municipal CourtsHouston Municipal Courts

The next level up includes County Court of Limited Jurisdiction.

There are three types

Constitutional County Courts exist in each county in the state, and are elected to 4 year terms in partisan

county wide elections. They can serve as court of original

jurisdiction for misdemeanor cases or an appellate court for justice of

the peace or municipal courts.

This court is presided over by the county judge, but they must take

approved courses so they are qualified to do so.

Statutory County Courts at Law are created in large counties where a

singe constitutional court is insufficient. They have the same

jurisdiction as constitutional county courts, as well as civil

matters up to $100,000.

Statutory Probate Courts also exist in the larger counties in order to help the Constitutional County

Court with cases involving guardianship, competency and

wills.

The next step up from county level courts are District Courts. These are state trial

courts of general and special jurisdiction. They handle felonies, as well as civil

matters, divorce, land titled and contested elections. Most counties have one court.

Judges are elected in partisan district wide election to 4 year terms. The governor can

fill unexpired terms with the advice and consent of the Senate.

Harris County CourtsBrazoria County Courts

Click here for additional information about county courts

from www.county.org.

Above these courts are the Courts of Appeal and the Texas Court of Criminal Appeals and the Texas Supreme Court.

More on this process later.

But let’s go back to the process in a felony trial, which we now know happens in state district courts.

For data about various aspects of the Texas Judiciary click here for

the 2011 Annual Report

When a felony charge is filed by the police, the case file is sent to

the district attorney’s office and an assistant district attorney is

assigned to the case who reviews it and prepares it for presentation to

a grand jury.

What is a Grand Jury?

A grand jury consists of twelve people whose job is to review criminal

complaints and decide if there is sufficient evidence to issue an

indictment. The standard of proof for an indictment is probable cause. –

website: Harris County District Courts.

The Fifth Amendment of the U.S. Constitution states that no one can be sent to trial unless a grand jury indicts them, but this has not been

incorporated to the states.

Grand juries (TSHA) serve to ensure that a check exists on the

ability of government to take anyone to trial that they choose, but allegations exist that grand

juries fall short of that goal.

"a grand jury would 'indict a ham sandwich,' if that's what you

wanted.“ - Sol Wachtler

Prior to this – or at any time afterwards – the prosecutor and the

defense attorney can settle.

When they do, this is called a plea bargain, and the vast majority of

criminal cases – perhaps 95% - are plea bargained rather than hear

before a jury.

If a grand jury issues an indictment, then a criminal defendant is arraigned, which means that they stand before a judge and enter a plea of guilty, not

guilty or no contest.

All 6th Amendment constitutional protections are then in place, including

the right to an attorney.

Since I brought up the right to an attorney, a word or two is necessary about them.

The judiciary is unique in that it restricts participation to individuals it judges

qualified to argue before it. While it is true that anyone can defend themselves if they choose, only a licensed attorney who is a

member of the State Bar of Texas can argue cases for others before the court.

Should You Represent Yourself in Court?

Probably not . . .

Also important is the American Bar Association, which licenses law schools, and the Texas Board of

Law Examiners – the members of which are appointed by the Texas Supreme Court – which supervises

the bar exam.

In Gideon v Wainwright, the right to counsel was interpreted to mean a guarantee to counsel. This can be difficult for poor defendants, since

they can seldom afford a competent attorney. The Legal Services

Corporation was created in order to provide legal representation for those

who cannot afford it.

Local Public Defender’s Offices

Federal Public DefenderHarris County Public Defender

There are still controversies about what guarantees should exist for

people to receive competent representation. Not all lawyers are

good lawyers.

If there is no plea bargain, then – unless the defendant is willing to have the case decided before a judge – a jury is summoned for

trial.

As we know, the right to trials by jury go back to Magna Carta and

before. Of all governing institutions the jury is the only one that most citizens can be almost guaranteed

to serve on.

But few people are happy about it.

The right to jury trials is established in two separate places in the U.S. Constitution, as well as

the Texas Constitution.

For additional info: uslegal.com: Jury System

For relevant local information

Alvin Jury InformationHouston Jury Information

Brazoria County Jury ServicesHarris County Juror Services

US Courts: Jury Service.

The most essential requirement is that a jury be impartial. The job of the judge is to ensure that is the

case.

From Wikipedia:Jury, Juries in the United States, and Jury

Selection.

Texas Center for the JudiciaryTexas Justice Court Judges Association

Texas Judicial Foundation

Since trials are conducted most days, jurors are assembled on a

regular basis by the County District Clerk in order to be available to

serve if needed in any of the courts.

“If you are a registered voter, have a Texas driver's license or Texas

personal identification card, your name is entered in a computer system

designed to randomly select prospective jurors.” – American Juror.

Exceptions exist for who can serve. See How Juries are Selected and The Trial

Process in Texas: Jury Selection

Most days people with jury summons form that day’s Jury Pool. These are prospective jurors. They gather in a

Jury Assemble room.

They will be divided into Jury Panels and assigned to different court rooms.

In Harris County, 60 people are selected for each jury panel.

These 60 then go through voir dire, where lawyers on either side of the

case ask questions of panelists in order to determine if they wish to strike anyone from the jury that

believe may be biased against their side.

After voi dire, the petite jury is selected and they begin the process of

hearing the case. These generally consist of 12 people and they are

given the task of determining – within applicable law – whether a defendant is guilty of a crime, or liable for a civil

violation.

Controversy:

Jury Nullification

Jury Nullification occurs when a jury does not rule on whether a

defendant is guilty of a crime, but whether the law making the act a

crime is legitimate.

Judges tend to not like jury nullification.

In criminal trials, the burden of proof is on the prosecution – there is a

presumption of innocence. A defendant must be proven guilty. If

not they are acquitted – which doesn’t mean that they are innocent, just that the burden of proof was not meant –

A unanimous decisions of guilt beyond a reasonable doubt.

As we know already – if there are procedural irregularities in the

trial, meaning some violation of due process, or conviction of

violating a law that was judged unconstitutional – a guilty verdict

can be appealed.

In Texas this process begins with the Court of Appeals and can then go to the Texas Court of Criminal Appeals or the Supreme Court.

After that, the case could end up in the U.S. Supreme Court.

Of interest:

Texas Appellate Law Blog

If not, the defendant – now termed an offender – is sentenced.

Sentencing guidelines in the stateThe Sentencing Process

Sentencing Law and Policy

Death Penalty Sentences create unique problems in the state

Should the state take extra precautions to ensure that those

given the death penalty are actually guilty?

The Innocence Project has found evidence that it is necessary to do

so.

Is the Death Penalty cost effective?

Once sentenced, offenders are sent to penitentiaries run by the Texas Department of Criminal Justice

(Wikipedia), which is overseen by the Texas Board of Criminal Justice.

The board has nine members who are appointed by the governor to

staggered six year terms.

Texas – as well as the United States as a whole – has a very large prison population.

Texas Tough: Fast FactsPrisoners of the Census: Texas

Texas Tribune: Texas Prison InmatesWikipedia: List of Texas Prisons

Debate:

What is the purpose of confinement? Retribution?

Deterrence? Rehabilitation?

Should educational opportunities be given to offenders?

Windham School District

Are prison sentences too long? What social consequences are there when fathers are removed from families for long periods of

time.

Does this perpetuate crime?

Is a prison sentence the best way to deal with certain crimes? Drug crimes

especially.

Prison Violence

How responsible is the state for violence that occurs in prisons?

Privatization

Should the state contract the running of prisons to private businesses? If it does,

will this create an incentive to throw more people in prison?

Clemency

After a period of time, offenders are eligible for parole. This is

handled by the Texas Board of Pardons and Paroles (Texas

Tribune Topic)

The Board of Pardons and Paroles can also recommend that the

governor grant clemency.

Here is the process for death penalty clemency. The governor’s

powers are limited here.

Recidivism

Note: As of 4/17/12 these are incomplete. These slides will be

finished soon.