Volume 16 MAY 2007 No. 3 Recorder/2007/NL_0507.pdf · • Elaine Coffman, Athens • Regina...

VVVVVolume 16olume 16olume 16olume 16olume 16 MAY 2007MAY 2007MAY 2007MAY 2007MAY 2007 No. 3 No. 3 No. 3 No. 3 No. 3

©2007 Texas Municipal Courts Education Center, Austin. Funded by a grant from the Court of Criminal Appeals.

Citations continued on page 5

I N S I D E T H I S I S S U E

Features

Child Support Magistration .................. 4Municipal Court Week ......................... 10Dating Violence: Red Flags Campaign .......................................... 11

Columns

Academic Schedule ................................ 17Around the State .................................... 2Clerk’s Corner ........................................ 21Collections Corner ................................ 14From the Center ................................... 15From the General Counsel .................... 3Municipal Traffic Safety Initiative ........ 22One-day Clinics ..................................... 18Registration Form ................................ 19Resources for Your Court .................... 11

Continuances continued on page 5

Legal Basis for Legislative Continuancesby Lois Wright, Program Attorney, TMCEC

Citations - Part II(Tickets are for Concerts & Sporting Events)

by Ryan Kellus Turner, TMCEC General Counsel & Director of Education

This is the second part of a two part series.

In Part II of this article we will delveinto some more complicated issuespertaining to citations, including thecircumstances where a peace officer isauthorized and prohibited from issuinga citation, the consequences of refusingto sign a citation, why citations shouldnot be mailed, and other constitutionaland procedural issues relating tocharging and trial.

11. Under what circumstances is apeace officer legally authorized toissue a citation?

In recent years, especially with theincreased presence of peace officers inschools, TMCEC has receivedcomments from judges andprosecutors that anecdotally suggestthat peace officers inappropriatelyissue citations. This begs the question:When is a peace officer legallyauthorized to issue a citation?

This question should be distinguishedfrom a question addressed in Part I:Are peace officers required to issuecitations in lieu of arrests for most

With the Texas Legislature well into its80th Regular Session, municipal courtsmay encounter an uncommon requestfrom defendants and their law-makingattorneys in the form of a motion forlegislative continuance. This uniquetenet has a history dating back to the1920s, and is available to legislatorswho are parties or attorneys of recordin a matter before the state as a meansof postponing proceedings through-out the legislative session.1

A continuance is the adjournment orpostponement of a trial or other courtproceeding to a future date.2 Chapter29 of the Code of Criminal Proce-

dure outlines the three ways in which acase is generally continued: by thecourt as a matter of law,3 through theconsent of both the defense andprosecutor in open court,4 or by aprosecutor or a defendant for goodcause.5 The “for cause” continuance isthe most prevalent form of continu-ance heard by municipal courts.

A special “for cause” continuance isreserved for members and members-elect of the Texas Legislature inChapter 30 of the Civil Practice andRemedies Code.6 Through it, alegislative member or member-electwho is either a party or legal counsel in

a civil or criminal case may delay his orher cases from 30 days before Sessionbegins until 30 days after the Legislatureadjourns.7 This would include mattersancillary to the suit, probate matters,and appeals, but excludes temporaryrestraining orders.8

During the 2003 meeting of the 78th

Legislative Session, legislators answeredintense public criticism that thesecontinuances were widely abused bylaw firms and defendants as an unwar-ranted delay tactic. Notably, legislativecontinuances were obtained in two ofthe high profile Ford-Firestone rollover

The Recorder May 2007

Texas Municipal CourtsEducation Center

1609 Shoal Creek Boulevard, Suite 302Austin, Texas 78701

512/320-8274 or 800/252-3718Fax: 512/435-6118

Website: www.tmcec.com

Fair and Impartial Justice for All

FY07 TMCA/TMCEC OfficersPresident: Robin Ramsay, DentonPresident-Elect: Brian Holman, Lewisville1st V.P.: Robert Doty, Lubbock2nd V.P.: Ninfa Mares, Fort WorthSecretary: Leisa Hardin, CrowleyTreasurer: Robert C. Richter, MissouriCityPast-President: Steven Williamson, FortWorth

DirectorsGary Ellsworth, Spearman • StewartMilner, Arlington • C. Victor Lander, Dallas• Elaine Coffman, Athens • Regina Arditti,El Paso • Julian E. Weisler, II, Brenham •Walter Dick Kettler, Beverly Hills • DonnaStarkey, Alvin • Lester Rorick, Pasadena •Steven Kidder, Victoria

Staff• Hope Lochridge, Executive Director• Ryan Kellus Turner, General Counsel &

Director of Education• Margaret Robbins, Program Director• Meichihko Proctor, Program Attorney &

Deputy Counsel• Lois Wright, Program Attorney• Allison Attal, Program Coordinator• Patricia Russo, Program Assistant II• Margaret Danforth, Admin. Director• Herman Flores, Multimedia Specialist• Carrie Harper, Registration Coordinator• Noël Wells, Administrative Assistant• Shane Scribner, Research Assistant

Published by the Texas Municipal CourtsEducation Center through a grant from theTexas Court of Criminal Appeals. Subscrip-tions are free to all municipal judges, clerks,prosecutors, and support personnel em-ployed by the municipal court. Others maypurchase an annual subscription for $50.

Articles and items of interest not otherwisecopyrighted may be reprinted with attributionas follows: “Reprinted from the The Re-corder: Journal of Texas Municipal Courtswith permission from the Texas MunicipalCourts Education Center.”

The views expressed are solely those of theauthors and are not necessarily those of theTMCA Board of Directors or the staff ofTMCEC.

AROUND THE STATETMCA Fall Annual Meeting

The Texas Municipal Courts Association has scheduled its Annual Meeting onSeptember 13 -15, 2007 in Dallas. The host hotel will be the Hilton Dallas LincolnCentre at 5410 LBJ Freeway, Dallas 752040-6276 (972/934-8400), located nearthe Galleria. In addition to the annual business meeting of the Association, alegislative update will be offered on changes from the 80th Session. Participants areresponsible for making and paying for their own hotel rooms. The conference rateis $100 for a king room. Only a limited number of rooms are available. Theregistration fee for the Annual Meeting is $95. Additional information about theconference may be obtained by writing or calling:

At the Annual Meeting, the Outstanding Judge and Clerk of the Year will beannounced. See page 13of this journal for information about the award and thedeadline for entries.

TMCEC, a 501(c)(3), Now Accepts DonationsThe new 501(c)(3) tax status for the Texas Municipal Courts Education Centerwent into effect January 1, 2007. The purpose of this new organization is stated inthe new bylaws— The Corporation is organized exclusively for charitable, literary, andeducational purposes of providing: (1) judicial education, technical assistance, and the necessaryresource material to assist municipal judges, court support personnel, and city attorneys inobtaining and maintaining professional competence in the fair and impartial administration ofcriminal justice; and, (2) information to the public about the Texas judicial system and lawsrelating to public safety and quality of life in Texas communities. The complete bylaws maybe found on the TMCEC website: www.tmcec.com/files/BylawsMaster.doc. Thebylaws are written such that the officers and directors are the same as those ofTMCA.As a non-profit organization, TMCEC now accepts contributions and memorialsthat are tax deductible. The TMCEC Board of Directors and staff members arevery appreciative of the following donations that have been received since the lastissue of The Recorder.In Honor

Judge Steve Ballanytne, Terrell Hills, in honor of TMCECHope Lochridge, Austin, in honor of Margaret RobbinsIn Memory

Judge Brian Holman, Lewisville, in memory of Louise Katherine Novak Turner (grandmother of Ryan Turner)Judge Walter Dick Kettler, Waco, in memory of Louise Katherine Novak TurnerHope Lochridge, Austin, in memory of Louise Katherine Novak TurnerJudge Robin A. Ramsay, Denton, in memory of Louise Katherine Novak TurnerJudge C. Victor Lander, Dallas, in memory of Louise Katherine Novak TurnerJudge John Vasquez, Austin, in memory of Louise Katherine Novak Turner

Hon. Robert Doty(TMCA First Vice-President)Municipal JudgeCity of LubbockP.O. Box 2000Lubbock, TX 79457c: 806/775-2492fax (court): 806/775-2468email: [email protected]

Hon. Robert C. Richter, Jr.(TMCA Treasurer)Presiding JudgeCity of Missouri City1350 NASA Parkway, Ste. 200Houston, TX 77058o: 281/333-9229fax: 281/333-1814email: [email protected]

May 2007 The Recorder

FROM THE GENERAL COUNSEL Ryan Kellus Turner

By the time you read this column, theMay 14 deadline for submittingresponses to RQ-0579-GA will havepassed. Nevertheless, I am sure thatmany city attorneys will have submittedletters and briefs to the AttorneyGeneral. With this said, allow me tobring those who don’t spend their daysreading AG opinion requests up tospeed.

“Houston, we have a problem.”

The question posed by Harris CountyAttorney Mike Stafford on March 27th

in RQ-0579 asks if the juvenile casemanager fee, authorized by Article102.0174 of the Code of CriminalProcedure, is constitutional. Afterreviewing case law and AttorneyGeneral Opinions, Harris Countyconcludes that it violates due processand equal protection guaranteed byboth the Texas and U.S. Constitutions.

Most local governments that questionthe legality of a state statute like theone at issue (giving local governmentsthe choice to collect a court cost for adesignated purpose, if the need exists)ask for an Attorney General opinionbefore they begin collecting the cost.Harris County Commissioners votedon December 19, 2006 to create ajuvenile case manager fund and tobegin collecting “a fee not to exceed$5” as a court cost effective March 1,2007.

On March 27, 2007, the Harris CountyAttorney requested the AG’s opinion.The crux of the argument contained inthe request is that the court costs,imposed pursuant to the decision oflocal government to fund juvenile casemanagers, results in a “considerable

The Death of Local Courts Costs: Are Your Juvenile Case Manager, CourtSecurity, and Court Technology Funds in Peril?

possibility” that defendants will receiveunequal punishment compared tolocalities who have not opted to adoptthe juvenile case manager fund. Therequest suggests that the better practiceis for the Legislature to mandate thecollection of the juvenile case managerfee even if there is no local need orjustification for the collection of thecost.

The essence of Harris County’sargument is by no means new to thosewho have kept up over the years withthe law of court costs. While the samearguments have been used twiceunsuccessfully in two different districtcourts to attack the constitutionality ofanother court cost statute (Section51.702, Government Code), this is thefirst time that such arguments havebeen made towards a “local courtcost” (i.e., a court cost authorized bystate law that local governmentschoose to collect, depending on need,for a designated purpose that relatesto the operation of the court).

From the perspective of the judicialoperations, RQ-0579-GA has thepotential to be one of the mostimportant Attorney General opinionsto be issued during Greg Abbott’sadministration. The Attorney General,in responding to RQ-0579, will havean opportunity to bring the role ofcontemporary court costs into focusand build upon the missing detailsfrom earlier AG opinions. To date,despite clear legislative intent, no AGopinion has differentiated between“fines,” “court costs,” and “fees.” Sucha distinction is long overdue.

While Harris County argues that theremust be a clear relationship between

an offense and a court cost for it to bevalid, “court costs” and “fees” oftendo not directly relate to the operationof the court in which the defendant ischarged; may have nothing to do withthe offense for which the defendant ischarged; and can vary depending onwhere you live. Such “user fees,” arewoven throughout Texas statutes andare accepted throughout the nation.They are especially common in stateswhere trial courts are not funded bythe state. All the more reason that inresponding to RQ-0579 localgovernments must hope that theAttorney General will distinguishbetween “fines,” “court costs,” and“fees.”

The authorities citied by Harris Countyin RQ-0579 for the proposition thatArticle 102.0174 is unconstitutional relyon a cluster of Texas Court ofCriminal decisions handed downbetween the years 1928 and 1942, atime where court costs were nominaland long before the notion of “userfees” or “local court costs” everreached the Texas Legislature. Thecircumstances and statutes at issue inthese cases are readily distinguishablefrom Article 102.0174. Furthermore,because they were issued prior to thecontemporary era of court costs andfees, they fail to differentiate betweenthe purpose of a fine (which is topunish and/or deter) and “court costsand fees” (including local court costs)that are used to fund vital initiatives ofboth state and local government.While court costs and fees have aneconomic impact on those ordered topay, they are administrative in naturerather than punitive, and should not beplaced in the same category as fines


for the purpose of equal protectionanalysis.

The Bigger Picture

The stakes are high, especially formunicipal courts. If the AttorneyGeneral opines that Article 102.0174 isunconstitutional, it would presumablyplace other state statutes authorizingthe adoption of “local court costs”pursuant to ordinance in danger ofbeing labeled unconstitutional. Whilemost cities have not adopted ajuvenile case manager fund, the vastmajority of cities have adopted themunicipal court building security fund(Article 102.017, Code of CriminalProcedure) and the municipal courttechnology fund (Article 102.172,Code of Criminal Procedure).

Article 102.0174 was modeled andclosely parallels in content themunicipal court building security fundand the municipal court technologyfund. While district, county, and justicecourts have their own statutesgoverning security and technologyfees, the Legislature and the appellatecourts have long realized thatmunicipal courts are procedurallydifferent and have needs that are bestassessed at the local level. For instance,rural municipal courts that adjudicate a

low-volume of cases meet once ortwice a year and likely have no actualcourt facilities. Such cities can hardlyjustify the establishment of a securityor technology fund. Theconstitutionality of these statutes hasnot been called into question becauseof an obvious rational basis: Localgovernments should not collect a statecourt cost for a designated purpose ifthe need does not exist.

The Rest of the Story

RQ-0579 does not explain thelegislative history or the role juvenilecase managers play in the adjudicationof juvenile cases in municipal andjustice courts, let alone the substantialrole that municipal and justice courtshave assumed in the Texas juvenilejustice system during the last 20 years.

The juvenile case manager fund wassupported by the Texas JudicialCouncil and was part of the last“juvenile omnibus bill” compiledunder the leadership of the lateProfessor Robert O. Dawson of theUniversity of Texas Law School. Thereason that Article 102.0174 addressesmunicipal, county, justice, and juvenilecourts and did not impose a “one sizefits all” fee is that Dawson realizedthat rural counties and cities (even with

the juvenile case manager fund) maybe unable to afford a juvenile casemanager without the cooperation oftheir neighbors. This is where thejuvenile case manager concept isunique and different than the municipalcourt building security fund and themunicipal court technology fund.Article 45.056(a) of the Code ofCriminal Procedure allows for citiesand counties to enter into interlocalagreements to collectively fund andoperate a juvenile case managerprogram (e.g., in rural Texas, threesmall towns could partner together orcould partner with the county). This isthe reason that Article 102.0174 wasnot written as a mandatory court cost.

Final Thoughts

While many Texas cities, because ofpotential unintended consequences,may not initially welcome HarrisCounty’s request for an AttorneyGeneral opinion, RQ-0579 is avaluable opportunity for the AttorneyGeneral to provide greater detail to anarea of the law that needs furtherclarification. To this end, regardless ofthe outcome, Mike Stafford and hisstaff deserve acknowledgment fortheir efforts in bringing such issues tothe forefront of our public legaldialogue.

Many children across Texas rely onchild support payments. Parents whorefuse to follow the laws regardingchild support should be heldaccountable. Texas Attorney GeneralGreg Abbott has said that failure tofollow court orders that requirepayment of financial and medicalsupport must be prosecuted to ensureTexas children receive the support theyneed.

Child Support Magistration: Do Municipal Court JudgesHave Authority to Magistrate Child Support Offenders?

By Meichihko Proctor, Program Attorney & Deputy Counsel, TMCEC

As a magistrate, you may encounterviolators of Texas child support lawsin the jails where you magistrate.Several judges throughout the statehave asked whether there are differentlaws for child support magistrationthan other criminal offenses. Inaddition, if there are different laws,what authority, if any, do municipaljudges acting as magistrates haveregarding these violators in the jails

where municipal judges aremagistrating?

The answer is that there are differentlaws for child support magistration.Essentially, no judge other than thejudge handling the child support casehas the statutory authority to set orchange bond for child supportoffenders. Bond for these offenders isaddressed in Chapter 157 of the

Child Support continued on page 17


Citations continued from page 1

fine-only offenses? While the formerquestion dealt with the discretion of apeace officer to either make a fullcustodial arrest versus, for lack of abetter term, a “non-custodial arrestand release” (i.e., issue a citation), theCode of Criminal Procedure providesno express guidelines for thecircumstances where the issuance of acitation is preferred or contemplated.

However, since both the Code ofCriminal Procedure and theTransportation Code describe theissuance of a citation as being incidentto an arrest, presumably a citation canonly be issued under the samecircumstances that a peace officer canmake a warrantless arrest.

As all arrests (including warrantlessarrests) require probable cause, thepeace officer issuing a citation must

Continuance continued from page 1

cases in 2001 and for Fen-Phendefendant, Wyeth, in 2002.9

As a result of those concerns, Gover-nor Perry signed into law House Bill1606, requiring public disclosure of alllegislative continuances sought, thecase(s) involved, the date the lawyer-legislator was retained, and the statusof the motion before the court.Legislators must now file a report withthe Texas Ethics Commission withinthree business days after the date anapplication for legislative continuance isfiled with the court.10

Additionally, since 2005 lawyer-legislators have been required to reportthese continuances on their personalfinancial statements, which are open tothe public.11

In municipal court, a legislator request-ing a continuance must file an affidavitstating the grounds for the continu-ance12 and a declaration of his or herintent to participate actively in thepreparation or presentation of the

case, with a statement that he or shewas not retained solely as a delaytactic.13 Then, the court should make afinding regarding the employment ofthe lawyer-legislator by the defendant.For criminal cases, if the employmentbegan on or after the 15th day beforethe date on which the suit was set fortrial, the continuance is discretionarywith the court. For any longer periodof employment, the continuance ismandatory upon the court.14

After receiving an application for alegislative continuance and making thenecessary findings, the court is obli-gated to reschedule the case not before30 days after the Legislature adjourns.15

Moreover, the legislative continuance isconsidered to be a matter of right,and should not weigh in the court’sdecision to grant subsequent requestsfor continuance.16

Although rare, the legislative continu-ance is clearly binding law on munici-pal courts, and there exists a particularneed to be cognizant of its existenceand proper execution during legislative

periods._____________1 Tex. Civ. Prac. & Rem. Code Ann. §30.003 (Vernon 2006).2 Black’s Law Dictionary 257 (Bryan A.Garner ed., 7th ed., West 2000).3 Tex. Crim. Proc. Code Ann. Art. 29.01(Vernon 2006).4 Id. at Art. 29.02.5 Id. at Art. 29.03.6 Tex. Civ. Prac. & Rem. Code Ann. §30.003 (Vernon 2006).7 Id.8 Id. at § 30.003(a).9 Texans for Pub. Justice, Continual PerksSlow Texas Courts: How 32 Lawmakers Claimed431 Court Delays in Two Years 4 (2006).10 Tex. Civ. Prac. Rem. Code Ann. § 30.003(g) (Vernon 2006).11 Tex. Gov’t Code Ann. § 572.0251(Vernon 2006).12 Tex. Civ. Prac. & Rem. Code Ann. §30.003 (d) (Vernon 2006).13 Id. at § 30.003 (e).14 Id. at § 30.003 (c-1).15 Id. at § 30.003 (a).16 Id. at § 30.003 (f).

have probable cause that the suspecthas committed a Class Cmisdemeanor or an offense otherwisepunishable upon conviction by theimposition of a fine-only. Theprobable cause presumably must becoupled with one of the followingstatutory exceptions to the warrantrequirement contained in the TexasCode of Criminal Procedure: (1)Offense within presence or view if“classed as an offense against thepublic peace;”1 (2) Offense within theview of a magistrate;2 (3) Class Coffense involving family violence; (4)Preventing the consequences of theft;3and (5) The cacophony of confusionknown as “suspicious places.”4

While most of the statutoryauthorization for warrantless arrestsare relatively straight forward,suspicious places is not.5 Article14.03(a)(1) states that “[a]ny peace

officer may arrest without warrantpersons found in suspicious places andunder circumstances which reasonableshow that the persons have been guiltyof some felony, violation of Title 9,Chapter 42, Penal Code, breach of thepeace, or offense under Article 49.02,Penal Code, or threaten, or are aboutto commit some offense against thelaws.”

Assuming that citations can be issuedonly under the same circumstances as apeace officer can make warrantlessarrest, one instance where Article14.03(a)(1) appears applicable is wherea suspect is alleged to have engaged indisorderly conduct but not within theview of a peace officer. The peaceofficer presumably could issue acitation for disorderly conduct afterconducting an investigation anddetermining probable cause.


Because the Code of CriminalProcedure does not define a suspiciousplace, the meaning of the term haslargely been left to the courts. Sinceappellate courts have not held that anyplace is inherently suspicious, courtsshould use the totality of thecircumstances test in deciding if Article14.03(a)(1) is appropriate.6

It is not uncommon for peace officersto show up at the location of anautomobile accident and, afterconducting an investigation, issue acitation to one or more personsinvolved in the accident. Assumingprobable cause exists, the peaceofficer’s authority to issue a citation insuch instances (despite not having seenthe accident) ostensibly comes fromthe notion that the scene of theaccident is a suspicious place.

12. Are there any circumstanceswhere a peace officer is notauthorized to issue a citation?

Yes. The law does not authorize peaceofficers to issue citations for publicintoxication and for traffic offensescommitted on private roadways.

Public intoxication. While publicintoxication is listed as one of thestatutory exceptions to the warrantrequirement,7 the Code of CriminalProcedure provides a specific rulegoverning the arrest and release ofindividuals accused of publicintoxication. Citations are not listed asan option. This is presumably due tothe danger that an intoxicated personmay pose to themselves or others.Rather, Article 14.031 provides that theindividual may be released if: (1) theofficer believes that incarceration isunnecessary for the protection of theindividual or others; and (2) either theindividual is released to the care of anadult who agrees to assumeresponsibility for the individual, orverbally consents to chemicaldependency treatment and is admittedfor treatment in a program in atreatment facility licensed by the Texas

Commission on Alcohol and DrugAbuse (TCADA).

Presumably when public intoxicationcases are handled pursuant to Article14.031 such individuals are to becharged by the filing of a sworncomplaint.

Private roadways. A peace officerhas no authority to issue a citation fora traffic offense on private streets; ifsuch a citation is issued, it may not beprosecuted. Article III, Section 52 andArticle XI, Section 3 of the TexasConstitution prohibit the use of publicmonies to enforce state and municipaltraffic laws on its private streets.8

13. What happens if a peaceofficer attempts to issue a citation,but the suspect refuses to sign thecitation?

Rather than being an “arrest andrelease,” the arrest becomes a “fullcustodial arrest.”

If the offense is a Subtitle C, Rules ofthe Road violation, Section 543.005 ofthe Transportation Code provides that“[t]o secure release, the personarrested must make a written promiseto appear in court by signing thewritten notice prepared by thearresting officer.”9

Section 543.002 of the TransportationCode states that a person arrested for aviolation of Subtitle C shall beimmediately taken before a magistrateif the person either demands animmediate appearance before amagistrate, or refuses to make a writtenpromise to appear.

Notably, the Code of CriminalProcedure contains no language parallelto Sections 543.002 or 543.005 of theTransportation Code. Article 14.06requires peace officers to presentarrested persons before a magistratewithin 48 hours.10 Despite specificlanguage, it is logical to assume thatsomeone refusing to sign a citation fora non-traffic offense, like their SubtitleC counterparts, would be subject to a

full custodial arrest. Other than Chapter543 of the Transportation Code, whichis limited in scope to Subtitle C Rulesof the Road violations, Article 14.06(b)of the Code of Criminal Procedure isthe only other statutory authority forthe issuance of a citation. Article14.06(b) does not require a person tomake any promise to appear nor doesit expressly require the defendant tosign the citation. While this potentiallycould pose a proof problem in theevent the case goes to trial, personsissued citations pursuant to Article14.06(b) may nonetheless be prosecutedfor failing to appear under Section38.10 of the Penal Code.11

The provisions relating to citationscontained in the Transportation Codeand the Code of Criminal Procedureappear to be inconsistent. However, inBerrett v. State,12 the Houston 1st Courtof Appeals held that in the context of aseat belt violation there is nodiscrepancy between Article 14.06(b)and the requirement of Chapter 543 ofthe Transportation Code. Rather, thetwo provisions should be read inunison, and Chapter 543 merely buildsupon the framework of Article14.06(b). As of date, the holding inBerrett has not been adopted by othercourts of appeals.

An alternative available to peaceofficers encountering a suspect whorefuses to sign a citation is to have thepeace officer or another person withknowledge file a sworn complaint incourt. Upon a request from aprosecuting attorney, the defendant maybe summonsed to appear in court.13

14. Does the law authorizecitations to be issued via mail?

No. Remember, a citation is bestanalogized to an “arrest and release.”You cannot arrest someone by mail,nor can they promise to appear.Accordingly, a citation should only beissued under the same circumstanceswhere a peace officer can make mostwarrantless arrests. When a citation


cannot be lawfully issued by a peaceofficer, the Code of CriminalProcedure contemplates that a peaceofficer may attest to a probable causeaffidavit and either a warrant may beissued or, with a prosecutor’s motion, asummons shall be issued to order theaccused to appear in court.

In Carson v. State, the Fort Worth Courtof Appeals stated, “We cannot holdthat the mailing or receipt of a Class Cmisdemeanor citation constitutes anarrest.” 14

While a defendant who responds to amailed citation presumably submits tothe authority of the court and waivesthe ability to make any meaningfularguments about service of process, itis interesting to imagine what wouldhappen if a defendant refused torespond to a mailed citation and wassubsequently arrested.

The practice of mailing citations shouldnot be condoned. Peace officers whomail citations are likely to appearunaware of procedures stated in lawand/or too lazy to do what is necessaryto procure a summons.

15. Is a person’s obligation toappear in court following theissuance of a citation in anywayeffected by the addition of protestwords, e.g.,“forced to sign underthreat, duress, and coercion?”

No. The issuance of a citation is not acivil contractual matter.15 This is,however, one of the favoritemaneuvers of sovereign defendantgroups such as the Republic of Texas.

16. If an individual is arrested andtaken to jail, can the citation aloneserve as probable cause for thedefendant’s arrest?

No. In simplest terms, a citation alonedoes not provide enough informationfor a magistrate to determine probablecause. It is not sworn to or under oath.

Despite this truth, many judges haveexperienced individuals who have been

arrested for Class C misdemeanors andplaced in jail with nothing more tosubstantiate the person’s arrest than amanila folder containing a citation withthe word “INSTANTER” written onit. Such arrests, which have long beenpart of Texas criminal justice folklore,are not authorized by statutory or caselaw.

In 1975, the U.S. Supreme Court heldin Gerstein v. Pugh16 that a suspectarrested without a warrant is entitledunder the 4th Amendment to a promptdetermination of probable cause.

Seven years later, in Sanders v. City ofHouston, a federal district courtenforced the general mandate stated inGerstein and held that a probable causedetermination must occur at the Article15.17 presentation before a magistrate.It enjoined the City of Houston fordetaining arrested persons for longerthan 24 hours.17

Finally in 1991, in County of Riverside v.McLaughlin, the U.S. Supreme Courtcreated a right to have probable causedetermined generally within 48 hoursof any warrantless arrest.18

Probable cause determinations duringthe presentation before a magistratehave become a matter of localpractice.19 Article 15.17 of the Code ofCriminal Procedure does not containany such requirement. Article 15.17(b)does, however, authorize a magistrateafter an accused is charged with a fine-only offense to “identify the accusedwith certainty” and release themwithout bond and order them toappear for arraignment in “countycourt or statutory county court.” Theproblem with this language, of course,is that only municipal and justice courtshave original jurisdiction of fine-onlyoffenses. This is a long standingoversight in the Code of CriminalProcedure that has yet to be correctedby the Texas Legislature.

While it would have been logical toassume that the constitutional right

created by County of Riverside v.McLaughlin would be codified in theCode of Criminal Procedure(presumably in Article 15.17) during thenext regular session of the TexasLegislature, it did not happen. In fact, ittook nearly 10 years for the rightprovided in County of Riverside v.McLaughlin to find its way into theCode of Criminal Procedure.

As part of the Texas Fair Defense Actof 2001, Article 17.033(b) of the Codeof Criminal Procedure was amendedto require that misdemeanants bereleased on a $5,000 personalrecognizance bond if probable causehas not been determined by amagistrate within 24 hours of arrest.20

While this amendment is not part ofArticle 15.17, to a certain degree itcodifies the essence of Gerstein and itsprogeny.

17. Without more, can a citation bethe basis for issuing an arrestwarrant?

No. A sworn complaint (a.k.a. aprobable cause affidavit) is requiredbefore a warrant is issued. The Courtof Criminal Appeals has held however,that a citation can be the basis fromwhich an affiant may attest toinformation that may suffice asprobable cause and justify the issuanceof a warrant.21

Beware of the confusion over theword “complaint” that is unique toTexas criminal law. Though it is easy todo, do not confuse the complaint(probable cause affidavit) with thecomplaint which is the charginginstrument.22

18. If the issuance of a citation isan “arrest and release,” can a peaceofficer search a person’sautomobile?

No. In Knowles v. Iowa,23 the U.S.Supreme Court decided not to extendthe “search incident to arrest” doctrine24

to circumstances where a peace officerelects to issue a citation in lieu of


making a full custodial arrest. The statelaw authorizing a “search incident tocitation” was deemed a violation of the4th Amendment. In the decision, theCourt emphasized that: (1) the threat toa peace officer issuing a citation is lessthan that of a peace officer making afull custodial arrest; (2) there were lessinvasive measures available to peaceofficers issuing citations that couldminimize the danger they experiencewhile issuing citations; and (3) once apeace officer has all of the informationnecessary to issue a citation, there ispresumably no need to preserve andprotect evidence.25

19. Is a citation an “arrest” for 5th

Amendment self-incriminationpurposes?

No. In Berkemer v. McCarty,26 the Courtexplained:

Two features of an ordinary traffic stopmitigate the danger that a person questionedwill be induced ‘to speak where he would nototherwise do so freely’. First, detention of amotorist pursuant to a traffic stop ispresumptively temporary and brief. The vastmajority of roadside detentions last only afew minutes. A motorist’s expectations, whenhe sees a policeman’s light flashing behindhim, are that he will be obliged to spend ashort period of time answering questions andwaiting while the officer checks his license andregistration, that he may then be given acitation, but that in the end he most likelywill be allowed to continue on his way. Inthis respect, questioning incident to anordinary traffic stop is quite different fromstationhouse interrogation, which frequentlyis prolonged, and in which the detainee oftenis aware that questioning will continue untilhe provides his interrogators the answers theyseek.27

Charging and Trial Issues

20. Is it legal for an issuing agencyto “void” a citation?

It depends on when it is voided andwhat you think “voided” means. In Cityof Houston v. Cotton,28 the Houston 14thCourt of Appeals held that a former

sanitarian’s alleged ticket fixing schemedid not constitute a whistlebloweraction because she failed to providesubstantial proof that a violation oflaw occurred. In dicta, the courtaccepted the proposition that if thesanitarian’s supervisor or any otherperson “destroyed” a citation once itwas “in the system,” there would havebeen a violation of the law. In thisinstance, however, citations were beingvoided and placed in a folder forvoided citations. One witness testified,and the court did not disagree, that adocument was officially designated a“government document” once “it goesthrough the system.” Accordingly,under the unambiguous language ofSection 37.10 of the Penal Code(tampering with a governmentaldocument), if managers in the City ofHouston Health Department—in thecourse of their official duties—markedcitations as void or decided not topursue them further without destroying,concealing, removing, or otherwiseimpairing the verity, legibility, oravailability of the citations, theirconduct would not violate Section37.10.

While a plain reading of Section 37.10of the Penal Code reveals otherpossible ways that a citation could bethe basis of an alleged violation of thestatute (e.g., selling, stealing, or otherwisefraudulently using citations), the Courtof Criminal Appeals decision in State v.Vasilas,29 rejected the notion that a“governmental record” excludesdocuments filed with courts. Debatably,this lends credence to the notion that acitation is a governmental record whenfiled in municipal court. It should not,however, be construed to mean that adocument such as a citation cannot be agovernmental record until it is filed incourt.

21. Is a citation a formal charginginstrument?

No. As the Court of Criminal Appealsexplains in Huynh v. State, “There are

three types of charging instruments —indictments, informations, andcomplaints. Indictments andinformations are provided for anddefined in the Texas Constitution. Theyare also defined in the Code ofCriminal Procedure. Complaints arenot addressed in the Constitution, butare provided for in the Code ofCriminal Procedure in a variety ofcontexts. A complaint is a swornaffidavit charging the commission ofan offense and serves as the basis foran arrest warrant.”30

22. Under any circumstances, can acitation serve as a complaint?

Yes, but only in two limitedcircumstances: when the defendant isnot contesting guilt, and when thedefendant waives the right to becharged by sworn complaint.

Article 27.14(d) of the Code ofCriminal Procedure states, “The writtennotice serves as a complaint to whichthe defendant may plead ‘guilty,’ ‘notguilty,’ or ‘nolo contendere.’ If thedefendant pleads ‘not guilty’ to theoffense, a complaint shall be filed thatconforms to the requirements ofChapter 45 of this Code, and thatcomplaint serves as an originalcomplaint” (emphasize added).31

Article 27.14(d) also states, “Adefendant may waive the filing of asworn complaint and elect that theprosecution proceed on the writtennotice of the charged offense if thedefendant agrees in writing with theprosecution, signs the agreement, andfiles it with the court.”32

Otherwise, a case in municipal courtcommences with the filing of a sworncomplaint. “The purpose of acomplaint in corporation [municipal]court is to commence the proceedingsand thereby confer jurisdiction uponthe court. This is the ordinary purposeand lawful use of a complaint.”33

In instances where cases are initiated bycitation but a complaint is never filed,


there is a good argument to be madethat the court has no jurisdiction.

While the Code of Criminal Procedurehas dedicated provisions relating towhen an indictment is presented andwhen an information is presented,34 itcontains no similar provisions relatingto when a complaint is presented.Professors Dix and Dawson note intheir treatise: “There is no parallelprovision for the presentment of acomplaint, but presumably it isconsidered presented when it is filedwith the court.”35

23. Does the filing of a citation tollthe statute of limitations?

No. The Texas Code of CriminalProcedure does not state that the filingof a citation tolls the statute oflimitations. Nor does it, however,expressly state that the filing of a sworncomplaint tolls the statute of limitation.

Article 12.02 of the Code of CriminalProcedure states “An indictment orinformation for any misdemeanor maybe presented within two years from thedate of the offense, and notafterward.”36

Is the omission of the term“complaint” from Article 12.02 anoversight by the Legislature? Withoutclear statutory guidance, we turn to caselaw.

The Court of Criminal Appeals hasstated that “in absence of a statutethere is no period of limitation barringprosecution because of the lapse oftime.37 Furthermore, the Court inHuynh v. State refused to readreferences to “indictments” and“informations” to also implycomplaints.38

This hardly should be construed tomean that Class C misdemeanors haveno statute of limitations. The vastmajority of judges and prosecutors inTexas believe that the statute oflimitations in Class C misdemeanors istwo years, despite the fact that the

statute contemplates only indictmentsand informations. This popular law issupported by an older Court ofCriminal Appeals decision, Ex parteHoard, where a complaint in justicecourt alleging illegal gaming was heldbarred by the two year statute oflimitations.39

24. Do defects in a citationinvalidate a criminal charge?

It depends on the circumstances.

Data entry errors (i.e., typos) and othererroneous information made in thecitation by peace officers can generallybe corrected by a sworn complaint.The question is who is going to be thecomplainant? TMCEC commonlyreceives telephone calls from clerkswho are given citations that aredefective or ambiguous in stating anoffense. Ethically, court clerks shouldnot be expected by peace officers to“fill in the blanks.” Peace officers orprosecutors should remedy the defects.

Ambiguous citations that fail to state aspecific offense would likely bedeemed an insufficient source ofinformation for an affiant to attest to inobtaining a warrant.40 Nor, presumably,can a citation that fails to state anoffense satisfy Article 45.019(a)(4) ofthe Code of Criminal Procedure thatrequires that a complaint “must showthat the accused committed an offenseagainst the laws of this state, or statethat an affiant has good reason tobelieve and does believe that theaccused has committed an offenseagainst the laws of this state.”

A trial court, in very limitedcircumstances can dismiss a charginginstrument.41 However, as previouslyexplained, the charging instrument inmunicipal and justice court is a sworncomplaint, not the citation. Accordingly,it would be inappropriate for a courtto dismiss a defective citation withoutgiving the State an opportunity to beheard or remedy the defect since underArticle 27.14(d), a citation is intended

only an interim complaint and timesaving device. The exception to this, ofcourse, would be the rare instanceswhere the defendant has waived theirright to be charged by a sworncomplaint. In such limited instanceswhere a valid waiver has occurred andthe citation is the charging instrument,case law suggests that a court has thepower to dismiss a case without theState’s consent if it contains a defect.42

It’s hard to imagine many circumstanceswhere it is in the prosecutor’s advantageto ask the defendant to waive beingcharged by a sworn complaint. If thedefendant waives the right to becharged by a formal complaint andelects that the prosecution proceed onthe written notice of the chargedoffense, pursuant to Article 27.14(d),Code of Criminal Procedure, anydefect in the citation could prove fatalto the prosecution (e.g., instances wherethe citation states the wrong day,month, year, location, etc.).

25. Can a citation be admitted toevidence at trial?

Yes, in limited circumstances. Generally,under Texas Rules of Evidence, Rule803(8), public records and reports arenot excluded by the hearsay rule, eventhough the declarant is available as awitness. Rule 803(8)(b) allows testimonyof matters observed pursuant to dutyimposed by law as to those matterswhere there was a duty to report. Theexception, however, specificallyexcludes public records and reports “incriminal case matters observed bypolice officers and other lawenforcement personnel.” Nor, underRule 803(6), can such a record orreport be admitted as a record of aregularly conducted activity.43 Theexclusions do not apply, however, ifthe record or report is offered by theaccused.______________1 Tex. Crim. Proc. Code Ann. Art. 14.01(a)(Vernon 2006).2 Id at Art. 14.02.


3 Id at Art. 18.01.4 Id at Art. 14.03(a)(1).5 Gerald S. Reamey, Arrests in Texas’s‘Suspicious Places’: A Rule in Search ofReason, 31:3 Tex. Tech L. Rev. 931.6 Johnson v. State, 722 S.W.2d 417 (Tex.Crim. App. 1986) Tex. Crim. Proc. CodeAnn. (Article 14.03(a)(1)).7 Tex. Crim. Proc.Code Ann. Art.14.03(1)(1) (Vernon 2006).8 Op. Tex. Att’y Gen. No. JC-0016 (1999).9 Tex. Trans. Code Ann. § 543.005 (Vernon2006).10 Tex. Crim. Proc. Code Ann. Art. 14.06(Vernon 2006).11 The language of Sec. 38.10 still posesserious problems for citations that areunsigned or that do not contain a promiseto appear. The statute provides in (a) “Aperson lawfully released from custody, withor without bail, on condition that hesubsequently appears commits an offenseif he intentionally or knowingly fails toappear in accordance with the terms of hisrelease.” Tex. Pen. Code Ann. § 38.10(a)(Vernon 2006).12 Berrett, 152 S.W.3d 600 (Tex. App.—Houston 1st 2005).13 Tex. Crim. Proc. Code Ann. Art. 45.018& 23.04 (Vernon 2006).14 Carson, 65 S.W.3d 774, 782 (Tex. App.—Fort Worth 2001). Despite theunauthorized mailing of a citation, thecourt went on to grant the petitioners’request for an expunction on the groundsthat actual submission to an assertion of

authority by appearing at the time and placeindicated on the citation to dispute thecharges against him was a restraint andliberally constituted an arrest for purposesof considering an expunction request.15 Op. Tex. Att’y Gen. No. JC-0317 (2000).16 Gerstein, 420 U.S. 103 (1975).17 Sanders, 543 F. Supp. 694 (1982).18 County of Riverside, 500 U.S. 44 (1991).19 Dix and Dawson, Texas Practice Series §15.04 (West 2006).20 Tex. Crim. Proc. Code Ann. Art.17.033(b) (Vernon 2006).21 State v. Martin, 833 S.W.2d 129 (Tex.Crim. App. 1992).22 See Ryan Kellus Turner, Complaints,Complaints, Complaints: Don’t Let theLanguage of the Law Confuse You, 13:6Municipal Court Recorder 6 (2004).23 Knowles, 525 U.S. 113 (1998).24 U.S. v. Robinson, 414 U.S. 218 (1973).25 Id.26 Berkemer, 468 U.S. 420, 427-428 (1984).27 Id. at 427-428.28 City of Houston, 171 S.W.3d 541(Tex.App.—Houston [14th Dist.] 2005).29 Vasilas, 187 S.W.3d 486 (Tex. Crim. App.2006).30 Huynh, 901 S.W.2d 480, 482 n.3 (Tex.Crim. App. 1995).31 Tex. Crim. Proc. Code Ann. Art. 27.14(d)(Vernon 2006).32 Id.33 Bass v. State, 427 S.W.2d 624 (Tex. Crim.App. 1968).

34 Tex. Crim. Proc. Code Ann. Art. 12.06(Vernon 2006).35 Texas Practice Series § 3.44 (West 2006).See Tex. Crim. Proc. Art. 45.019(c) (Vernon2006): “A complaint filed in municipalcourt must alleged that the offense wascommitted in the territorial limits of themunicipality in which the complaint ismade.”36 Tex. Crim. Proc. Code Ann. Art. 12.02(Vernon 2006).37 Vasquez v. State, 557 S.W.2d 779, 781 (Tex.Crim. App. 1977).38 Huynh, 901 S.W.2d 480 (Tex. Crim. App.1995). The Court’s decision in Huynhbrought about the statutory language thatis now Article 45.019(f), which preventsdefendants from raising defects in thecharging instrument on the day the trial onthe merits commences.39 Ex parte Hoard, 140 S.W. 449 (Tex. Crim.App. 1911).40 See generally Gordon v. State, 801 S.W.2d899 (Tex. Crim. App. 1990).41 State v. Mungia, 119 S.W.3d 814 (Tex.Crim. App. 2003). With no inherentauthority for a trial court to dismiss acharging instrument without consent ofthe State, a court must must gain itsauthority to do so from a constitution,statute, or common law.42 State v. Johnson, 821 S.W.2d 609, 612 n. 2(Tex. Crim. App. 1991).43 Cole v. State, 839 S.W.2d 798, 805-806(Tex. Crim. App. 1990).

Municipal Court Week: November 5-9, 2007TMCEC expresses its appreciation to Representative Burt Solomons for sponsoring H.R. No. 973, declaringNovember 5-9, 2007 and November 3-7, 2008 Municipal Court Week across Texas. A former municipaljudge for the Cities of Carrollton and Flower Mound and a former President of The Texas Municipal CourtsAssociation, Representative Solomons serves the House District 65 which is composed of the cities ofCarrollton, Frisco, Hebron, Lewisville, Plano, The Colony, and a portion of Dallas. Municipal Courts Week is a great time not only to recognize how much municipal courts do, but to share with the public the important role that local courts and their personnel play in the criminal justice system and the larger community. In the past, courts have celebrated the event with local proclamations, courthouse tours, speeches to civic groups, mock trials with school groups, newspaper articles about the court, videos, and employee luncheons and recognitions.

See www.tmcec.com/Court for more ideas and details.


RESOURCES FOR YOUR COURT

The Texas Council on Family Violence(TCFV) and Texas Attorney GeneralGreg Abbott recently released resultsfrom the first-ever statewide survey ondating violence among teens and youngadults. Findings show that three out offour 16- to 24-year-old Texans havepersonally experienced dating violenceor know someone who has.The survey polled more than 900young Texans on their attitudes towardand experiences with dating violencebehaviors, ranging from controllingactions to physical harm. Fifty percentreported having personally experienceddating violence (whether as the target orabuser). Two out of five teens andyoung adults said they’ve experiencedverbal abuse, one out of four reportedphysical violence, and one out of fivereported sexual violence.

To tackle this problem and educateyoung Texans about the characteristicsof healthy relationships, TCFV alsolaunched a public awareness projectcalled “Red Flags.” The project isfunded by the Office of the TexasAttorney General and the Texas Healthand Human Services Commission.Through online and communityoutreach, Red Flags will deliver themessages of “Control Isn’t Love” and“Red Flags: Know When to RaiseThem” to youth in five target cities –Austin, Dallas, Fort Worth, Houston,and San Antonio.The project will reach out to bothmales and females. According to surveyresults, three out of five young Texasfemales and two out of five youngmales have personally experienceddating violence (again, whether as the

target or abuser).

“Dating violence is a pervasiveproblem that affects young Texans ofall ethnic and educational backgrounds.It is imperative that we prevent furtherteens and young adults from havingthese experiences while offering helpand solutions to those who arecurrently in unhealthy or dangeroussituations,” said Texas Attorney GeneralGreg Abbott.

Research found that young Texans aremuch more likely to be scared by orworried about more tangible behaviorslike explosive temper or physical harm.They were more likely to rate thingslike controlling a person’s actions orexhibiting jealousy as making them“nervous” or “uncomfortable.” RedFlags will concentrate most on teachingyouth to listen to their instincts and dealwith the early warning signs of datingviolence – the “red flags” that indicatetrouble – before they escalate intomore severe abuse.

The National Domestic ViolenceHotline, operated by TCFV in itsAustin office, receives the largestpercentage of its calls from 25- to 34-year-olds who are experiencingdomestic violence. However, advocatesare trained to counsel victims on datingviolence and create safety plans on howto leave the relationship, if need be.

“With Red Flags, we hope to reachyoung Texans at a critical period in theirdating lives, helping them learn todistinguish healthy behaviors frommore dangerous ones so they,hopefully, never need to call us,” saidSheryl Cates, Chief Executive Officer

of the Texas Council on FamilyViolence and the National DomesticViolence Hotline. “This is the time tolearn how to make the best choices inrelationships because family andfinancial commitments can later make itharder for people to break free fromviolent relationships.”

In addition to reaching out to currentand potential victims of abuse, the RedFlags project is designed to give youngTexans guidance in having moreconstructive dialogue with friends whomay be experiencing dating violence.Research shows three out of four teensand young adults who’ve personallyexperienced dating violence reporthaving told someone what happened.Friends were most commonly turnedto first, followed by parents orguardians. When asked what they’d doif a peer told them about a datingviolence problem, 42 percent saidthey’d advise them to break up withtheir partner. However, dating partnerscan often turn more violent when arelationship ends.

The Red Flags website,www.knowtheredflags.com, is full ofrelationship quizzes, warning signs,advice, and scenarios designed to guideteens and young adults in discussingdating violence issues and making safeplans for dealing with or leavingunhealthy relationships. The site alsoaims to educate young Texans abouthealthy behaviors like being honest witheach other, trusting each other whenapart, and feeling safe to expressfeelings – which survey respondentsrated as their top three most valuedcharacteristics in a relationship. TCFV

75 Percent of Young Texans Affected by Dating Violence“R“R“R“R“Red Fed Fed Fed Fed Flalalalalags” campaign to highlight eargs” campaign to highlight eargs” campaign to highlight eargs” campaign to highlight eargs” campaign to highlight early wly wly wly wly warning signsarning signsarning signsarning signsarning signs, pr, pr, pr, pr, preeeeevvvvvent furent furent furent furent further incidencether incidencether incidencether incidencether incidence


will direct traffic to the site throughoutreach on MySpace and other onlinechannels, at events, and through youthoutreach with its community partners inthe project’s target cities.

“The survey results, along withqualitative data gathered from youthstatewide, has shown us that youngTexans want very serious, mature, anddetailed information about datingviolence so they can get help and lendhelp. They’ve also indicated that onlineand peer-to-peer methods of receivinginformation are effective given thecomplex subject matter,” said Cates.“Red Flags is designed uniquely forTexas youth, and we’re excited aboutthis step in ultimately making our state akinder and safer place.”

Data for the statewide survey wasconducted on behalf of TCFV byGCI Read-Poland and EquationResearch. All respondents wereunmarried and between the ages of 16

and 24. Respondents were randomlydrawn to reflect a sample representativeof the Texas population. The “RedFlags” brand and project materialswere created by Austin communicationfirms GCI Read-Poland, White HatCreative, and Action Figure._______________

Reprinted with permission from The River, apublication of the Texas Council on FamilyViolence. Used with permission.

Municipal Court Offenses PotentiallyInvolving Family or Dating Violence

The following table outlines Class C misdemeanor offenses that could potentially involve family or dating violence, andshould be examined with due prudence.

Assault: Threatens Bodily Injury § 22.02 (a)(2), Tex. Pen. CodeAssault: Physical Contact § 22.02(a)(3), Tex. Pen. CodeAttempted Assault: Against Sport Participant § 22.01(c)(2), Tex. Pen. CodeAttempted Criminal Trespass: Property, Building, Vehicle § 30.05, Tex. Pen. CodeAttempted Enticing a Child § 25.04, Tex. Pen. CodeAttempted Harassment § 42.07, Tex. Pen. CodeAttempted Indecent Exposure § 21.08, Tex. Pen. CodeChild Under 7 Left in Vehicle § 22.10, Tex. Pen. CodeCriminal Mischief § 28.03, Tex. Pen. CodeDisorderly Conduct § 42.01, Tex. Pen. CodeDisruption of Classes § 37.124, Tex. Educ. CodeDisruption of Transportation § 37.126, Tex. Educ. CodeFailure to Attend School § 25.094, Tex. Educ. CodeFalse Report: Missing Child or Person § 37.081, Tex. Pen. CodeFirearm, Accessible to Child § 46.13, Tex. Pen. CodeObscene Display or Distribution § 43.22, Tex. Pen. CodeParent Contributing to Nonattendance § 25.095, Tex. Educ. CodeReckless Damage or Destruction § 28.04, Tex. Pen. CodeTampering w/Gov’t Record: School Enrollment § 37.10(c)(3), Tex. Pen. Code

About Texas Councilon Family Violence

As the state coalition against domesticviolence, the Texas Council on FamilyViolence has been the voice of themovement against domestic violence inTexas and a national leader in the workto end domestic violence since 1978.TCFV provides public education,

training and technical assistance, andpublic policy advocacy on the issue ofdomestic violence in Texas. As astatewide coalition, TCFV membersinclude domestic violence serviceproviders, criminal justice personnel,and allied professionals. Additionally,TCFV operates the National DomesticViolence Hotline, which is the only toll-free, 24-hour hotline, providing crisisintervention and connecting victims ofdomestic violence to more than 5,000domestic violence service providersacross the nation. TCFV is a nonprofitorganization funded by both privateand public sources.


PURPOSE:To recognize each year a municipal judge and a court support staff member who have made an outstanding contributionto the fair and impartial administration of justice by meeting any one or more of the following standards:• Setting up an exemplary court whose procedures and staff are models for all municipal courts in Texas;• Providing inspiring leadership among municipal judges and court support personnel such that networking and

professionalism has been encouraged and established;• Providing community leadership to ensure the protection of the public’s interest;• Increasing communication and understanding between the public, the municipal courts, and other levels of the

judiciary;• Serving as an outstanding faculty member in the judicial education programs which have strengthened the

competence of the municipal judges and court support personnel.

ELIGIBILITY:Any individual presently serving or having served in the 2006-2007 fiscal year as a municipal judge or as a member of acourt’s support staff (including but not limited to clerks, court administrators, and bailiffs) in the State of Texas mayapply for one of these two awards. Members or materials prepared by members of the TMCA Judicial RecognitionCommittee are ineligible.

JUDGING COMMITTEE:The judging committee will consist of members of the TMCA Annual Meeting Committee (board members andmembers of TMCA appointed by the TMCA president).

Applicants applying for the awards will be judged on the basis of one or more of the following criteria (and all otherrelevant criteria):• Excellence in the administration of municipal court procedures;• Record of outstanding leadership in the community of profession;• Effective use of community resource persons in support of the work of the municipal courts; and/or• Initiative in innovative and cost effective problem solving solutions of issues facing the municipal courts.

ENTRY RULES:1. Nominations must be submitted in triplicate and presented in a plain manila folder or envelope.2. Cover letter should indicate nominee for “Judge” or “Court Support Personnel”.3. Nomination application should also include the following:

• Resume of the nominee (maximum two (2) pages);• Summary of contributions worthy of recognition in improving municipal courts (maximum two (2) pages);• Letters of recommendations or support (maximum five (5) pages); and• Relative evidence like newspaper articles, resolutions, publications, etc.

DEADLINE:Entries must be received no later than July 13, 2007. Send applications to:

TMCA Annual Meeting Committeec/o City of Lubbock Municipal CourtP.O. Box 2000Lubbock, TX 79457Attention: Hon. Robert A. DotyFor inquiries only: (806) 775-2462 or [email protected]

PRESENTATION:The two (2) award winners will be notified by August 10, 2007 and invited to attend the Awards Dinner and Banquet onFriday night, September 14, 2007 during the TMCA Annual Meeting at the Hilton Lincoln Centre in Dallas, Texas.

Texas Municipal Courts Association2007 Judicial Awards for Excellence in the Administration of Justice


Born to Be a CollectorBy Jim Lehman, Collections Specialist, Office of Court Administration

COLLECTIONS CORNER

Is it true that good collectors are born,not made? No. There are principles andguidelines that consistently producepositive results if they are consistentlyapplied. Practice, not genetics, makesperfect. But practice does reveal certainkey characteristics that are generallyassociated with successful collectors.We’ll call them the six P’s of successfulcollectors.

1. Package. What is the appearance ofthe collector? Does he or she present apositive professional look? What facialexpressions and body language arepresent when the collector interactswith a defendant in-person? The oldadage “you only have one shot to makea good first impression” applies here.Successful collectors will present aprofessional, calm, and assertivedemeanor and will remain in this moderegardless of the circumstances.Effective collectors usually look thepart. High-level training exercises forprofessional collectors now includevideo taping collectors at work andallowing them to see themselves as thecustomer sees them. This has proven tobe a very effective training tool.

2. Presentation. How does thecollector sound when addressing thedefendant? Is his/her tone crisp,businesslike, intelligent, confident? Thedelivery determines whether thedefendant takes the collector seriously.Successful collectors practice delivery,everything from greeting to closing.Many high-level training courses forcollectors now also require the collectorto listen to audio tapes of him or herfor self evaluation.

3. Predisposition. Is the collectorcomfortable collecting? Successful

collectors have no problem asking forpayment in full and the request soundsperfectly natural. Effective collectorscan be firm without being insensitive.This cannot happen if the collectorlacks confidence or interest.

4. Persuasion. Is the collectorconvincing? Successful collectors areusually masters of passive persuasion.They can usually use their powers ofreason and suggestion to overcomeobjections or defuse hostility. Effectivecollectors can convince a defendant thatit is in his or her best interest to comply.

5. Persistent. How quickly does thecollector give up or give in? Successfulcollectors are tenacious and rarely giveup easily. That’s not saying they don’tknow when to quit and move on.Effective collectors have a very goodfeel for when to say when. But this willnot occur until every reasonablescenario for resolution has beenexamined and exhausted.

6. Punctual. Is the collector timeconscious? Successful collectors aregenerally extremely time sensitive. Theyhave learned the value of time,especially as it relates to collections.Effective collectors are effective clockmanagers and they keep clear andconcise records of their collectionefforts. Is short, they can tell you who,what, where, and WHEN on everyaccount in their assigned caseload.

One of my favorite sayings is “plansdon’t work, people do”. However, thekey to successful collections begins withsound process. Without a specificprocess new hires have no startingpoint and no destination, they will belost. Establishing concrete steps to

work from will provide them with aroad map. Practicing those steps willlead them to success.

(Jim Lehman is Collections Program Managerfor the Office of Court Administration.

For information about collections education andtraining you may contact him at512/936-0991.)

8th Annual Court CollectionsConference & WorkshopMay 29-31, 2007Marriott Horseshoe Bay Resort.800/452-5330 for hotelreservations.Horseshoe Bay, Texas (near MarbleFalls, Texas). Sponsored by theGovernmental CollectorsAssociation of Texas and the TexasAssociation of Counties. Onlineregistration available atwww.govecat.net. Topics include:An Auditor’s View of Collections, UsingIn-House Computer Resources,The Comptroller’s Side ofCollections, andLegislative Update &Overview.

National Court CollectionsConferenceSeptember 24-26, 2007Golden Nugget HotelLas Vegas, Nevada800/846-5336

Online registration available atwww.govcat.net/Conferences/2007/2007_Natl_conf_register.htm.Agenda to be determined.

Upcoming CollectionsConferences


FROM THE CENTER

TMCEC Bench Book & Forms BookTMCEC staff members will be revising and editing bothThe TMCEC Bench Book and Forms Book over the summerof 2007. If you have suggestions, please call (800.252.3718)or email Ryan Turner ([email protected]). Both will beupdated with recent changes by the 80th Legislature andcase law and the Center would like to also improve on anychecklists or forms that are insufficient or flawed.Suggestions for new forms and checklists are also invited.

CodebooksWatch for a copy of the Texas Criminal and Traffic LawManual in the mail in September. The TMCEC Board ofDirectors voted to send one copy at grant expense to everymunicipal judge in the State. After every legislative session,the TMCEC staff members work with the publisher toinclude statutes used in municipal courts and to improvethe index. If you have suggestions on changes for the newedition, please call or email Lois Wright at TMCEC(800.252.3718 or [email protected])

Court Administrator ProgramTMCEC will offer a court administrators’ program inCorpus on June 11-12 at the Omni Hotel Marina Tower.The program will include sessions on Employment Law andEffective Communication and Conflict Resolution. To register,please use the registration form found on page 19 in thisjournal.

Legislative UpdatesThe TMCEC staff is looking forward again to offering aseries of Legislative Updates in August 2007. These electiveprograms are six-hour in length. They do not count towardmandatory judicial education requirements for judges, butdo offer CLE credit for attorneys and certification creditfor clerks in the certification program. The registration feeis $50, which includes lunch and course materials. There isan additional $50 fee for those attorneys seeking CLEcredit. Participants are responsible for making and payingfor their own hotel reservations. Please register using theregistration form on page 19 of this newsletter.

August 7, 2007 Lubbock Holiday Inn Towers806/763-1200

August 14, 2007 Houston Omni Westside281/556-8338

August 17, 2007 Austin Hyatt Regency512/477-1234

The registration deadlines for the Legislative Updates are inmid-July. Registration, however, is based on a first-come-first served policy, so register early with TMCEC to ensurea seat in the program. Contact the hotel and reserve aroom ASAP, as there are a limited number of $85 nightsleeping rooms rates available at the conference rate.

Note: Clerk certification exams will be offered the daybefore each Legislative Update from 1:00-5:00 p.m.

Summer 2007 First Friday WebinarsLooking for an extra hour of continuing education for CLE or clerk certification? TMCEC will be offering interactive,web-based training programs on the first Friday of each month from 10:30–11:30 a.m. Please register by logging on tohttp://tmcec.premierglobal.com.

Webinars are free of charge to participants, but you will still be charged any applicable local fees for the use of yourInternet. Participants will need a computer, an Internet connection, and a telephone line for toll-free teleconferencing.

Upcoming Webinar Schedule:

June 1, 2007 Juvenile Confessions, Sharon Pruitt, Assistant Attorney General, Office of the Attorney GeneralJuly 6, 2007 Crime Victims, Suzanne McDaniel, Office of the Attorney General


Prosecutor SeminarTMCEC will offer the second of two 12-hour prosecutorprograms on May 23-24, 2007 at the Omni Westside Hotelin Houston. The TMCEC Annual Municipal ProsecutorsConference is the only program in the state designed tospecifically assist such attorneys in obtaining and maintainingprofessional competence. Presentations will focus on ethics,as well as procedural, substantive, and case law. Municipalprosecutors may register for the 12-hour prosecutor’sconference for $250. Housing, two breakfasts, one lunch,and course materials are included in the fee. Municipalprosecutors who do not need housing at the conferencehotel may pay a $100 registration fee. Prosecutors whomust cancel for personal or professional reasons will becharged a $100 cancellation fee if notice of cancellation isnot received five working days prior to the conference. Aregistration fee of $300 (or $150, if no housing is needed)will be charged for non-municipal prosecutors or attorneys.A registration form can be found in the TMCECAcademic Schedule or on page 19 in this journal. Coursematerials may be purchased for $50.

Note: In FY08, there will be an additional fee of $100 forMCLE credit.

Bailiffs and Warrant OfficersCorpus Christi Conference

There will be a 12-hour bailliffs and warrant officersconference June 11-12, 2007 in Corpus Christi at the OmniHotel Marina Tower. Bailiffs, warrant officers, and contractsecurity personnel are encouraged to attend. A four-hourpre-conference will be offered on Sunday, June 10th byNoel Johnson, TMPA, on Legislative Changes. Tentatively,regular session courses are: Force Options, Violence in theCourtroom, Bailiffs 101, Methods of Improving Collections,Warrants: From the Code to the Field, Sovereign Defendants, JuvenileIssues in Municipal Court, Civil Process, Served!, TransportingPrisoners, Fraudulent Documents, and Citations.

The course has been pre-approved for 12 hours ofTCLEOSE continuing education credit. Another fourhours of credit will be available for attending the pre-conference. The fee for attending the conference is $50 andincludes three meals and housing accommodations for thetwo program nights at the Omni. To register, please use theregistration form found on page 19 in this journal.

Translated FormsGo to TMCEC website! TMCEC has posted revised forms that have been translated into Spanish. These may bedownloaded from the TMCEC website and adapted for use in your court.

Does this issue of The Recorder look different to you? You probably noticed a modified masthead and a uniform formatfor referencing the law. Moreover, after conferring with many courts regarding the important archival value of TheRecorder, we will now refer to the publication as a journal rather than a newsletter. All past issues of The Recorder are stillavailable online at www.tmcec.com free of charge.

Along with these modifications, TMCEC adopted a new style manual: ALWD Citation Manual: A Professional System ofCitation. Copies may be obtained by calling Aspen Publishers at 800/638-8437 or at www.aspenpublishers.com. TheALWD manual was selected over other citation manuals for its clarity, brevity and the resultant ease with which ourreaders will be able to effectively locate cited sources within this work.

In adopting this new citation manual, you may see some new symbols in this and subsequent editions of The Recorder:

§ - Section §§ - Consecutive Sections¶ - Paragraph ¶¶ - Consecutive Paragraphs& - Ampersand (and)

Questions? Comments? As always, we welcome your input regarding any changes in the form or substance of our workproduct. Additionally, TMCEC encourages members of its constituency to submit articles on effective municipal courtprocedures and practices, pertinent issues involving municipal courts, or letters that raise noted concerns experienced byour readership. Please submit articles and letters to TMCEC, 1609 Shoal Creek Blvd., Suite 302, Austin, Texas 78701 or [email protected], Subject: Submission to The Recorder. We look forward to hearing from you.


Conference Date(s) City Hotel Information

1-day Clinic: Juveniles Now Adults May 16, 2007 Austin Hyatt Town Lake Austin208 Barton Springs

12-Hour Prosecutors May 23-24, 2007 Houston Omni Houston Hotel at Westside13210 Katy Freeway

8-Hour Court Interpreters May 23, 2007 Houston Omni Houston Hotel at Westside13210 Katy Freeway

1-day Clinic: Bond Forfeitures May 30, 2007 Austin Hyatt Town Lake Austin208 Barton Springs12-Hour

Bailiffs/Warrant Officers June 11-12, 2007 Corpus Christi Omni Corpus Christi Hotel MarinaTower, 707 North Shoreline

12-Hour Court Administrators June 13-14, 2007 Corpus Christi Omni Corpus Christi Hotel MarinaTower, 707 North Shoreline

1-day Clinic: Magistrate Duties June 20, 2007 Austin Hyatt Town Lake Austin208 Barton Springs

12-Hour Regional Judges and Clerks June 27-28, 2007 Odessa MCM Elegante5200 E. University

1-day Clinic: Warrants, Summonses, July 11, 2007 Austin To be determinedCapiases, and Capias Pro Fines32-Hour New Judges and Clerks July 16-20, 2007 Austin Omni Hotel Southpark

4140 Governor’s Row2007 Legislative Updates: August 7, 2007 Lubbock Holiday Inn Hotel & Towers

801 Avenue QAugust 14, 2007 Houston Omni Westside

13210 Katy FreewayAugust 17, 2007 Austin Omni Southpark

4140 Governor’s Row

2006-2007 TMCEC Academic Schedule At-A-Glance

Family Code. This article discusses themechanics of child support bonds sothat you will have a betterunderstanding of why municipaljudges acting as magistrates may notchange or set bond in these cases.Under the statute, that authority liesonly with the court that has continuing,exclusive jurisdiction of the case.

Section 25.05 of the Texas PenalCode creates a criminal offense if anindividual intentionally or knowinglyfails to provide support for theindividual’s child younger than 18years of age, or for the individual’schild who is the subject of a court

order requiring the individual tosupport the child.1 Such an offense is astate jail felony.2 Chapter 157 of theTexas Family Code provides themechanism for enforcing childsupport orders against individuals(child support offenders are referredto as “Respondents” in the FamilyCode).3

Enforcing Child Support Orders

A motion for enforcement of a childsupport order is filed to enforce afinal order for child support in thecourt of continuing, exclusivejurisdiction.4 Upon the filing of such amotion, the court sets a date, time, andplace for a hearing so that the

Respondent may personally appearand respond on the motion.5 If aRespondent fails to appear for thehearing, the court may not hold theRespondent in contempt but may, onproper proof, grant a defaultjudgment for the relief sought andissue a capias for the arrest of theRespondent.6 If the court orders theissuance of a capias, the court mustalso set an appearance bond orsecurity, payable to the obligee (theperson entitled to receive childsupport on behalf of the children) orto a person designated by the court ina reasonable amount.7 An appearancebond or security in the amount of

Child Support continued from page 4

Child Support continued on page 18


TMCEC presentsOne-Day Clinic

TMCEC is offering four one-day clinics with participation limited to the first 75 municipal judge, clerks, or prosecutorswho register. There is no registration fee and lunch will be provided. The participant or city pays for travel and housing. Toregister, complete this form and fax it to TMCEC at 512/435-6118.

Time: 10:00 – 3:30 p.m. (lunch provided at no charge)

Wednesday, May 16 Juvenile Now Adult*Wednesday, May 30 Bond Forfeitures*Wednesday, June 20 Magistrate Duties*Wednesday, July 11 Warrants, Summonses, Capiases, and Capias Pro Fines

*Place: Hyatt Town Lake, Austin, Texas

One-day clinics do NOT fulfill the mandatory requirements for judicial education for judges nor do they offer TCLEOSEcredit. Participation DOES count towards continuing education for the clerk’s certification program and has been ap-proved for MCLE credit by the State Bar of Texas.

ONE-DAY CLINIC REGISTRATION FORM

Last Name: ___________________________________ First Name:___________________________ MI:____

Municipal Court of: ________________________________________________________________________

Mailing Address:______________________________ City:___________________ Zip:__________________

Office Telephone #: _________________________ Court #: _______________ FAX: ___________________

Email:_________________________________________ _________________________________________

Title: ___ Judge ___ Court Administrator ___ Clerk ___ Prosecutor

___ Other: _____________________________________________

I certify that I am currently serving as municipal judge, city prosecutor or court support personnel in the State of Texas.

______________________________________________________________________________________Participant Signature Date

Texas Municipal Courts Education Center1609 Shoal Creek Blvd., Suite 302, Austin, Texas 78701 • Telephone: 800/252-3718 • Fax: 512/435-6118

Municipal judges acting as magistrateshave no statutory authority to changethis amount. For more informationregarding child support enforcementin Texas, visit the Texas AttorneyGeneral’s website at:www.oag.state.tx.us/AG_Publications/txts/crimnonsup.

_______________

1 Tex. Penal Code § 25.05(a).2 Id. at 25.05(f).3 While this article expressly addresses theissue of child support magistration, thesame procedures apply to final orders forconservatorship, possession of or access toa child, or other provisions of a final order

Child Support continued from page 17

as intended by Chapters 157 and 158 of theTexas Family Code.4 Tex. Fam. Code § 157.0015 Id. at 157.0616 Tex. Fam. Code § 157.0667 Id. 157.1018 Id.


TEXAS MUNICIPAL COURTS EDUCATION CENTER FY07 REGISTRATION FORM

Conference Date: _____________________________ Conference Site: ____________________________Check one: Non-attorney Judge ($50 fee) Clerk ($50 fee) Prosecutor ($250 fee)

Attorney Judge not seeking CLE credit ($50 fee) Court Administrator ($50 fee) Prosecutor not requiring a room ($100 fee) Attorney Judge seeking CLE credit ($150 fee) Assessment Clinic ($100 fee) Bailiff/Warrant Officer* ($50 fee)

TMCEC computer data is updated from the information you provide. Please print legibly and fill out form completely.(Please print legibly): Last Name: __________________________________ First Name : _____________________________ MI: __________Names also known by: ________________________________________________________________________ Female/Male: ____________Position held: _______________________________________________________________________________________________________Date appointed/Hired/Elected:____________ Years experience: ________ Emergency contact:_____________________________________

HOUSING INFORMATION

TMCEC will make all hotel reservations from the information you provide on this form. TMCEC will pay for a single occupancy roomat all seminars: four nights at the 32-hour seminars, three nights at the 24-hour seminars/assessment clinics and two nights at the 12-hourseminars. To share with another seminar participant, you must indicate that person’s name on this form.

I need a private, single-occupancy room. I need a room shared with a seminar participant. [Please indicate roommate by entering seminar participant’s name:

________________________________________________________________ (Room will have 2 double beds.)] I need a private double-occupancy room, but I’ll be sharing with a guest. [I will pay additional cost, if any, per night]

I will require: 1 king bed 2 double beds I do not need a room at the seminar.

How will you be traveling to seminar? Driving Flying Arrival date: _______________________________________________________ Smoker Non-Smoker

Municipal Court of: _______________________________________________________ Email Address:Court Mailing Address: __________________________________________ City: ____________________________ Zip: ________________Office Telephone #: __________________________________________ Court #: _____________________ FAX: _____________________Primary City Served: __________________________________________ Other Cities Served: ______________________________________STATUS (Check all that apply):

Full Time Part Time Attorney Non-Attorney Presiding Judge Associate/Alternate Judge Justice of the Peace Mayor (ex officio Judge) Court Administrator Court Clerk Deputy Court Clerk Other: Bailiff/Warrant Officer* Prosecutor

*Bailiffs/Warrant Officers: Municipal judge’s signature required to attend Bailiff/Warrant Officer programs.Judge’s Signature: _________________________________________________________________ Date: _______________________Municipal Court of: _______________________________________________________________________________________________

I certify that I am currently serving as a municipal judge, prosecutor or court support personnel in the State of Texas. I agree that I will beresponsible for any costs incurred if I do not cancel five (5) working days prior to the conference. Participants in the Assessment Clinics mustcancel in writing two weeks prior to the seminar to receive refund. I will cancel by calling the Center. If I must cancel on the day before theseminar due to an emergency, I will call the TMCEC registration desk at the conference site. If I do not attend the program, TMCEC reserves theright to invoice me or my city for meal expenses, course materials and, if applicable, housing ($85 plus tax per night). I understand that I will beresponsible for the housing expense if I do not cancel or use my room. If I have requested a room, I certify that I live at least 30 miles or 30minutes driving time from the conference site. Payment is due with registration form. Registration shall be confirmed upon receipt ofregistration form and payment.

Participant Signature ______________________________________________________________ Date ______________________________

PAYMENT INFORMATION Check Enclosed (Make checks payable to TMCEC.) Credit Card (Complete the following; $2.00 will be added for each registration made with credit card payment.)

Credit Card Registration: (Please indicate clearly if combining registration forms with a single payment.)Credit Card Number Expiration Date Verification Number

Credit card type: ________________________________ _____________ (found on back of card) MasterCard Name as it appears on card (print clearly): _____________________________________________ _______________ Visa Authorized Signature: _____________________________________________

Please return completed form with payment to TMCEC at 1609 Shoal Creek Boulevard, Suite 302, Austin, TX 78701.Fax registration forms with credit card information to 512/435-6118.


Please check the program you would like to attend and return completed form with theregistration fee to TMCEC. For credit card payments, please add $2 for each registration. LUBBOCK HOUSTON AUSTIN

August 7, 2007 August 14, 2007 August 17, 2007Holiday Inn Towers Omni Houston Westside Omni Hotel Southpark806.763.1200 281.558.8338 512.448.2222If you need lodging, you will have to make your own reservation and cover the cost withthe hotel.TMCEC will send you hotel information upon receipt of your registration form and the$50 fee ($100 for defense lawyers & council members). Please add $2 for all credit cardpayments.

Course lasts from 9:00 a.m. to 4:00 p.m. with an optional Q&A from 4:00-5:00 p.m. Up to six hours credit can bereceived for MCLE with an additional payment of $50.

Legislative Update Registration Form

LUBBOCK HOUSTON AUSTIN Name (please print legibly): _____________________________

Street: _________________________________ City: _____________________________ Zip: ______________________

Office Telephone #: _____________________ Court #: ____________________________ FAX: _____________________

Primary City Served: _____________________ Other Cities Served: _______________________________________________Email Address: _______________________________________________________________________________________

Check all that apply: Full Time Part Time Attorney** Non-Attorney Prosecutor Defense Lawyer ($100)** Presiding Judge Associate/Alternate Judge Court Administrator Mayor & Council ($100)** Court Clerk Deputy Court Clerk Other ($100): ____________________________________ Bailiff/Warrant Officer

** Please add $50 if requesting MCLE credit.

I certify that I am currently serving as a municipal judge, city prosecutor, or court support personnel in the State of Texas. I understand that I will be responsible formaking and paying for my own hotel reservation. Payment is required for this program; payment is due with this form. The registration fee is refundable if the Centeris notified of cancellation in writing 10 days prior to the seminar.____________________________________________________________ ______________________________Participant Signature Date

PAYMENT INFORMATION: ($2.00 is added for each registration with credit card payment.) $50 Check for Registration Fee Enclosed $52 Credit Card (Complete the following.)For participants who do not work in a municipal court: $100 Check for Registration Fee Enclosed

$102 Credit Card payment for Registration Fee Enclosed (Complete the following.)** $50 Check for MCLE Fee Enclosed** $50 Credit Card payment for MCLE Fee Enclosed (Complete the following.)

Credit Card Registration: (Please indicate clearly if combining registration forms with a single payment.)

Credit card type: Credit Card Number Expiration Date Verification Number (found on back of card) MasterCard _________________________________ ____________ _____________________ Visa

Name as it appears on card (print clearly): _______________________________________

Authorized Signature _____________________________________________________

Please return completed form with payment to TMCEC at 1609 Shoal Creek Boulevard, Suite 302, Austin, TX 78701.Fax registration forms with credit card information to 512.435.6118.

The Legislative Update


CLERK’S CORNER

Who Can Accept Payments from Defendants?by Margaret Robbins, Program Director, TMCEC

Who can accept payment of fines andcosts from defendants? You areprobably thinking, this is an easyanswer—the court. You are right,except in reality it becomes a harderquestion to answer. To address theissue, you have to consider themeaning of the word “accept” andwhat happens when the court acceptsthe payment.

One of the definitions of “accept” inWebster’s Encyclopedic UnabridgedDictionary of the English Language, 1996Edition, is “to receive with approval.”According to Black’s Law Dictionary,Fifth Edition, “accept” means “toreceive with approval or satisfactionor to receive with intent to retain.”

Article 27.14(c) of the Code ofCriminal Procedure provides that“…payment of the fine or an amountaccepted [emphasis added] by the courtconstitutes a finding of guilty in opencourt as though a plea of nolo contenderehad been entered by the defendantand constitutes a waiver of a jury trialin writing.”

Who in the court may “accept” thepayment from defendants? It is onlythe judge. It is only the judge who hasthe discretion to decide whether thepayment offered by the defendantsatisfies the judgment. Because it isonly the judge who may make thedecision whether to approve thepayment and whether to retain thepayment for satisfaction of the fineeven though the amount may not bethe same as the amount listed on thesuggested minimum fine schedule.The clerk must present all finepayments to the judge to “accept.”

The clerk’s role as custodian of the

court records is to collect and processthe payment and prepare the judgmentfor the judge’s signature if thejudgment has not already been signed.A judgment is a court’s finaldetermination of the defendant’sobligation in the case against thedefendant. It is a written record of thedefendant’s plea, the verdict, findings,the adjudication, and acquittal or orderto pay the fine and costs.

Before clerks collect money, judgesmust set the guidelines for thecollection of the fines and costs. Theguidelines include how to processpayment plans for defendants who areunable to pay the total amount ofordered fines and costs. Time paymentplans become part of judgments.Article 45.041(b) of the Code ofCriminal Procedure is the municipalcourt’s judgment statute regardingconvictions. It requires payment of afine and costs and provides the judgeauthority to grant extensions and timepayments. Judges may also requiredefendants who have defaulted ontheir judgments to discharge the fineand court costs by performingcommunity service under Article45.049 of the Code of CriminalProcedure.

Many courts use application forms forextensions, time payments, andcommunity service. Clerks havedefendants complete the forms andswear to the information. Judges thendo indigent hearings to determine thedefendant’s ability to pay.

What does process mean? It meansthat the clerk:

• collects the fine money (fine set byjudge);

• prepares the receipt or generates itfrom the computer;

• notes the receipts in the docketand on the case file;

• prepares the judgment;

• after the judgment is signed, notesthe judgment in the docket;

• deposits the money;

• properly allocates the court costs;

• has defendants completeapplications for time payments,extensions, or community service;

• monitors the time payments andadds the time payment fee whenapplicable if a time payment hasbeen granted by the judge;

• monitors community service; and

• brings the case to the attention ofthe judge if the defendant defaultsin payment or fails to completecommunity service and the judgeneeds to decide whether to issue acapias pro fine to enforce thejudgment.

What happens if a city contracts withan outside vendor to collect unpaidcriminal judgments or find defendantswho have failed to appear? Can thecity allow the vendor to collectpayments from defendants?

The city has authority to contract withoutside vendors under Article103.0031 of the Code of CriminalProcedure. The city should not,however, contract away the judge’sdiscretion regarding the “acceptance”of payments. Judicial discretion, whichis the judge’s authority to make choicesgoverned by the rule of law, must betaken into account when contracting


Municipal Traffic Safety Initiative:News You Can Use

with an outside vendor on courtissues. The city must keep in mind thatthis is not like collecting a utility bill.Courts deal with people’s rights.Vendors are hired by the city torepresent the city, not the defendant.

Defendants who failed to appear havenot made an appearance before thecourt and still have a right to a jurytrial. Because payment of the fine oran amount accepted by the court isregarded as the defendant entering aplea of nolo contendere and a writtenwaiver of jury trial, the vendor maynot collect money from the defendantand present the payment to the court.This gives the appearance that thevendor is representing the defendantby offering the payment to the courton behalf of the defendant. Hence, all

letters from vendors to defendantswho have failed to appear must directthe defendant to contact the court.

Defendants who have defaulted ontheir payments have already pled, andall that is required is the payment ofthe fine and/or costs. Should thepayment be made directly to thecourt? In this situation, the vendorcould collect the money if the totalamount owed is paid. If thedefendant needs a payment plan, thedefendant must come to the court.Only the judge has the authority togrant extensions and time payments.

Even though defendants fail to appearor fail to pay, they still have rights.Judges are there to ensure the rightsof defendants are not trampled.

Therefore, the better practice is for thecourt to collect all the money andwork with the defendant to determinethe best manner for the defendant todischarge the fine and costs.

Who ensures that the court processesmaintain an orderly flow; that thepaperwork is properly maintained andsecure; and that the money is timelyand appropriately accounted for,including the vendor’s share, the state’sshare and the city’s share? It is the clerkwho is the custodian of the courtrecords.

As you can now see, the question ofwho can “accept” payments is ananswer that involves being educatedabout the authority of the judge andthe responsibilities of the clerk.

Progress! Motor-Vehicle Deaths Down 2% in First Three Months of 2007Motor-vehicle deaths for January through March of 2007 totaled 9,670. This figure is down 2% from the corresponding3-month period in 2006. The January to March figure for 2007 was less than 0.5% lower than the 2005 figure. The 3-month total for 2006 was 9,870, a 2% increase from 2005. The 2005 figure was 3% lower than 2004. The estimatedannual mileage death rate is 1.5 deaths per 100 million vehicle miles traveled, unchanged from 2006.

Disabling motor-vehicle injuries for the first three months of 2007 are estimated to be about 503,000, a 6% decreasefrom 2006.

The estimated cost of motor-vehicle deaths, injuries, and property damage through March was $52.2 billion, a 2%decrease from 2006. The costs include wage and productivity losses, medical expenses, administrative expenses, employercosts, and property damage.

Source: Statistics Department, National Safety Council, 1121 Spring Lake Drive, Itasca, Illinois 60143-3201,[email protected].

Texas Transportation Forum

In our accelerated world, getting from point A to point B quickly has never been more essential. Unfortunately, it hasrarely been more difficult. An efficient transportation network is the lifeblood of economies and communities acrossTexas and the nation. At the second annual Texas Transportation Forum, July 18-20, 2007 in Austin, Texas, local, regional,and state leaders will join national experts to discuss ways to “Keep Texas Moving.”

The Forum is sponsored by the Texas Department of Transportation, the Associated General Contractors of Texas, theTexas Good Roads Transportation Association and the Texas Transportation Institute. It will be held at the Hilton Austin.Find out more at www.texastransportationforum.com.


Traffic Safety Calendar of EventsDate Event Sponsor

May 21 - June 3, 2007 “Click It or Ticket” National NHTSA www.nhtsa.govEnforcement Mobilization: Occupation Protection www.buckleup.org

June 24 - July 7, 2007 Fourth of July: Impaired Driving NHTSA www.nhtsa.gov

July 18, 2007 Ride to Work Day RTW www.ridetowork.org

July 18-20, 2007 Texas Transportation Forum - Austin Hilton TxDOT www.dot.state.tx.us

August 4-11, 2007 National Stop on Red Week Federal Highway Administrationwww.fhwa.dot.gov

August 15-17, 2007 Save a Life Summit TxDOT www.dot.state.tx.usCrowne Plaza, San Antonio

Aug 15 - Sep 3, 2007 Impaired Driving National Enforcement NHTSA www.nhtsa.govCrackdown (Drunk driving. Over the limit.Under arrest.)

October Walk to School Month Partnership for a Walkable Americawww.walktoschool.org

October 3, 2007 Walk to School Day Partnership for a Walkable Americawww.walktoschool.org

October 26-31, 2007 Halloween: Impaired Driving (Buzzed driving NHTSA www.nhtsa.govis drunk driving.)

November 12-25, 2007 Thanksgiving Weekend Travel: Occupant Protection NHTSA www.nhtsa.gov(Buckle up America. Every trip).

Thanksgiving - Tie One on for Safety Campaign MADD www.madd.orgNew Year’s Eve

December National Drunk & Drugged Driving Prevention National Commission Against DrunkMonth (3D Month) Driving (NCADD)

December 1-14, 2007 Holiday Season: Impaired Driving NHTSA www.nhtsa.gov(Buzzed driving is drunk driving.)

December 15-31, 2007 Holiday Season: Impaired Driving (Drunk driving: NHTSA www.nhtsa.govOver the limit. Under arrest.)

April 13-15, 2008 Lifesavers Conference Lifesavers www.lifesaversconference.orgOregon Convention Center – Portland, Oregon

March 29-31, 2009 Lifesavers Conference Lifesavers www.lifesaversconference.orgGaylord Opryland – Nashville, Tennessee

Click It or TicketFrom May 21-June 3, 2007, law enforcement officers across the country will enforce seat belt laws as a part of the “ClickIt or Ticket” Mobilization. Law enforcement’s goal is not to write tickets but to get everyone buckled up, especially teendrivers and their passengers. Remind your employees and encourage them and their families to buckle up — every trip,every time, day and night.

There is a free, online planner and materials at www.nhtsa/link/CIOT.gov.


Enhances theimage of theprofessionalcourt clerk

Demonstratesyour court’scommitment tothe judicialsystem

Improves theskills andknowledge of theclerksparticipating

Streamlines theoperations ofyour court

Prepares clerksfor the greateron-the-jobresponsibility

Establishesprofessionalcredentials

Reflects yourclerks’achievements

Promotesprofessionalrecognition frompeers

Builds self-esteem

Improvescareeropportunitiesandadvancements

1098

7654

3

2

1

TEXAS MUNICIPAL COURTSEDUCATION CENTER

1609 SHOAL CREEK BLVD., SUITE 302AUSTIN, TX 78701www.tmcec.com

TMCEC MISSIONSTATEMENT

To provide high quality judicialeducation, technical assistanceand the necessary resource ma-terial to assist municipal courtjudges, court support personneland prosecutors in obtaining andmaintaining professional compe-tence.

Change Service Requested

Presorted StandardU.S. Postage

PAIDAustin, Texas

Permit No. 114

10 Reasons to Participate in theCourt Clerk Certification Program

_________________

Sponsored by the Texas Court Clerks Association, in cooperation with the Texas Municipal Courts Association, TexasMunicipal Courts Education Center, and Texas State University - San Marcos.

For more information, visit www.texascourtclerks.org (TCCA) or www.tmcec.com (TMCEC) or call Allison Attal,Program Assistant, at 800/252-3718.

Volume 16 MAY 2007 No. 3 Recorder/2007/NL_0507.pdf · • Elaine Coffman, Athens • Regina...

Documents

Transcript of Volume 16 MAY 2007 No. 3 Recorder/2007/NL_0507.pdf · • Elaine Coffman, Athens • Regina...