civil enforcement - tmcec
TRANSCRIPT
FUNDED BY A GRANT FROM THE
TEXAS COURT OF CRIMINAL APPEALS
TEXAS MUNICIPAL COURTS
EDUCATION CENTER
2210 HANCOCK DRIVE, AUSTIN, TEXAS 78756
TELEPHONE 512.320.8274
1.800.252.3718
FAX 512.435.6118
TMCEC IS A PROJECT OF THE TEXAS MUNICIPAL COURTS ASSOCIATION
Civil Enforcement
Presented by
Andy Quittner, Prosecutor, City of Seguin
Participants in the session will cover the basics of civil enforcement, with an in depth look at Chapter 43 of the Code
of Criminal Procedure. Participants will explore how to enforce judgments on cases handled in municipal courts that
are not criminal as well as explain what to do when other enforcement options have failed.
By the end of the session, participants will be able to:
1. Describe the authority in Chapter 45 of the Code of Criminal Procedure to utilize the civil collection of fines
after judgment;
2. Discuss the methods of collection for fines and costs that cities must prescribe by ordinance; and
3. Contrast an abstract of judgment from a writ of execution.
Time: 1 hour CLE
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Collecting Criminal Fines Through Civil EnforcementPRESENTATION – 2018 -2019ANDREW QUITTNERCITY ATTORNEY660 S. STATE HWY 46SEGUIN, TX [email protected]
What we are NOT going to talk about:
Initial decisions to proceed civilly vs. criminally (this is a CODE summit after all)
JuvenilesSuperhero Wardrobes
I said NO CAPES darling
Now go back to work… you’re bothering me
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What we ARE going to talk about:Already have a judgment
(civil or criminal)Judgement is finalDefendant DefaultsHow do you collect?
Four separate aspects to keep in mind
Judicial power over the PERSON (mainly criminal)
Judicial power over PROPERTY (Mainly talking about property today)
Municipal Court PowerCity’s Power to Collect
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Fine and Costs
Art. 45.047. CIVIL COLLECTION OF FINES AFTER JUDGMENT. = final judgment, defendant defaults, civil collection.
Makes collection of criminal and civil judgments (almost) the same at this point.
Civil Collections of Property
City OrdinanceAbstract of JudgmentWrit of ExecutionLots more but these work well for cities
Meet Michael Ironfoot
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Colorful History with City of Little Pockets5 unpaid speeding tickets (totaling
$1,500.00 including court costs)7 Tree Ordinance violations (totaling
$2,200.00)5 Ordinance violations regarding
having a junkyard in his backyard (totaling $2,750.00 in fines and court costs)
How does the “City” Collect? First = collection of fines and costs in criminal
matters are collected by the State of Texas, by and through the municipal prosecutor.
The City is not a proper party to a criminal collection, the state is.
Ordinance civil violations are brought by the City, so the City is a proper party to collection.
Collection OrdinancesCity can create limited
collection ordinancesTex. Crim. Proc. Code
Ann. § 45.203 (West 2017).
Ex. No Permits or Licenses
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Abstract of JudgmentMeet Stompy Ironfoot - dadStompy had $5,000.00 in
ordinance violationsAn Abstract of Judgment
interfered with transfer of property, so he came in and paid
Abstract = lien on real property
Abstract of Judgment In Texas, no lien is
created by the rendition of a judgment.
To perfect a judgment lien, you must first obtain an abstract of judgment.
Cont…
However, the judgment lien is not enforceable against exempt real property of the judgment debtor.
Chapter 52 of the Texas Property Code sets forth the requirements necessary to create a valid judgment lien.
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Cheap way to collectUpon request, the clerk of the court will
prepare the abstract of judgment.Alternatively, the attorney may prepare his
or her own abstract of judgment. Technically the judge can also sign the
abstract, but the City attorney/prosecutor should first request it.
Tex. Prop. Code sec. 52.002.
For criminal collection, makes sure you list the entitled party as the State of Texas by and through municipal prosecutor.
For civil ,make sure you list the City.
Abstract of Judgment constitutes a lien on and attaches to any real property of the Defendant (other than exempt property).
Tex. Prop. Code Ann. § 52.001
It is not a lien, even if filed, if the Defendant posted a bond or security for appeal. But that can be overruled if certain findings are made by the judge. Tex. Prop. Code Ann. §52.0011 (West)
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If they have real property, attach a lien. They cannot sell or transfer the property until the lien is satisfied.
This only works if they have non-exempt real property!
Also, make SURE you have the right Party (i.e. City or State of Texas by and through municipal prosecutor).
Dormancy – Keep Lien ALIVE!!!Abstract of judgment is good for ten (10) years. Tex.
Prop. Code Ann. § 52.006 (West 2015)(one renewal)
If no writ of execution is issued within ten (10) years after rendition of the judgment. Tex. Civ. Prac. & Rem. Code § 34.001 (West 2015)
Thus, it is essential to keep the judgment lien alive by execution within ten (10) years after the rendition of judgment.
Writ of ExecutionA Writ of Execution orders a sheriff or
other authorized person to seize real property, sell it, pay off judgment.
This is the taking of non-exempt property (all kinds)
If the Defendant does not have land, then take other stuff.
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ComplicationsActual collection can start to
become complicatedMany rules which apply to civil
creditors do not apply against the City
But involvement of municipal court is required in order to collect
Michael has no land, lives in an apartment, has no apparent job
Court Procedures -Wrinkle A judgment creditor is entitled to aid from a court of
appropriate jurisdiction through injunction or other means in order to reach property, including present or future rights to property.
Tex. Civ. Prac. & Rem. Code Ann. § 31.002 (West 2015)
However, Tex. Civ. Prac. & Rem. Code 621 (Enforcement of Judgments) applies only to District, County, and Justice Courts.)
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But again, CCP sec. 45.047 states the judge may execute enforcement in the same manner as a civil suit
Tex. Gov’t Code sec. 21.001 states all courts have inherent power to enforce its lawful orders, including authority to issue the writs and orders necessary to aid its judgments.
Know your specific situation
Ordinance v State lawCriminal v CivilAdministrative order v municipal
orderCourt of Record v Non-Record
Court
Writ of Execution - GenerallyCourt issues a writ (your muni ct)Provides writ to local sheriff or
constableSheriff/constable goes to
Defendant and will either seize non-exempt property or collect payment
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Exempt Property is Weird§42.002 – Personal Property Exemptions (Family
$100k; Single $50k) Lots of specific items are listed as exempt 7. Two firearms.. 9. A two-wheeled, three-wheeled, or four-wheeled motor
vehicle for each member of the family or single adult who holds a driver’s license…
10(A). Two horses, mules, or donkeys.. 10(B). 12 head of cattle…
CPRC 31.0025: cannot attach a debtor’s wages
Practical tip: Check with local Sheriff and/or Constable
Sheriffs and Constables are charged with executing any writs for seizure of property. Most have their own procedures for doing so. Check with them.
For explanations of general process, check with Sheriff’s Association of Texas for examples. Let them to their jobs.
Michael has no land, but has a junkyard with 6 cars in various stages
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City of Little Pocket’s prosecutor/city attorney requested writs of execution
Writs issuedSheriff demanded payment and
when Michael was arrested for striking an officer, Sheriff seized 4 of 6 cars (2 were exempt)
Put cars up for sale. Within 4 months provided payment to City.
Extra ToolsDepending on individual
situation, prosecution team decides best course
These are extra tools to use
The End
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CIVIL COLLECTION OF CRIMINAL FINES IN MUNICIPAL
COURT?
Andrew QuittnerCity Attorney
660 S. State Hwy 46 Seguin, TX 78155
Page 2 of 5
I. Intro
Congratulations! As the municipal
judge you presided over a vicious battle
between adversaries in a criminal case. The
State of Texas was victorious in getting a
guilty conviction on the defendant in your
court. The battle was long fought, and the
jury issued the maximum fine of $2,000 for
the specific offense. However, the battle is
not over. The City/State still needs the
defendant to pay the fine. So, how they go
about getting that done and what is the role of
the court?
II. What We are NOT Talking
About
Municipal courts have a variety of
tools enabling them to collect fines and fees.
Additionally, the hosting City has further
tools for collection. Whether it is the court or
the City performing the collection will
depend on the tools to use.
The last legislative session brought
about various changes to the way a court
collects on fines and fees. This article will
touch on them, but primarily, the focus will
be on some of the tools the City has for
collection. This article will not discuss, in
much detail, collection efforts against
indigent individuals or those with no ability
to immediately pay a judgment. The focus of
this article is on collecting from those who
have the means to pay, but simply refuse. Or,
when a judgment is obtained through a civil
abatement or statutory process and needs to
be collected, either against the owner or
against the property.
III. Municipal Court Collection
Tools
Under the Texas Code of Criminal
Procedure art. 45.041:
(a) The judgment and sentence, in
case of conviction in a criminal action
before a justice of the peace or
municipal court judge, shall be that
the defendant pays the amount of the
fine and costs to the state. Tex. Crim.
Proc. Code Ann. § 45.041 (West
2017).
The procedures to follow in assessing
and collecting a fine and court costs were
altered by H.B. 1913 in the by Acts 2017,
85th Leg., Ch. 977 (H.B. 351), § 11.
However, primarily, the changes simply
mandate notice to the defendant, an inquiry if
they have the ability to pay, court monitored
payment methods, and the ability to reduce
the fine or waive the courts costs if certain
determinations are made. Since these
methods are employed primarily when a
defendant does not have the ability to pay
right away, they are not the focus.
IV. City Powers
The governing body of each
municipality shall by ordinance prescribe
rules, not inconsistent with any law of this
state, as may be proper to enforce the
collection of fines imposed by a municipal
court. Tex. Crim. Proc. Code Ann. § 45.203
(West 2017).
This provides any city, general law or
home rule, the ability to pass certain
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ordinances for procedural collection
methods. Such methods are in addition to, but
may not be inconsistent with, state law
collection efforts. An example of such an
ordinance would be one prohibiting issuance
of permits and licenses (such as building
permits or pet licenses) from the City to the
defendant if any judgment debt is owed.
However, the article also prohibits the
City from imposing certain collection
expenses as additional costs onto criminal
judgments.
Additionally, (and this is the big gun
for cities) a city may collect any judgment
through the normal civil process of
collections. Tex. Crim. Proc. Code Ann.
§45.047 (West 2017). However, in order to
utilize this provision, the defendant must first
default on the judgment. Id.
Therefore, the defendant must be
convicted. The municipal court must then
follow the procedures articulated in Tex.
Crim. Proc. Code art. 45.041, be given time
to pay by the judge as part of the judgment,
then fail to comply. Under this procedure, the
defendant would have already been
determined to have the ability to pay within
the time period specified by the judge after an
inquiry. By defaulting after that
determination, the defendant opens him/her-
self up to civil collection efforts.
V. Civil Collection Tools
Entire treatises are written on the
proper way to collect on a civil judgment. As
a result, this article will not address all of the
means and methods available. However, as a
general reference, the primary tools and their
statutory authorizations are as follows:
A. Abstract of Judgment: A
judgment lien is created by the
proper recording and indexing of
an abstract of judgment. The
abstract of judgment must be filed
in each county where the
judgment lien is sought to be
fixed. Tex. Prop. Code §§52.001-
0011 and Tex. Civ. Prac. & Rem.
Code §52.001, et seq.;
a. Dormant Judgments -
Tex. Civ. Prac. & Rem.
Code §34.001;
b. Revival of Judgments -
Tex. Civ. Prac. & Rem.
Code §31.006.
B. Writ of Execution: An execution
is a judicial writ directing the
sheriff or other authorized official
to seize and sell property (real and
personal) to pay off a judgment
debt. Tex. Civ. Prac. & Rem.
Code §§34.001-.067 and 30.018.
a. Property Exemptions:
Tex. Const. art. XVI,
§§49-51; Tex. Prop. Code
§§ 41.001-42.0021.
b. Procedures: Tex. R. Civ.
P. 313, 621-656.
C. Garnishment: An order for the
defendant to turn over certain
sources of income as they come
into his/her possession in order to
pay the judgment. Tex. Civ. Prac.
& Rem. Code §§ 63.001-.008;
Tex. Finance Code §59.001(2),
§59.008, §201.102, §201.103,
§276.002.
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a. Property Exemptions:
Tex. Const. art. XVI, § 28;
Tex. Civ. Prac. & Rem.
Code §63.004; Tex. Prop.
Code §42.001(b)(1).
b. Procedure: Tex. R. Civ. P.
657- 79.
D. Turn Over Orders: The
"turnover statute" applies in those
situations where the debtor's
property "cannot readily be
attached or levied on by ordinary
legal process" and allows the
court to grant injunctive relief,
order a turnover of property or
appoint a receiver. Examples
include accounts receivable, tax
refunds, causes of action
settlements, rents. Tex. Civ. Prac.
& Rem. Code §31.002, §31.0025
and §31.010.
E. Charging Orders: Ehhh… really
this applies to divide up interests
imbedded in a partnership. For
criminal or civil code
enforcement, you should
probably just ignore this one.
F. Writ of Possession: There are
several types. Mainly, a writ of
possession allows the
enforcement of a judgment by
seizing certain property since the
writ itself commands the
constable to return property to the
person entitled under the
judgment. Tex. R. Civ. P. 308-
310.
In certain limited circumstances, pre-
judgment writs may be required, especially in
a code compliance case, in order to secure
property or aspects prior to the conclusion of
the municipal court trial. Such tools include:
G. Writ of Sequestration:
Sequestration is the temporary
seizure by the constable of
specific property to which a party
to a suit has a claim of ownership.
Tex. R. Civ. P. 699.
H. Writ of Attachment (for
property): is a prejudgment
attachment in which the debtor’s
property is seized so that if the
creditor ultimately prevails, the
creditor will be assured of
recovering on the judgment
through the sale of the seized
property. Tex. Civ. Prac. & Rem.
Code §61.001-044; Tex. R. Civ.
P. 592.
VI. Judge Involvement
So, that’s all well and good to know,
but what does the municipal court judge have
to do with such collection efforts?
Deciding which collection options to
use will require the prosecution and city team
to coordinate and perform a cost/benefit
analysis. There are a lot of moving parts to
the decision. This article is not meant to
encourage or direct any specific method, but
to let the team know there are additional tools
available.
However, the municipal court judge
needs to know what the processes are which
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may be utilized by the city or the state and
must respond accordingly.
1) First, the court must be aware of
any collection ordinances adopted
by the city pursuant to Tex. Code
Crim. Proc. art. 45.203. The
ordinance may involve the court
needing to act or get involved
with certain orders.
2) As a collection effort, the city
may seek discovery in aide of
judgment to determine whether
any assets exist worth seizing. If
the city does not get proper
responses, it may seek civil
discovery orders or sanctions in
municipal court. Since the judge
is a municipal court judgement,
the municipal judge is the proper
court to hear such disputes.
3) Abstract of judgements may be
sought by the city or state. The
clerk of the court, upon request,
will prepare the abstract.
However, many municipal clerks
have never seen an abstract of
judgment. The judge may be
requested to prepare the abstract.
However, the judge may also
order the requesting attorney to
prepare the abstract and submit
for review. Tex. Prop. Code sec.
52.002.
4) The abstract of judgment, which
is prepared and filed in municipal
court but filed and indexed in the
county court records, is normally
considered a lien attaching to any
real property owned by the
defendant. However, it is not a
lien, even if filed, if the Defendant
posted a bond or security for
appeal. But that can be overruled
if certain findings are made by the
judge. Tex. Prop. Code Ann. §
52.0011. The court must be
aware such findings may be
requested and that it will need to
make post-judgment findings in
certain circumstances.
5) A judgment creditor is entitled to
aid from a court of appropriate
jurisdiction through injunction or
other means in order to reach
property to obtain satisfaction on
the judgment if the judgment
debtor owns property, including
present or future rights to
property. Tex. Civ. Prac. & Rem.
Code Ann. § 31.002 (West 2017).
6) Art. 45.047 states the judge may
execute enforcement in the same
manner as a civil suit. Tex. Gov’t
Code sec. 21.001 states all courts
have inherent power to enforce its
lawful orders, including authority
to issue the writs and orders
necessary to aid its judgments.
This applies whether you are a
court of record or a court of non-
record.
7) Filings in the court must
accommodate requests for
abstracts, discovery, writs of
execution and other collection
matters which are post-judgment.
The city or state file in municipal
court, not county or district court.