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Tools for Effective Court Administration. TMCEC Regional Judges & Clerks Pre-Conference Session. Mark Goodner Program Attorney & Deputy Counsel TMCEC. Katie Tefft Program Director TMCEC. Issue Spotting?. What “log jams” have you encountered that have hindered effective - PowerPoint PPT Presentation

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Tools for Effective Court Administration

Tools for Effective Court AdministrationTMCEC Regional Judges & ClerksPre-Conference Session

Mark GoodnerProgram Attorney & Deputy CounselTMCECKatie TefftProgram DirectorTMCEC

1Issue Spotting?What log jams have you encountered that have hindered effective court administration?

20900078765432156004987654321039876543210987654321021987654321098765432100HoursMinutesSecondsWhat log jams have you encountered?Issue Spotting30900068765432155004987654321039876543210987654321021987654321098765432100HoursMinutesSecondsWhat log jams have you encountered?Issue Spotting40900058765432154004987654321039876543210987654321021987654321098765432100HoursMinutesSecondsWhat log jams have you encountered?Issue Spotting50900048765432153004987654321039876543210987654321021987654321098765432100HoursMinutesSecondsWhat log jams have you encountered?Issue Spotting60900038765432152004987654321039876543210987654321021987654321098765432100HoursMinutesSecondsWhat log jams have you encountered?Issue Spotting70900028765432151004987654321039876543210987654321021987654321098765432100HoursMinutesSecondsWhat log jams have you encountered?Issue Spotting80900018765432150004987654321039876543210987654321021987654321098765432100HoursMinutesSecondsWhat log jams have you encountered?Issue Spotting910Whose Job is it?presented by:Katie TefftTMCEC

Who can legitimately do it?11

Take a look at these pictures notice anything wrong?12

Anything out of place?13Types of Duties Law enforcement Magistrate Prosecutorial Judicial Ministerial

14According to Blacks Law Dictionary:

Duty: any action, performance, task, or observance owed by a person in an official capacity

Delegable duty: a duty that may be transferred to another to perform

Types of Duties Law enforcement

It is the duty of every peace officer to preserve the peace within the officers jurisdiction [by the use of] all lawful means (Art. 2.13, CCP)

Where authorized, to interfere (and arrest offenders) without warrant to prevent or suppress crime;Execute all lawful process issued to the officer by any magistrate or court;Give notice to magistrate of all offenses committed within his jurisdiction where he has probable cause 15Types of Duties Magistrate

It is the duty of every magistrate: to preserve the peace within his jurisdiction by the use of all lawful meansto issue all process intended to aid in preventing and suppressing crimeto cause the arrest of offenders by the use of lawful means in order that they may be brought to punishment (Art. 2.10, CCP).

16Types of Duties

Prosecutorial

It is the primary duty of a municipal prosecutor not to convict, but to see that justice is done.

17Prosecutorial discretion: a prosecutors power to choose from the options available in a criminal case, such as filing charges, prosecuting, not prosecuting, plea-bargaining, and recommending a sentence to the court

Types of Duties Judicial duties Require:

An exercise of judgmentA question of law or factA choice of alternatives

18So I once heard this story about a road rage incident where a guy, who happened to be a lawyer, was talking on his cell phone and rear ended the car in front of him. Because he knew he was at fault, but being a lawyer, thought he could deflect that, he marched up to the car in front of him and motioned by that driver to roll down the window. The lawyer looked at the other driver and said Oh man, are you in trouble. Im an attorney. The other driver just sort of chuckled and lowered his glasses and said in a slow voice: No son. You are the one in trouble. I am a judge.

Might be a factual determination as the trier of facts, based on admissible evidence to weigh the evidence and credibility of the evidenceMight be a legal interpretation to apply the correct law to the facts or to interpret with the law is ambiguous or in conflictMight be to rule on objections or motions to sustain or overrule an objection, to grant or deny a motion

WORD OF THE DAY:__ __ __ __ __ __ __ __ __ __DISCRETIONDiscretion: wise conduct and management; cautious discernment; prudence

Judicial discretion: the exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a courts power to act or not act when a litigant is not entitled to demand the act as a matter of right

Discretionary duty: A duty that allows a person to exercise judgment and choose to perform or not perform19Types of Duties Judicial duties Require:

An exercise of judgmentA question of law or factA choice of alternatives

20

Nothing is left to discretionImposed by law and generally administrative in nature

Ministerial duties

Types of Duties21Ministerial duty: a duty that requires neither the exercise of official discretion or judgment

Types of Duties Law enforcement = Magistrate Prosecutorial Ministerial Administrative JudicialPeace OfficersJudgesProsecutorsClerks & JudgesJUDGESClerks & Judges22Clerks & Judges for administrative. Consider the example of the complaint. The prosecutor should be drafting complaints and can be the complainant. The clerk can do that, and often does, as an administrative task. The judge, however, should not be signing complaints as the affiant as that would negate the neutral and detached role of the judge.

The judge exceeded the scope of his judicial authority and misused his position as a judge when he approached a driver who he believed had been speeding, identified himself as a judge, ordered her to produce her drivers license to him, and directed her to appear in his chambers in order to obtain the return of her license. With no case pending in his court, the judge forced the driver to appear before him in order to lecture her about his own personal feelings about her driving.

Public admonition of a former justice of the peace (2011)

Examples of Improper Judicial Conduct

from the SCJCs Annual ReportMany of the examples are more related to a judge improperly delegating their authority.

AG Opinion H-386 from AG Hill in 1974: asked whether a JP may delegate responsibilities to employees of his office. AG relied on the maxim delegatas non potest delegare which mean the person to whom an office or duty is delegated cannot lawfully devolve the duty on another unless expressly authorized to do so.

Said those powers and duties of a public officer which are judicial in nature, as distinguished from those which are ministerial cannot be delegated to another those duties include accepting pleas of guilty, levying fines on such pleas, setting bonds on pleas of not guilty, among the judicial functions which a JP cannot delegate to his clerk, secretary, spouse, or anyone else.23You must build a structure that:is at least 12 tallhas a playing card at the topuses all 7 cards

Rule: Cards cannot lay flat on the table

Resources: 7 playing cards

Your Mission24H.B. 1: effective immediately

New rules:

You must also use 3 wooden blocks and 6 dominoes.

Cards cannot be used in a stack (laying flat against one another).

All other rules already in effect still apply.

Resources: 7 playing cards, 3 wooden blocks, 6 dominos

25H.B. 2: effective immediately

You may use up to 3 straws in completing your mission.

Resources: 7 playing cards, 3 wooden blocks, 6 dominos, 3 straws

26Hint:

You may adopt an ordinance or issue a standing order or local rule allowing you to use other helpful objects to complete your mission.

Look around for inspiration

27

You could do it with your limited resources

But it could be done faster, more efficiently, and more effectively with additional tools28What are they?Orders from the judge directing court staff on how to perform a dutyMust be in writingSigned by the judgeMust be specificMust remove all discretion from the situation

Standing OrdersDoes your court have standing orders?

Find them

Review them

Need to be reviewed by each judge upon a new judge taking office

29

Ministerial Duty: DocketingArticle 45.017, CCP The judge of each court, or if directed by the judge, the clerk of the court, shall keep a docket containing the following information...

The information in the docket may be processed and stored by the use of electronic data processing equipment, at the discretion of the municipal court judge.A delegable dutyThe judge abdicated official duties by relinquishing control of the courts criminal docket to the county attorney, whose office was unable to handle the volume of work due to staff shortages.

-2008 Private Warning and Order of Additional Education of a County JudgeThe quintessential ministerial duty

Statute tells us what the docket must contain: the style and file number of each case, the offense charged, the defendants plea and when it was entered, any warrants issued, the date of trial if there was one, the verdict, sentence, etc

Statutes also tell us when the docket must be posted immediately when the clerk is notified of the docket by the court

Brainstorm other ministerial duties:-Reporting convictions to DPS (Sec. 543.203: the judge or clerk of the court)-How about reporting to the Comptroller or OCA

30

How many of you would feel comfortable having a waitress fix the brakes on your car?

Who would want a mechanic to fill your cavity?

How about having your dentist fly a Southwest jet (carrying the TMCEC staff) to Padre?

Or better yet, having a pilot perform open heart surgery on a loved one?

Hows this example:The judge allowed his relationship with a criminal defendant and her mother to influence his conduct and judgment, causing him to repeatedly intercede in a pending criminal matter on behalf of the defendant. The judges activities on behalf of the defendant lent the prestige of his judicial office to advance her and her mothers private interests, particularly when he (1) contacted the prosecutor and the district judge in an attempt to influence them to discharge the second bond and to release her from custody on her first bond; and (2) attempted to influence law enforcement officials to curtail any investigation into possible on-going criminal activities by the defendant.

Public Admonition of a JP (2012)31What can they cover?Standing OrdersDoes your court have standing orders?

Find them

Review them

Need to be reviewed by each judge upon a new judge taking office

32Judicial Duty: Granting continuancesGood use for standing ordersChapter 29, CCPUpon motion to the court (ruling on motions is a judicial duty)33Judicial Duty: Accepting pleasWhat do the statutes say?A plea of guilty or no contest may be made either by defendant or counsel in open court under Article 27.14But in a fine-only case, in lieu of above, defendant may mail or deliver in person to the court a plea of guilty or no contestA plea of not guilty may be made orally by the defendant or counsel in open court under Article 27.16But in a fine-only case, in lieu of above, defendant may mail to the court a plea of not guiltyDefinition from law dictionary.com

Often arises on the question of accepting a payment which is late or not complete34Judicial Duty: Accepting pleasDefinition of acceptTo receive something with approval and intention to keep it.So what does it mean to accept a plea?

Pleas can be made in person in court, in person at the window, by mail (or any other clever way courts have devised)

But when is the plea actually accepted?

Even though we have Chapter 45 of the Code of Criminal Procedure to instruct us in fine-only cases in municipal courts, we are still bound by the rest of the Code of Criminal Procedure.

Chapter 26 deals with the arraignment, which we do not really have in municipal court only in felony or misdemeanors punishable by imprisonment, but Article 26.13 addresses a plea of guilty

Prior to accepting a plea of guilty or a plea of no contest, the court shall admonish the defendant of the range of punishment attached to the offense and the fact that the prosecutors recommendation for punishment is not binding on the court.

Subsection (b) says that no plea of guilty or no contest shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary

Think of all the ancillary consequences that can come out of our fine-only offenses license suspensions, surcharges, CDL denial or revocation. It is up to judges to ensure that defendants often unrepresented are entering their pleas freely and voluntarily. Because it is the judge that must make this determination (remember there is some discretion in that), accepting a plea (to receive it with approval and intention to keep it) is a judicial duty.35Judicial Duty: Accepting pleasIs it delegable?Clerks can accept the plea and process the paperwork

But think through what happens when the plea is accepted

Only a judge can formally accept a pleaOnly a judge can enter a plea of not guiltyDoes your city have a policy where defendants can enter pleas with the prosecutor? With the police?

Because the plea is only accepted when the judge accepts it, the date of the plea is really the date the judge accepts it.

If defendant refuses to plead: Article 45.024 specifically says the JUDGE shall enter a plea of not guilty

36Judicial Duty: Accepting paymentsWhat do the statutes say?Article 27.14(c) provides that payment of a fine or an amount ACCEPTED by the court constitutes a finding of guilty in open court as though a plea of no contest had been entered and jury trial waivedWho can accept?Only the judge has the discretion to decide whether payment offered satisfies the judgmentClerk can take the payment, prepare a judgment for the judges signature if one not already signed37Judicial Duty: Setting finesArticle 45.041, CCPThe judgment and sentence shall be that the defendant pay the amount of the fine and costs to the State.Legislature (or council) sets the range, while the judge sets the amount within the rangeHow about a standing order fixing the fine amount

This is the quintessential judicial duty imposing the sentence

Section 1.02 of the Penal Code says that penalties should be proportionate to the seriousness of offenses and should permit recognition of differences in rehabilitation possibilities among individual offenders

Theories of punishment:-deterrence:*punishment of one to discourage others*future deterrence of the individual offender-rehabilitation

Appellate courts give judges decisions in assessing sentence complete deference so long as the sentence is within the statutory range38So, is it delegable?

The judge relinquished his judicial duties to officers in the police department and allowed them to accept pleas and collect fines and court costs from criminal defendants arrested on Class C misdemeanor or sight offenses and/or arrested on outstanding warrants and capiases.

-2009 Private Admonition of a Municipal Court JudgeJudicial Duty: Accepting pleas / payments39Judicial Duty: Accepting pleasSpecific circumstancesIf defendant is a child: Article 45.0215 says the JUDGE must take the defendants plea in open courtIf defendant is a minor charged with an ABC offense, plea of guilty must be made in open court before the JUDGE (Section 106.10, ABC)

The judge failed to comply with the law and failed to maintain professional competence in the law when she allowed her court staff and city prosecutors to take pleas from juvenile defendants in her absence.

-2011 Private Admonition of a Former Municipal Court JudgeOther statutes specifically address who make take a plea

Note that 45.0215 also says the judge shall issue the summons to compel the parent to be present40Judicial Duty: Entering judgmentArticle 45.041, CCPThe JUDGE may direct the defendant to pay

All judgments, sentences, and final orders of the judge shall be rendered in open court

The judge failed to enter a final written order or judgment in Complainants case.

-2011 Private Order of Additional Education of a Municipal Court JudgeWhy is judgment important?The judge may direct the defendant to pay:The entire fine and costs when sentence is pronounced;The entire fine and costs at some later date; orA specified portion of the fine and costs at designated intervals

If the judge determines that the defendant is unable to immediately pay the fine and costs, the judge shall allow the defendant to pay in specified portion at designated intervals41Judicial Duty: Entering JudgmentAlso entails:Granting payment plansArticle 45.041Granting community serviceArticle 45.049Waiving fines/costsArticle 45.0491Determining indigencyAll of the aboveGranting time servedArticles 45.041, 45.048

Where could we use a standing order?Granting payment plans part of entering judgment when determining how the fine/costs are to be paid

Granting community service a judge may require a defendant who fails to pay a previously assessed fine or costs, or who is determined by the court to have insufficient resources or income to pay a fine or costs, to discharge all or part of the fine or costs by performing community service; the judge must specify the number of hours the defendant is required to work (45.049)

45.0492: a judge may require (for a child.)

Waiving fines/costs a municipal court may waive payment of a fine or costs imposed on a defendant who defaults in payment if the court determines that the defendant is indigent and discharging the fine and costs by community service would impose an undue hardship (45.0491)

Determining indigency a function of the court

Granting time served the judge shall credit the defendant for time served in jail. (45.041)

42.03: the judge of the court in which the defendant is convicted shall give the defendant credit on the defendants sentence for the time that the defendant has spent in jail for the case from the time of his arrest and confinement until his sentence by the trial court42Judicial Duty: Granting deferredArticle 45.051, CCPThe judge may defer further proceedingsDefendant can request, clerk can process, but only the JUDGE can grantGreat use of standing orders to allow clerk to process case without waiting on judicial determinationCompletely discretionary!

Therapeutic jurisprudence: a multi-disciplinary perspective that acknowledges the potential curative (therapeutic) and injurious (anti-therapeutic) consequences of the law and legal procedures on those involved (inc. defendants, victims, community)

Terms are subject to appellate review under an abuse of discretion standard

The only non-discretionary terms are for those individuals under age 25 who are charged with a moving violation, in which case the judge must order a DSC as a condition and if defendant holds a provisional license, must order the defendant to retake the driving test

Applies to almost anything except traffic offenses committed in a construction zone or a CDL holder charged with an offense involving motor vehicle control43Judicial Duty: Granting DSCArticle 45.0511(c), CCPSome are entitled to take a DSC if the appropriate offense, proof of insurance, valid DL, has not taken one in the past 12 months, and makes a timely requestClerk can process and judge shall enter judgment and defer impositionArticle 45.0511(d), CCP

If defendant did not timely request or has taken one within the past 12 months, DSC is discretionaryThe COURT may grant a request to take a DSC44Judicial Duty: Dismissing casesJudges authority is limitedLack of jurisdictionSubject matterTerritorialOperation of lawDeferred dispositionDriving safety courseTeen courtChemically dependent personTobacco awareness courseFailure to attend school proof of graduation/compliance

Compliance dismissalsExpired registration, inspection, equipment violation, etc.Proof of insuranceProof of valid DLNo motion needed 45Judicial Duty: Dismissing casesProsecutorial discretionInterest of justiceDefense to prosecution that cannot be overcomeNon-prosecutableOfficer unavailableLength of time that has passedPlea-bargaining

The judge failed to comply with the law, engaged in improper ex parte communication with a litigant, and denied a party the right to be heard according to law when he: (1) communicated and plea bargained with a defendant outside the presence of the State; (2) dismissed several of the defendants cases without input or consent from the State; and (3) erroneously noted on the file jackets of the dismissed cases that the State and its witness were not ready for trial.

-2011 Private Admonition and Order of Additional Education of a Municipal Court Judge46Judicial Duty: Dismissing cases

Article 32.02: The attorney representing the State may, by permission of the court, dismiss a criminal action at any time upon filing a written statement with the papers in the case setting out his reasons for such dismissal No case shall be dismissed without the consent of the presiding judge.The judge failed to comply with the law and demonstrated a lack of professional competence in the law when he unilaterally negotiated plea deals and dismissed criminal cases without the consent of the State. The judge further lent the prestige of his office to advance the private interests of charitable organizations when he allowed a defendant to make a donation to a charity in exchange for having a speeding citation dismissed.

-2012 Private Warning of a former Municipal Court Judge47Judicial duties that cannot be delegatedAnd what could happen if they areSignature stamps: Daniels v. Stovall, 660 F. Supp. 301 (SD Tex 1987) A Texas JP allowed his court clerk to rubber stamp his signature on mental health warrants and then issue them. He swore that he would review the warrants the next business day and then adopt them. A federal court ruled that neither the judge nor clerk was entitled to immunity because such conduct was beyond the authority of both the judge and clerk.

Appellate court held that the judges signature may be stamped only in the judges presence and under the judges direction. Otherwise, no authority may be vested in the court clerk- or anyone- to affix the judges signature. This poses a problem for signature stamps and electronic signatures. Judge is responsible for everything his/her signature is on.

Imagine having your signature on an arrest warrant (a Chapter 45 warrant that was issued upon the filing of a PC affidavit). The defendant is stopped for that warrant, and cops discover drugs in the car during the search incident to arrest. The defendant challenges the validity of the warrant in a suppression hearing. You are subpoenaed to a pre-trial hearing to testify about the probable cause for the arrest. But you didnt review the warrant, your clerk just stamped it to save you the trip to the court. What now?

48Judicial Duty: Issuing WarrantsArticle 45.014(a), CCPWhen a sworn complaint or affidavit based on probable cause has been filed before the municipal court, the JUDGE may issue a warrant for the arrest of the accused and deliver the same to the proper officer to be executed.Non-delegable dutyLaw enforcement may request the warrantClerk may prepare the warrantBut only a judge may issue the warrantDefinition of issue according to Blacks Law Dictionary: to be put forth officially as in without probable cause, the warrant will not issue or- to send out or distribute officially as in issue process

Sharp v. State, Houston municipal court clerk issued a capias warrant of arrest for a defendant who failed to appear for a helmet law violation. The defendant was later stopped by police and when they discovered this warrant, they arrested the defendant and found drugs in the search incident to arrest. He was convicted of possession of meth. On appeal, the appellate court held that the deputy municipal court clerk did not have authority to issue a capias/warrant.

The Houston municipal courts policy was that when a defendant failed to appear, the clerk was delegated with the authority to stamp the judges signature and issue the capias/warrant. The Court of Criminal Appeals ruled that although clerks are empowered to perform ministerial tasks, such as preparing process under the direction of the judge, they are not authorized or trained to determine probable cause to support the issuance of a warrant. Here, an officer wrote a ticket no determination of probable cause by a neutral or detached magistrate. Then the clerk issued a warrant for that offense still no determination of probable cause. Hence the defendants arrest was illegal and all evidence obtained from that arrest was excluded.

49Judicial Duty: Issuing Capias Pro FinesArticle 45.045(a), CCPIf the defendant fails to satisfy the judgment according to its terms, the COURT may order a capias pro fine issued for the defendants arrest.Clerk may prepare the capias pro fineOnly a judge may issue the capias pro fineLaw enforcement would then execute the writNon-delegable dutySame would hold true for a capias under Chapter 43: issued by the court or Chapter 23: issued by a judge of the court

Note that Art. 23.031 states that a district clerk, county clerk, or court may issue in electronic form a capias for the failure of a person to appear before a court or comply with a court order. Does not say a clerk of a municipal court!

50Judicial Duty: Commit someone to jailArticle 45.046(a), CCPThe JUDGE may order the defendant confined in jail until discharged by law if the JUDGE at a hearing makes a written determination that...Non-delegable dutyClerk may prepare the commitment orderOnly a judge may sign the commitment order

45.046:

When a judgment and sentence have been entered against a defendant and the defendant defaults in the discharge of the judgment, the judge may order the defendant confined in jail until discharged by law if the judge at a hearing makes a written determination that:

The defendant is not indigent and has failed to make a good faith effort to discharge the fine and costs; orThe defendant is indigent and has failed to make a good faith effort to discharge the fine and costs under [community service] and could have so discharged the fines and costs without experiencing any undue hardship.51

Limits on judicial discretionA judge should not act arbitrarily or unreasonablyA judge should view each individual case and not resort to unbending standards52SCOTUS has long held that because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused

A judge should not act arbitrarily or unreasonably

A judge should view each individual case and not resort to unbending standards

Cannot infringe on individuals rights equal protection, 1st amendment rights to free speech, religion, should not be based on race, gender, age, origin, sexual orientation, religion

Consequences of delegating a judicial dutyArrests may be illegalEvidence may be suppressedJudge, clerk or city may not be immune from liability

53Crane v. Texas 1985 Federal case judge allowed the county and district attorney to devise a policy allowing the clerk to issue misdemeanor capiases. In a suit against the county alleging that this practice violated defendants constitutional rights by not having a magistrate or judge review for probable cause, the federal court held that the county officials were effectuating county policy, not state policy. And the county policy was unconstitutional, thus there was no immunity for the defendants, who were held civilly liable

Lopez v. Vanderwater, 620 F.2d 1229 (7th Circuit in 1980), cert denied by SCOTUS judge decided to prosecute a particular defendant, decided what offense to charge, prepared the notice to appear, and prepared a guilty plea and a waiver of jury. Then the judge presented the papers to the defendant himself. Prosecutors office was never contacted. Court ruled there was no way the judge could act impartially on those papers. Judge was not entitled to judicial immunity because those actions compromised the judges ability to act as an impartial judge in the case, and the judge performed the acts of a prosecutor, not judicial acts.

Could the use of a standing order help with the problem you identified earlier?

Do you currently have standing orders?

Do you know where they are?

Have you read them?

540900058765432154004987654321039876543210987654321021987654321098765432100HoursMinutesSecondsCould a standing order help?Standing Orders550900048765432153004987654321039876543210987654321021987654321098765432100HoursMinutesSecondsCould a standing order help?Standing Orders560900038765432152004987654321039876543210987654321021987654321098765432100HoursMinutesSecondsCould a standing order help?Standing Orders570900028765432151004987654321039876543210987654321021987654321098765432100HoursMinutesSecondsCould a standing order help?Standing Orders580900018765432150004987654321039876543210987654321021987654321098765432100HoursMinutesSecondsCould a standing order help?Standing Orders5960SourcesDaniels v. Stovall, 660 F. Supp. 301 (S.D. Tex. 1987)Crane v. Texas, 759 F.2d 412 (5th Cir. 1985)Sharp v. State, 677 S.W.2d 513 (Tex. Crim. App. 1984)Lopez v. Vanderwater, 620 F.2d 1229 (7th Cir. 1980) Tex. Atty. Gen. Op. No. H-386 (1974)SCJC, Annual Report, FY 2008, 2009, 2011Who Can Accept Payments from Defendants? The Recorder (May 2007), p. 2161What solutions has your court come up with to combat inefficiency and increase effectiveness?

Effective Solutions?620900078765432156004987654321039876543210987654321021987654321098765432100HoursMinutesSecondsWhat solutions have you found?Effective Solutions630900068765432155004987654321039876543210987654321021987654321098765432100HoursMinutesSecondsWhat solutions have you found?Effective Solutions640900058765432154004987654321039876543210987654321021987654321098765432100HoursMinutesSecondsWhat solutions have you found?Effective Solutions650900048765432153004987654321039876543210987654321021987654321098765432100HoursMinutesSecondsWhat solutions have you found?Effective Solutions660900038765432152004987654321039876543210987654321021987654321098765432100HoursMinutesSecondsWhat solutions have you found?Effective Solutions670900028765432151004987654321039876543210987654321021987654321098765432100HoursMinutesSecondsWhat solutions have you found?Effective Solutions680900018765432150004987654321039876543210987654321021987654321098765432100HoursMinutesSecondsWhat solutions have you found?Effective Solutions6970Hypos:Defendants dont show up for court.

Defendants dont satisfy their judgments.

71Getting them to comply

72ENFORCEMENT OPTIONSNoncomplianceArrest

Collections

Contempt

OmnibaseBondCivil Writ / Abstract

Scofflaw

NRVC73PASSIVE ENFORCEMENT

Come to papa

Omnibase / FTA Program (DPS)

Scofflaw (TxDOT)

Non-Resident Violator Compact

74

ACTIVEENFORCEMENT

WarrantCapias Pro Fine

Collection Contract

Abstract of Judgment and Writ of Execution

Bond Forfeiture

Go Get Em75Failure to appear

76ENFORCEMENT OPTIONS: Pre-judgmentNoncomplianceArrest

Collections

OmnibaseBond

Scofflaw

NRVC77active ENFORCEMENT

78Pre-Judgment

Article 15.01, Code of Criminal Procedure: A magistrate may issue an arrest warrant or a summons

Article 17.19, Code of Criminal Procedure: Arrest warrant for bond forfeiture or surrender of principal

Article 45.014, Code of Criminal Procedure: Upon sworn complaint or affidavit of probable cause, a judge may issue warrant for the arrest of the accusedArrest warrant79Collection contractsChapter 103, Code of Criminal ProcedureCity may contract with private attorney or private vendor to collect unpaid fines, fees, court costs and restitution ordered by the courtAlso for amounts in cases in which the accused has failed to appearIf city has more than 1.9 million population, can run inside collection agency

Already in the law in 199580How does it work?City can turn over amounts that are more than 60 days past due:Failure to pay on the 61st day after the amounts were ordered paid (in the judgment) or the defendant failed to appear

City may authorize a 30% collection fee on matters referred to collection agency on amounts more than 60 days past due (or the amount to be paid that is communicated to the defendant as acceptable / amount ordered paid in later judgment)Collection fee does not apply to case dismissed by court or to amounts satisfied through time-served or community serviceIf court determines defendant is indigent, has insufficient resources, or is otherwise unable to pay all of part of fine/costs, not liable for 30% fee

81What are the issues?Negotiation of contractsWhat if case is dismissed?What if defendant is acquitted?What if defendant gets time served or community service or fine/costs are waived?Others?

82PASSIVE ENFORCEMENT

83DPS Omnibase ProgramChapter 706, Transportation CodeCity must contract with DPS (Omnibase)DPS may deny RENEWAL of drivers license for failure to appear based on citation or complaint or- failure to pay or satisfy judgment ordering payment of fine/costsApplies to any offense that the court has jurisdiction ofEnacted in the 74th Legislative Session (1995): only applied to cities for failure to appear for certain traffic violationsIn 76th Session (1999): Applies to cities for failure to appear for all offensesIn 2001: Applies to cities for failure to appear or failure to pay for all offenses2003: Applies to counties too for all84How does it work?City contracts with Omnibase Services of TexasCity sends new offenses to OmnibaseOmnibase notifies DPS to flag the violators DL recordOmnibase notifies violator of restriction on renewalViolator contacts city to resolve open casesCity notifies Omnibase to remove the holdOmnibase notifies DPS to remove the restriction

City contracts with Omnibase Services of Texas: Omnibase provides software to cities at no charge: there is a form to fill out on the Omnibase websiteCity sends new offenses to Omnibase: special ways to upload new cases / will work with a 3rd party software; must include name, date of birth, and DL number of violator / nature and date of alleged violation / statement on whether it is a FTA or FTP / any other required infoOmnibase notifies DPS to flag the persons DL recordOmnibase notifies violator of restriction on renewal: mails letter of notification to violators at the court-listed address and most recent DPS address within 24 hours of DPS accepting the restriction; works with violator with information on contacting the reporting court; 800 number and operator assistance 24 a dayViolator contacts city to resolve open casesCity notifies Omnibase to remove the hold: city shall immediately notify that there is no cause to continue to deny renewalOmnibase notifies DPS to remove the restriction

85

http://www.texasfailuretoappear.com86Must have warning on citationsCity must include a warning on citations for any traffic law that essentially warns defendants that the failure to appear or pay/satisfy the judgment may result in denied renewal of the persons drivers license

87What are the issues?City shall immediately notify Omnibase that there is no cause to continue to deny renewal on payment of the fee and:Perfection of appealDismissal of chargePosting or bond of other security to reinstate the chargePayment or discharge of fine and costs owedOther suitable arrangement with court to pay the fine/costs

88What are the issues?Violator shall pay an administrative fee of $30 for each complaint or citation reported, unless acquitted of the chargeFee shall be paid when:Court enters judgmentOffense is dismissedBond or other security is posted to reinstate the charge

89What are the issues?Renewal will be denied until the fee is paidCollected by the courtReported on quarterly report$20 to the Comptroller$10 to go to DPS$10 stays with city$6 often the contracted rate with Omnibase

90What are the issues?City shall immediately notify Omnibase that there is no cause to continue to deny renewal on payment of the fee and:Perfection of appealDismissal of chargePosting or bond of other security to reinstate the chargePayment or discharge of fine and costs owedOther suitable arrangement with court to pay the fine/costs

91What are the issues?DPS may not continue to deny renewal after receiving notice:From the city as discussed on previous slideThat the violator was acquitted for the chargeFrom the city that the flag was sent in error or the case records have been destroyed in accordance with records retention policy

Update should occur within 5 business day!

Maintain database on violators for five years after clearance and indefinitely for non-clearances Monthly training for jurisdictions using our software

92How effective is it? As of March 1, 2011

10.1 million offenses entered 57.4% cleared 695 cities participating 236 counties participating

93Nonresident violator compact Chapter 703, Transportation CodeOnly applies to traffic violation, and not to Offenses that mandate a personal appearanceMoving violations that alone carry a suspensionEquipment, inspection, registration, parking violationsSize and weight limit or hazardous material violationsMotor carrier violationsThe Nonresident Violator Compact of 1977 assures non-resident motorists receiving citationsfor minor traffic violations in a member state the same treatment accorded residentmotorists.

In 1977:

(a)The party jurisdictions find that:(1)In most instances, a motorist who is cited for a traffic violation in a jurisdiction other than his home jurisdiction:(i)Must post collateral or bond to secure appearance for trial at a later date; or(ii)If unable to post collateral or bond, is taken into custody until the collateral or bond is posted; or(iii)Is taken directly to court for his trial to be held.(2)In some instances, the motorist's driver's license may be deposited as collateral to be returned after he has complied with the terms of the citation.(3)The purpose of the practices described in paragraphs (1) and (2) above is to ensure compliance with the terms of a traffic citation by the motorist who, if permitted to continue on his way after receiving the traffic citation, could return to his home jurisdiction and disregard his duty under the terms of the traffic citation.(4)A motorist receiving a traffic citation in his home jurisdiction is permitted, except for certain violations, to accept the citation from the officer at the scene of the violation and to immediately continue on his way after promising or being instructed to comply with the terms of the citation.(5)The practice described in paragraph (1) above causes unnecessary inconvenience and, at times, a hardship for the motorist who is unable at the time to post collateral, furnish a bond, stand trial, or pay the fine, and thus is compelled to remain in custody until some arrangement can be made.(6)The deposit of a driver's license as a bail bond, as described in paragraph (2) above, is viewed with disfavor.(7)The practices described herein consume an undue amount of law enforcement time.(b)It is the policy of the party jurisdictions to:(1)Seek compliance with the laws, ordinances, and administrative rules and regulations relating to the operation of motor vehicles in each of the jurisdictions.(2)Allow motorists to accept a traffic citation for certain violations and proceed on their way without delay whether or not the motorist is a resident of the jurisdiction in which the citation was issued.(3)Extend cooperation to its fullest extent among the jurisdictions for obtaining compliance with the terms of a traffic citation issued in one jurisdiction to a resident of another jurisdiction.(4)Maximize effective utilization of law enforcement personnel and assist court systems in the efficient disposition of traffic violations.(c)The purpose of this compact is to:(1)Provide a means through which the party jurisdictions may participate in a reciprocal program to effectuate the policies enumerated in paragraph (b) above in a uniform and orderly manner.(2)Provide for the fair and impartial treatment of traffic violators operating within party jurisdictions in recognition of the motorist's right of due process and the sovereign status of a party jurisdiction.

94How does it work?Upon violators failure to comply with the terms of the citation for a traffic violation, court shall notify DPS of the failureDPS should then notify the violators home jurisdictionHome jurisdiction should then notify the violator and suspend the drivers license until complianceIssuing jurisdiction:(c)Upon failure of a motorist to comply with the terms of a traffic citation, the appropriate official shall report the failure to comply to the licensing authority of the jurisdiction in which the traffic citation was issued. The report shall be made in accordance with procedures specified by the issuing jurisdiction and shall contain information as specified in the Compact Manual as minimum requirements for effective processing by the home jurisdiction.(d)Upon receipt of the report, the licensing authority of the issuing jurisdiction shall transmit to the licensing authority in the home jurisdiction of the motorist the information in a form and content as contained in the Compact Manual.(e)The licensing authority of the issuing jurisdiction may not suspend the privilege of a motorist for whom a report has been transmitted.(f)The licensing authority of the issuing jurisdiction shall not transmit a report on any violation if the date of transmission is more than six months after the date on which the traffic citation was issued.(g)The licensing authority of the issuing jurisdiction shall not transmit a report on any violation where the date of issuance of the citation predates the most recent of the effective dates of entry for the two jurisdictions affected.

Home jurisdiction:(a)Upon receipt of a report of a failure to comply from the licensing authority of the issuing jurisdiction, the licensing authority of the home jurisdiction shall notify the motorist and initiate a suspension action, in accordance with the home jurisdiction's procedures, to suspend the motorist's driver's license until satisfactory evidence of compliance with the terms of the traffic citation has been furnished to the home jurisdiction licensing authority. Due process safeguards will be accorded.(b)The licensing authority of the home jurisdiction shall maintain a record of actions taken and make reports to issuing jurisdictions as provided in the Compact Manual.

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96What are the issues?City must submit within 6 months of the date on which the citation was issuedCannot be transmitted to home jurisdiction if both jurisdictions were not already parties to the compactCompact states include all states except:AlaskaCaliforniaMichiganMontanaOregonWisconsin

American Association of Motor Vehicle Administrators website97DMV Scofflaw ProgramChapter 702, Transportation CodeCity must contract with TxDMV or countyDMV or county may deny registration of vehicle for failure to appearor- failure to pay on a complaint that involves the violation of a traffic lawTraffic law means a statute or ordinance punishable by a fine not to exceed $200 that regulates the conduct or condition of a person operating a vehicle or the condition of a vehicle being operatedMust have a warrant issued!Already in the law in 199598How does it work?Used to only be for home-rule cities; this limitation was repealed in 2011Contract directly with TxDMV to flag records of vehiclesNo per-se contract with the county, but an interlocal agreement is suggested, as the law only provides that the county MAY deny renewalCity can submit probes (inquires) to match vehicle registration with defendantCity can then submit a flagA flagged record will display a scofflaw remark Flag seen across entire state

Each file submission costs $23.00 plus $.12 per probe/flag/clear submitted to TxDOTAND have a $500 deposit on hand with TxDMV99

This is an example of a COUNTY scofflaw record in El Paso County shown on a registration printout. This is the same information that would be displayed to the county. Note the County Code of 071 this is a numeric county identifier. As you can see, there is really no other information available such as the reason for the flag or amount of fine, fee or tax that is past due. A RTS record contains a wealth of information, but programming just does not currently allow for detailed scofflaw information.

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Registration renewals will contain a notice101How does it work?Violator receives notice at tax officeNotice refers violator to the appropriate courtViolator takes care of case at the court and obtains release documentViolator returns to tax office to register vehicle

102How does it work?City shall notify DMV / county (submit clear) on:Entry of judgment and payment to the court of fine/costsPerfection of an appealDismissal of the chargeAfter notice is received, county/DMV may not refuse to register the vehicleCity may impose a $20 fee against violatorMay only be used to reimburse the DMV / county DMV does not want the moneyRegistration & Title Bulletin #042-11: While the department is cited in the statute, the department does not intend to seek any portion of the $20103Must have warning on citationsCity must include a warning on citations for any traffic law that essentially warns defendants that the failure to appear or pay/satisfy the judgment might result in the person not being permitted to register a motor vehicle

104What are the issues?Flag is only a soft stopCounty tax office clerk mustNotice the remarkParticipate in enforcementSubcontractors should not processBut grocery store locations will likely not deny

Online renewal is a hard stop

105No pay defendant

106ENFORCEMENT OPTIONS: Post-judgmentNoncomplianceArrest

Collections

Omnibase

ScofflawCivil Writ / Abstract107Capias pro finePost-JudgmentDefined in Article 43.015, Code of Criminal ProcedureMeans a writ that is Issued by a court having jurisdiction of a case after judgment and sentence for unpaid fines and costs; and Directed to any peace officer of the State of Texas and commanding the officer to arrest the person convicted of the offense and bring the arrested person before that court immediately

Must state the amount of the judgment/sentence and command the peace officer to bring the defendant before the court immediately or place in jail until the following business day if cannot be immediatelyAlready in the law in 1995108Defendant is arrested. Now what?Defendant is taken to county jail, where he is released upon payment of delinquent amount

Defendant is taken before magistrate and a new bond is set

Defendant is taken to the court of original jurisdiction, where court will determine his fate

Only one of the 3 is technically correct!

109Article 45.046, Code of Criminal ProcedureWhen a judgment and sentence have been entered against a defendant and the defendant defaults in the judgment, the judge may order the defendant confined in jail if at a hearing, the judge makes a written determination that:The defendant is not indigent and failed to make a good faith effort to discharge fines/costs or-The defendant is indigent, has failed to make a good faith effort to discharge fines/costs, and could have done so without undue hardship

Commitment to Jail110 Article 45.048, Code of Criminal Procedure A rate of not less than $50 per period Period is 8-24 hours So at least $50 per 24 hours

Jail credit for time served111CIVIL ENFORCEMENT Article 45.047, Code of Criminal Procedure If after a judgment and sentence is entered, the defendant defaults in payment of a fine, the judge may order the fine and costs collected by execution against the defendants property in the same manner as a judgment in a civil suit112Civil Enforcement: Writ of ExecutionWrit of ExecutionLegal process of enforcing judgment by seizing and selling property of debtor

Requested by prosecutorUsually issued by clerk

Exempt property includes: home furnishing, food, farming equipment, equipment used in a trade or profession, clothes, two firearms, one motor vehicle per member of family, two horses/mules/donkeys and saddle for each, 12 head of cattle, 60 head of other livestock, 120 fowl, household pets, life insurance policies, retirement plans and IRAs, current wages

Can garnish amounts in checking/savings accountsExecution is a civil process where a defendants property may be seized and sold to pay for the municipal courts judgment of fine and costs. Execution means carrying out some act or course of conduct to its completion. Execution upon a money judgment is the legal process of enforcing the judgment, usually upon somebodys property. The execution process begins by the city attorney requesting execution usually within 30 days after the judgment if there is no request for a new trial or appeal. The clerk issues the writ of execution, which evidences the debt of the defendant and commands a peace officer to take property of the defendant and sell it to satisfy the debt. Rule 629, R.Civ.P., provides for the requirement of the writ of execution: shall be styled The State of Texas; shall be directed to any sheriff or any constable with the State of Texas; shall be signed by the clerk or judge and bear the seal of the court, if any; shall require the officer to execute it according to its terms; to make costs which have been adjudged against the defendant in execution and the further costs of executing the writ; shall describe the judgment, stating the court in which and the time when rendered, and the names of the parties in whose favor and against whom the judgment was rendered; shall attach to the writ a copy of the bill of costs taxed against the defendant in execution; and shall require the officer to return it within 30, 60, or 90 days as directed by the city attorney.

Rule 636, R.Civ.P., requires the officer receiving the execution to endorse it with the exact hour and day when he or she received it. If the officer receives more than one on the same day against the same person, he or she shall number them as received.

When an execution is issued upon a judgment for a sum of money or directing the payment of a sum of money, it must specify the sum recovered or directed to be paid and the sum actually due when it is issued and the rate of interest upon the sum. It must require the officer to satisfy the judgment and costs out of the property of the judgment debtor subject to execution by law. Rule 630, R.Civ.P. The property secured by the Constitution and laws from forced sale shall not, in any case, be held liable for the satisfaction of the debt. Article 45.202, C.C.P., says that all process issuing out of a municipal court shall be served when directed by the court, by a peace officer or marshal of the municipality within which it is situated, under the same rules as are provided by law for the service by sheriffs and constables of process issuing out of the justice court. Hence, city police officers could serve the writ of execution. Although post-judgment interest is added to all civil judgments at a rate set by the state consumer credit agency (now 10 percent per annum), there appears to be no statutory authority for post-judgment interest to be added to criminal judgments. However, since the Legislature expressly authorizes the use of civil execution against a defendants property in the same manner as a judgment in a civil suit, it appears that the cost of executing the writ may be added and collected from the defendant. 113Civil Enforcement: Abstract of JudgmentAbstract of Judgment

Lien filed on real propertyFiled with the county clerkMust be renewed every 10 yearsAn abstract of judgment is a simplified notation of basic information about the judgment and debtor, and includes the name and address of the defendant, the identity of the court that claims an interest in the judgment, the date of the judgment, and the amount of the judgment. Abstract of judgment can lead to recoveries by formally recording the courts judgment with a county clerk. Preparing and filing an abstract of judgment with the county clerk may lead to payment at a later date. Abstracts of judgment recorded by the county clerk are usually picked up and noted by consumer credit companies, who routinely peruse the minutes of the county judgment records. Real estate title companies almost always look at county judgment records before issuing title insurance policies. Title companies are reluctant to issue policies for the sale of real estate if there is an outstanding judgment abstracted and recorded against the owner of the land. 114

Effective Solutions?115

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