TMCEC’s 2023 Prosecutor Seminar is Approaching!

A well-informed prosecutor that stays apprised of changes to the law and follows established best practices improves the efficiency of justice.

TMCEC is hosting the first of two AY23 Prosecutors Seminars February 22-24, 2023 at the Holiday Inn Riverwalk in San Antonio.

Since 1992, TMCEC has offered specialized continuing legal education to prosecuting attorneys who serve in municipal courts across the state. Currently, more than 700 attorneys licensed in Texas prosecute in municipal courts. The TMCEC Prosecutors Seminar is uniquely designed to help prosecutors and other attorneys stay abreast of information necessary to maintain professional competence.

The TMCEC Prosecutors Seminar is open to prosecutors of all experience levels. Topics include trial skills, legislative and case law updates, case management, and more! You may view the current agenda here. Attendees are eligible to receive up to 14 CLE hours (including 2 hours of ethics). See the tentative agenda below.

If you are a municipal judge or clerk, TMCEC encourages you to share the conference flyer with your court’s prosecutor(s) and/or city attorney(s)! Seminar registration fees are $250 (including CLE reporting) and $50/night for a private, single occupancy room at the Holiday Inn. Register today at register.tmcec.com! Questions? Contact TMCEC at info@tmcec.com or 512-320-8274.

From general information about TMCEC’s Prosecutors program, visit www.tmcec.com/programs/prosecutors/.

The Supreme Court Issues 59th COVID-19 Emergency Order

On December 30, 2022, The Supreme Court Issued the 59th COVID-19 Emergency Order. The order goes into effect on January 1, 2023 and expires February 1, 2023. Of note, all courts in Texas may allow or require a participant to participate remotely, such as by teleconferencing, videoconferencing, or other means.

Municipal courts may not require a participant (lawyer, party, or juror) to appear remotely for a jury trial unless the court has considered on the record or in a written order any objection or motion related to proceeding with the jury trial at least seven days before the jury trial, or as soon as practicable if the objection or motion is filed within seven days of the proceeding.

The full order is available below.

Financial Responsibility Through Auto Insurance

Whether it be for the purposes of a Failure to Maintain Financial Responsibility (FMFR) charge or to determine eligibility for a driving safety course (DSC), municipal courts in Texas are frequently presented with paperwork that a defendant believes shows their financial responsibility through motor vehicle liability insurance. At the TMCEC Central Texas Regional Judges and Clerks Seminar in Austin last month, multiple discussions broke out about best practices for municipal courts to validate whether such paperwork indeed shows that the defendant was or is covered. Courts generally need to assess the provided evidence of motor vehicle liability insurance on a case-by-case basis as the policies defendants present to courts vary greatly. Thankfully, there is statutory authority to guide these assessments.

Subchapter D of Chapter 601 of the Transportation Code (“Establishment of Financial Responsibility Through Motor Vehicle Liability Insurance”) lays out the requirements. The policy must be either an owner’s policy or an operator’s policy. An owner’s policy is tied to a specific vehicle and covers the vehicle’s owner and anyone operating that vehicle with the owner’s permission. An operator’s policy is tied to an individual and covers the policyholder in any vehicle they operate. Operator’s policies are usually held by individuals that do not own a vehicle. There is no requirement in Subchapter D that the policy be “in the defendant’s name.” Owner’s policies cover people whose names are not listed on the policy. Courts should confirm, however, that a defendant is not expressly excluded from coverage in the specific policy.

TMCEC recognizes the difficulty municipal courts face when a defendant provides an owner’s policy that covers a vehicle that the defendant does not own. In these cases, follow-up questions may be warranted, such as whether the covered vehicle is owned by a family member of the defendant or whether the policy covers the vehicle that the defendant most regularly uses. Section 601.076 of the Transportation Code includes within the required terms on an owner’s policy that it cover a vehicle and pay on behalf of the named insured or another person who uses the vehicle with express or implied permission. Additionally, Section 601.054 states that evidence from an owner shall be accepted for a driver that is an employee of the owner or that is a member of the owner’s immediate family or household.

Recent legislation might also help. H.B. 1693 (2021) gave municipal courts authorization to access TexasSure, which is the program law enforcement typically uses to determine a motorist’s insurance status during a traffic stop. TexasSure is limited, however, in that it cannot provide a person’s insurance status on a previous date. Thus, TexasSure might prove most helpful for the purposes of DSC where courts need only ascertain the defendant’s insurance status at the time of the request. Its utility may be limited in the context of FMFR charges where the question is whether the defendant was insured at the time they were cited.

TMCEC Welcomes Thomas Velez as Program Attorney!

Mark Goodner sat down with Thomas Velez to discuss Velez joining the TMCEC team.

MG: Well, we are approaching the end of week one with you as a member of our team here at TMCEC. Let me again reiterate how thrilled we are to have you onboard. How is everything going so far and what’s your focus been this first week?

TV: Honestly, it’s been a relief. Everybody is kind and welcoming and the scope of the work is fascinating. I feel like my focus this first week is getting to know my new colleagues, learning the language here at TMCEC, and figuring out how my experience can be useful to us and our constituents.

MG: That’s great. It sounds like you’re hitting the ground running! This blog post will, in some ways, serve to introduce you to our constituency. I’d like them to know that you’ve been an attorney for over 10 years, mostly working as a prosecutor focusing on domestic violence cases. In addition to that, what would you want our constituents to know about you—either regarding your work experience or personally or both?

TV: I have spent my career as a trial attorney – in the district, county, and municipal courts.  I think I would really like everybody to know that I am truly a nerd at heart. If I could study all day for a living and then talk about what I learned that is what I would do; so, I think that is why being with TMCEC feels so perfect.

MG: I agree. That is perfect! Next week, you will be in attendance to observe New Judges and New Clerks seminars. I know that will be a lot of information to absorb even for someone as knowledgeable and experienced as you. What do you plan to focus on in the coming weeks and months as a new team member for TMCEC?

TV: My passion is for how things operate in the real-world and so my goal is to really demonstrate to our constituency that their experience is seen and heard. My focus for the near future is lots of learning. And I learn by doing so that means I will really be trying to go feet first into as much as I can. The team here is brilliant and they are responsible for so many amazing resources. I am excited to hopefully contribute to their library of success in an essential and meaningful way.

MG: I appreciate you taking the time to chat with me today. Hopefully, our constituents will read about you and introduce themselves to you soon at an upcoming event!

Poker Clubs and Municipal Court

In Texas, gambling is illegal. Gambling is so illegal, in fact, that allowing charitable raffles at rodeos required Texas to amend its Constitution. See, Tex. Const. Art 3, Sec. 47 (d-1), Proposition No. 1, Nov. 2, 2021. Chapter 47 of the Penal Code clearly sets out a prohibition on, effectively, all gambling. Tex. Pen. Code § 47.02. Given this, one might wonder about the gambling clubs opening in several cities.

An affirmative defense exists in Chapter 47. Gambling is not illegal if: the gambling occurred in a public place; no person received any economic benefit other than personal winnings; and except for the advantage of skill or luck, the risks of losing and the chances of winning were the same for all participants. The poker clubs which have opened in cities in Texas operate under the theory that they are legal under Chapter 47 because they are private clubs, charge a membership fee but do not take a cut of winnings, and the games do not favor any player other than through skill or luck. Whether this is true is a legal question.

The Texas Attorney General has declined to issue an opinion on this question, pending the outcome of a case which has brought this before the Texas Supreme Court.

Many cities in Texas have considered whether to issue certificates of occupancy for gaming clubs. In Dallas, one club, The Texas Card House, applied for a certificate of occupancy, and the certificate was granted. Then it was revoked, reinstated, and revoked again. The matter has now been appealed to the Fifth Court of Appeals in Dallas. Depending upon the outcome of the Texas Card House v. Espinoza case, cities which granted these certificates may seek to enforce their zoning ordinances though any available means. Beyond the criminal enforcement of zoning ordinances, prohibited gambling under Penal Code Section 47.02 is a class C misdemeanor. Although these may not yet have found their way to municipal courts, there is a very real possibility that they will, depending upon how courts decide this point of law.

C3 (Councils, Courts, and Cities) Turns Five

Mark Goodner sat down with Ryan Turner to discuss C3 and the upcoming Fines and Fees Exposition and Showcase. Eligible participants at the event can receive reimbursement for travel and meals consistent with TMCEC’s grant terms.

Mark Goodner: Ryan, can you believe it’s been five years since our public information and education campaign C3 (Councils, Courts, and Cities) kicked off? Time flies, but we have now published 24 issues of The Brief, and next month will be our fifth annual exposition and showcase—this one being a revisit to our Fines and Fees topics from 2019. For those unfamiliar with C3 and its history, what can you tell them about the impetus that brought it about?

Ryan Kellus Turner: C3 was born from the realization that municipal courts occupy a unique role in local government and in the Texas judicial system.  While TMCEC does its best to ensure that municipal judges and court personnel have the information and resources necessary to do their jobs, it is equally important that city officials and people who work in city hall understand their role in ensuring that justice occurs in municipal court.  There is a lot of specialized information.  C3 bridges the information gap by providing information resources that benefit city councils, courts, and cities throughout Texas.

MG: Over the years, I do think the topics covered in The Brief have really helped to bridge the gap between city halls and municipal courts in Texas. I think the two issues from January and March of 2020, Regarding the Appointment of Municipal Judges, are particularly helpful, along with the April 2021 issue on Official Oppression. Is there any issue of The Brief that really stands out to you as remaining particularly helpful?

RKT: Probably the issues having to do with judicial independence.  It is not a topic with obvious relevance to city hall. However, it does relate. Cities are encouraged to be mindful of public perception and take steps to promote public confidence in their municipal courts through judicial independence and judicial accountability.  

MG: I agree. I think there are several that continue to be great resources to help educate city officials—particularly if they are new to the position. I am looking forward to next month’s Fines and Fees Exposition and Showcase [participants can register here]. It feels like we are in a different position than we were in May of 2019, the first time we had this event. We’ve been through a pandemic which perhaps drew financial concerns into sharper focus for many Americans as well as most municipal courts. What are the most significant changes to fines and fees in your mind in the last three and a half years? Are there any new concerns that didn’t exist pre-pandemic? Any concerns from the the time of the first C3 conference that don’t seem as pressing anymore?

RKT: Conversations regarding “hot topics” in criminal justice in Texas tend to be ongoing. In terms of changes in laws regarding fines and fees, we now have more than three years of experience using statutes that provide defendants with more procedural safeguards and judges more latitude to do individual justice in individual cases. These laws, and what we have accomplished in Texas, have received national recognition across the ideological spectrum. While concerns about ensuring the fair and proper imposition of fines have not gone away, in part because of changes in the law, and changes court procedures, there is less public clamor and more public interest.

MG: Thanks for chatting today, Ryan. Everyone should tune in for Ryan’s webinar tomorrow (November 10, 2022) and register today for Fines and Fees Exposition and Showcase! As a reminder, eligible participants can receive travel reimbursement consistent with TMCEC’s grant terms! If you attend, we hope you will consider submitting questions and concerns related to fines and fees on this google form. These issues will be addressed by TMCEC at the Q&A session at the event!

New Rules—Do They Apply?

On November 1, 2022, the Office of Court Administration (OCA) announced via email that the Supreme Court of Texas and Court of Criminal Appeals approved amendments to the Texas Rules of Civil Procedure (TRCP), Texas Rules of Appellate Procedure (TRAP), and Texas Rules of Judicial Administration (TRJA). These changes, among other things, relate to certain courts providing their local rules, forms, and standing orders to OCA. Beginning January 1, 2023, such rules, forms, and standing orders are not effective unless published on OCA’s website. Following OCA’s email, TMCEC fielded multiple questions from municipal courts inquiring whether the amendments applied to them. It is TMCEC’s view that they do not.

Rule 2 of the TRCP states that the TRCP applies to “procedure in the justice, county, and district courts.” Rule 1.1 of the TRAP states that the TRAP applies to “procedure in appellate courts and before appellate judges and post-trial procedure in trial courts in criminal cases.” While the TRJA applies to municipal courts, its recent amendments are only meant to implement the changes to the TRCP and TRAP.

Although a reading of the expansive language of these changes may suggest they could apply to municipal courts, TMCEC has historically maintained that the TRCP generally do not apply to municipal courts because municipal courts are not included in Rule 2. This, however, could be an evolving procedural area. Municipal judges and court personnel have often asked: “If the TRCP do not apply to us, what rules govern?” Approaches to civil proceedings vary in municipal courts throughout Texas—some have promulgated local rules, some choose to follow the TRCP, and some do neither.

A TMCEC Civil Rules Workgroup recently concluded a lengthy review of the civil procedures that apply to justice courts as a basis for the development of civil rules governing certain enforcement actions commenced by municipalities in civil cases over which municipal courts have jurisdiction. TMCEC shared the proposed rules with municipal judges and prosecutors to solicit feedback for the workgroup. After reviewing the feedback, the workgroup submitted proposed rules to a subcommittee of the Supreme Court Advisory Committee. Stay tuned to see what, if anything, comes to pass regarding new rules or new application of existing rules to certain civil proceedings in municipal courts.

While TMCEC does not conclude that the amendments OCA publicized last week apply to municipal courts, they (or comparable ones) could in the future.

Texas Supreme Court Issues 57th Emergency Order

On October 31, 2022, the Supreme Court of Texas issued the 57th Emergency Order, which is effective immediately and renews the 55th Emergency Order through 2022. The 57th Emergency Order makes no substantive changes to the 55th Emergency Order. Notably, Texas courts are still, subject to constitutional limitations, permitted to conduct virtual proceedings without participants’ consent. Also, municipal courts still must not require lawyers, parties, or jurors to appear remotely for jury trials unless the court has “considered on the record or in a written order any objection or motion related to proceeding with the jury proceeding at least seven days before the jury proceeding or as soon as practicable if the objection or motion is made or filed within seven days of the jury proceeding.” As a reminder, the latest Emergency Orders do not give courts authorization to modify or suspend court-related deadlines. The full text of the 57th Emergency Order is accessible using the hyperlink above, or is embedded in full below.

For best practices and guidance on conducting in-person and remote court proceedings under the 57th Emergency Order, visit the Office of Court Administration’s Court Coronavirus Information webpage.

AY23 Highlight: Dangerous and Mistreated Animals

Mark Goodner and Ben Gibbs took a moment to discuss a topic from the 2023 Academic Year curriculum.

Mark Goodner: Ben, it’s been a whirlwind start to our 2022-2023 Academic Year. Last week, we held our East Texas Regional Clerks and Judges Seminars. It was such a wonderful audience and a great start for TMCEC. One of the classes you taught last week (and will continue to teach) is “Dangerous and Mistreated Animals.” As you prepared this class for municipal court personnel, is there one idea that you tried to highlight?

Ben Gibbs: Yes. There are two overarching ideas in this class, as I see U First, there is the regional theme this year. Court is back in session, and we are emerging from quarantine like the first buds of spring. Many courts have not held any form of in-person hearing or trial in nearly two years. It’s good to be reminded of the processes, and particularly the ones that we didn’t see every day before 2020.

And on that subject, these are mostly civil processes. I know it can be intimidating to be confronted with a case that just doesn’t fit into the usual mold we expect in municipal court, and my goal is to give resources, more than to drill procedure. Animal hearings are difficult enough, what with the emotional aspects involved. With a careful and reasoned approach, I think the procedural difficulties can be overcome. You don’t have to know everything if you know where to find it.

MG: Thanks, Ben. When preparing to teach, I usually learn new things about a topic as I prepare a session—or sometimes I remind myself of something I may have forgotten! What did you learn (or remember) as you put this class together?

BG: The procedural distinction between dogs that attack persons and dogs that are found dangerous for other reasons was always hazy for me, working in municipal courts. As a clerk, I had trouble getting up to speed, as everything seemed so different and we handled so few of them (thank goodness). As a prosecutor, I only came across a handful of these cases and never had to deal with any serious dog bite cases. It took some review for me to be sure I was clear on the procedures.

MG: We are just a couple of weeks away from our Central Texas Regional Seminars in Austin. Do you have any specific goals for this class the next time you present it?

BG: With this kind of case, it’s not a question of if, but when you will see one. If I can make attendees feel a little more at ease and ready to locate resources in a pinch, I feel I’ve succeeded. Ideally, Judges and clerks should be able to concentrate on doing justice instead of combing statutes in a blind panic. I want to get that information across to the class clearly.

MG: Thanks, Ben!

Supreme Court Issues 55th Emergency Order

Yesterday, the Supreme Court issued the 55th Emergency Order. The order goes into effect September 1, 2022 and expires November 1, 2022, unless extended by the Court.

Of note, municipal courts may continue to use reasonable efforts to conduct proceedings remotely, but courts may not require a lawyer, party, or juror to appear remotely for a jury trial unless the court has considered any objection or motion related to the proceeding at least seven days before the jury proceedings or as soon as practicable if the objection or motion is made or filed within seven days of the proceeding. This language is similar to language we saw in the 51st Emergency Order.

To read the full order, click on the link above or a copy is inserted below.