On This Day 13 Years Ago, 9-1-1 Call for Help found to be Non-testimonial

On November 2, 2015, The Waco Court of Appeals, in Kearney v. State, 181 S.W.3d 438 (Tex. App.—Waco 2005), found that statements made during a call to 9-1-1 to report an armed robbery in progress were not testimonial. The owner of a Western Union store heard gunshots and saw a masked man waving a gun demanding money. The owner ran out the back door to a neighboring house and called 9-1-1. The tape of the 9-1-1 call was later admitted at trial. The defendant, Kearney, argued that the call should not be admitted because under the Sixth Amendment, he had a right to confront and cross-examine the witnesses against him. The Court of Appeals said that the Kearney would have those rights if the statements made on the tape were testimonial. Because the call was to report a robbery in progress and to summon help, the statements on the call were not testimonial. The Court looked to a Houston Court of Appeals case Ruth v. State, 167 S.W.3d 560 from earlier in the year for guidance on whether statements made to a dispatcher during a 9-1-1 call are testimonial. The Court used the following guidelines from Ruth:

(1) Testimonial statements are official and formal in nature.
(2) Interaction with the police initiated by a witness or the victim is less likely to result in testimonial statements than if initiated by the police.
(3) Spontaneous statements to the police are not testimonial.
(4) Responses to preliminary questions by police at the scene of a crime while police are assessing and securing the scene are not testimonial.

So while not all statements made during a 9-1-1 call may be non-testimonial, it seems that under Ruth and Kearney that a great many would be non-testimonial as most are initiated by a witness or a victim, and not in response to police questioning.

On this Day 17 Years Ago: A New Frontier

A New Frontier

On this day, 17 years ago. The El Paso Court of Appeals held that not all “split bonds” are invalid in Frontier Ins. Co. v. State, 64 S.W.3d 481 (Tex. App.—El Paso 2001).

In the case, a defendant charged with possession of between 50 and 2,000 of marijuana. A magistrate set bail at $40,000, but set a $20,000 surety bond and a $20,000 personal bond. The defendant posted both bonds. Later, after the defendant did not appear for trial, both bonds were forfeited. The surety appealed the forfeiture saying that split bonds were invalid. The Court of Appeals held that the “split bond” was not invalid pursuant to statutory requirement that Defendant be allowed to make cash bond in lieu of surety bond.

The Court reasoned that while personal bonds and bail bonds are “distinct undertakings,” they were no mutually exclusive and incompatible. The Court was not persuaded by an Attorney General Opinion stating that a split bond was invalid. In Opinion No. JC-0215 (2000), the Attorney General one of the central arguments against a split bond was that the portion that required backing by a surety precluded the option of the defendant posting cash-which violated Art. 17.02 of the C.C.P. The Court, however, found that, in Frontier, nothing prevented the defendant from posting cash in lieu of surety. Likewise, the Court was not moved by an argument that personal bonds and surety bonds were incompatible because a personal bond leads to release “without sureties or other security” under Art. 17.03, C.C.P., and a bail bond does require security.

Keep in Mind

1. This Split Bond is not a Differential Bond

Bonds are found to be illegal when they are differential. Sometimes the term “split bond” is used interchangeably with “differential bond.” They are distinct. In fact, Frontier, has only been cited one time, and it was distinguished by In re Tharp, 251 S.W.3d 598. In Tharp, a differential bond was invalid because a trial court set bond in which a surety bond was 10 times the amount of the cash bond.

2. The “Personal Recognizance Bond” Misperception is Widespread

In light of the recent article on personal bonds in The Recorder (which I blogged about here), it was very interesting to see the Court refer to a $20,000 personal recognizance bond. Remember: that can’t exist. A person released on his or her own recognizance does not provide any security that they will show up for court–rather, they are merely recognizing their obligation to later appear in court. Personal bonds, on the other hand, are forms of security. It is not just a promise, but rather it is a person agreeing to be personally responsible for the bail amount set by the judge or magistrate should the person later fail to appear in court.

3. Your Mileage May Vary

Reasonable minds may disagree—in this case, the Court disagreed with the Attorney General. Then, the court in Tharp distinguished its matter from Frontier. The use of split bonds may not fly in your jurisdiction. Remember, if we are requiring a bond (other than personal), we generally cannot require a cash only bond (see Checklist 1-1 of TMCEC Bench Book). We are setting bail at the amount we think reasonable, and then the defendant can choose how they will post bail bond (cash or surety).
Let me know your thoughts!

Three Resources to Inform Your City about Municipal Court

We feel it is very important for courts to share information about issues related criminal justice, municipal courts, fines and costs, and the public perception of the courts with their cities. Here are three resources that you should be aware of:

1. Attend Texas Municipal League’s Annual Conference with City Staff

Not only will spending time with them give you opportunities to communicate about concerns facing the court, but you can encourage them to attend Ryan Turner’s presentation on Thursday, October 11, 2018 entitled “Between City Hall and Municipal Court: How City Officials Can Promote Public Safety and Confidence in the Legal System. The session is in room 204 of the Fort Worth Convention Center from 2:00-3:15 p.m.

2. Share TMCEC’s Webpage for Cities: C3

Last year, TMCEC began a new initiative called C# which stands for Council, Courts, and Cities. It is our goal to provide you with information that you can share with your Mayor, Council, and City Managers on a regular basis. Some of the information may be appropriate to share with editorial boards of your local newspapers or in community forums.

The main feature on the webpage now is The BriefThe Brief contains information that TMCEC thinks your city leaders need to be made aware of. You may adapt it or simply forward it to local leaders as is. Or, even better, set up a bimonthly meeting with your local leaders to educate them about your municipal court.

Currently, there are seven issues of The Brief available, all of which provide and opportunity to communicate with and educate your cities about municipal courts.

The Brief is e-blasted out to all municipal judges. The information for cities can be found at http://tmcec.com/cities/. The webpage is still being developed–check back for much more content to be rolled out this fiscal year.

3. Share the Upcoming Video “Role of the Municipal Court”

TMCEC staff attorneys have recently collaborated to update a video that getting a little long in the tooth. The script has been re-envisioned, and production is in progress. Be on the lookout for the completed project in the coming months. There will be some very good information in the video that your city could benefit from. See the following brief excerpt from the upcoming video script:

Because municipal courts are locally funded, operated, and administrated, it is easy to understand why city officials and employees may mistakenly think of municipal courts as a city department. Although municipal courts often appear in various configurations in city organizational charts, it is critically important that cities understand that there are legal distinctions between hosting a state trial court and operating, for example, a police department, a fire department, or city commission.

Municipal courts are state courts and their judges are controlled by the same rules as all other state judges.

Judicial independence entails courts operating free from the improper influence of other parts of government (including employees and officials) and both private and partisan interests. Regardless if it is in a big city or a small town or whether court proceedings are held in city council chambers or in a separate building, judicial independence involves maintaining a figurative distance between city hall and the municipal court. In the context of municipal government, judicial independence means that municipal courts must not act, or be expected to operate, as a rubber stamp for the mayor, city manager, police department, or any other city agency.

Personal Bonds: What I Learned from What You Should Read

In the latest issue (July 2018) of The Recorder: The Journal of Texas Municipal Courts, the article gracing the front page is all about personal bonds. It is informative, straightforward, and succinct. Authors Ryan Kellus Turner (TMCEC’s General Counsel and Director of Education) and Henry W. Knight (TMCEC’s summer intern and a University of Texas Law student entering is final year) taught me a few things that I’d like to share with you.

Personal Bonds are Not Personal Recognizance Bonds

Personal bonds and personal recognizance bonds (or PR bonds) are terms often used interchangeably and naturally this has created a belief that they are the same. They are not. A person released on his or her own recognizance does not provide any security that they will show up for court–rather, they are merely recognizing their obligation to later appear in court.

Personal bonds, on the other hand, are forms of security. It is not just a promise, but rather it is a person agreeing to be personally responsible for the bail amount set by the judge or magistrate should the person later fail to appear in court.

Not Every Offense is Eligible for a Personal Bond

Only a trial court can allow a personal bond for certain enumerated offenses listed in the code, including capital murder, aggravated sexual assault, and burglary. Please read the article for the full list.

Not Every Defendant can Satisfy a Personal Bond’s Specific Requirements

The Code of Criminal Procedure contains seven requirements including the following: defendant’s place of employment, defendant’s address, and the number and state of defendant’s driver’s license. These requirements would seem to mean that defendants that are unemployed, homeless, or without a license would not be able to get a personal bond.

The authors contend that these requirements limit the utility of personal bonds, and they may not equalize pretrial release for those unable to make “money bail.” This is a conversation that is sure to continue in Texas.

This is just a snippet of what I learned in the article, and I strongly encourage anyone involved in municipal courts in Texas to read it–especially in light of the new Chapter 45 requirements that municipal judges use personal bond to secure appearance for fine only misdemeanors.

Mental Health Summit, Day 2 Takeaways

TMCEC’s Mental Health Summit, Day 2 continued with the great training today. I want to share with you some more of the important points I took away from today’s sessions.

1. Empathy is Something We’re Generally Not Good With, but It is Powerful and has Its Place in Court.

Dr. Brian Sims of the National Association of State Mental Health Program Directors led a session on Trauma Informed Care this morning. It was great to hear more about this idea that we caught a glimpse of yesterday with Erin Holmes. One of the takeaways this morning was that empathy is powerful and can solid base for successful trauma informed communication. Dr. Sims used the following video I’d like to share with you:

I also found this slide about things to remember regarding trauma to be particularly useful:

2. With Regards to Competency, Courts do have Guidance

In this morning’s second session, Judges David Newell and Ryan Kellus Turner proved to be the greatest power pop duo since Hall & Oates as they led us through case law and statutes related to competency–and of course they liberally sprinkled in multiple pop culture references to keep us all entertained at the same time. Judge Newell walked us through Dusky v. U.S. and the subsequent codification of the definition of competency:

Ryan Turner, then later,let us know that the Code of Criminal Procedure tells us what to do when we don’t find a statute specifically designed for municipal courts:

We should look for guidance where we can in other general provisions and in the common law. He also advised all municipal judges to read and be familiar with Chapter 46B of the Code of Criminal Procedure, even if it is not squarely applicable.

3. Judges can be Leaders in Managing Cases Involving Mental Illness

Judge Steven Leifman of the Miami-Dade County Court, 11th Judicial Circuit of Florida shared with participants how he has worked to change the treatment of mentally ill offenders over the last 18 years. I have had the opportunity to hear Judge Leifman speak three times now, and each time I am reminded of how passionate he is about mentally ill offenders. He explains that proper treatment does not only help the mentally ill, but it in turn improves public safety, reduces recidivism, and saves money in the long run. To read more about Judge Leifman, click here.

These last two days have provided such a wealth of information. Regan Metteauer of TMCEC did a fantastic job of planning and coordinating the event. If we are able to offer a third Mental Health Summit, we hope you will attend.

Mental Health Summit, Day 1 Takeaways

Today marked day 1 of TMCEC’s 2nd Mental Health Summit, and I was fortunate to attend as a participant. After the TMCEC’s first Mental Health Summit in 2016, it became clear the topic of mental health is an important concern for municipal judges in Texas, and it deserves attention at educational programs to highlight current issues and and raise awareness of services that are currently available throughout our state. In the past two years, we have seen big changes regarding mental health under new laws passed in the 85th Legislative Session. If you were not fortunate to attend this event this year, what follows is a list of important takeaways from today.

1. The Texas Judicial Commission on Mental Health is Here

The Texas Judicial Commission on Mental Health (JCMH) was created early this year by a joint order of the Texas Court of Criminal Appeals and the Texas Supreme Court. The purpose of the commission (according to its website) is “to develop, implement, and coordinate policy initiatives designed to improve the courts’ interaction with–and the administration of justice for–children, adults, and families with mental health needs.”

The JCMH was present and supportive of today’s training. Special thanks to Judge Barbara Hervey of the Court of Criminal Appeals for being here, as well as JCMH Executive Director Kristi Taylor and staff attorney Julie Liddell for participating!

Be on the lookout for a JCMH Mental Health Summit planned for October in Houston.

2. Every Texas Municipal Judge Should Be Familiar with Arts. 16.22 and 17.032 of the Code of Criminal Procedure

Every municipal judge in Texas is a magistrate, according to statute. A good overview of the assessment process for those arrested with a suspected mental illness or intellectual disability, can be viewed on the following flowchart created by OCA. I’ve included a large picture of it, but you can click on it for an even larger version, or find it on the OCA website here.

3. SIM Mapping Can Help Your Community Create Valuable Criminal Justice-Mental Health Partnerships

SIM stands for Sequential Intercept Model and it is a tool used to help transform fragmented systems, identify local resources and gaps, and help identify where to begin interventions. In 2016, the Fort Worth Municipal Court hosted a SIM Mapping Conference, in collaboration with TMCEC. The Fort Worth Municipal Court along with Tarrant County Commissioners Court brought together 75 individuals representing the judiciary, law enforcement, social service agencies as well as local and county government. The result of the conference was a working document that identified gaps in current services and highlighted areas for future refinement. With the document, the stakeholders could begin to make change. A year later, the stakeholders reconvened to review the map, assess the improvements that had been made, and plan for the future.This collaborative process could be used by more areas to help improve mental health processes. For more information on SIM workshops, click here.

4. Mental Health Disorders are Identified Using Signs and Symptoms, and Those are Different Things

I had never heard the information given today by Dr. Randy Price, but I found it valuable and interesting.

A sign is objective evidence of a disease or disorder. It is something anyone can potentially observe.

A symptom is subjective recognition of something being wrong by the person–something only the person can tell us about.

So, the key difference between signs and symptoms is the identifier. Signs are observed by some other party. Symptoms are self-recognized.

5. Trauma-Informed Communication May Lead to More Successful Interaction and Outcomes

Erin Holmes of Responsibility.org was a wonderful speaker, and I especially like this graphic she used regarding trauma-informed communication. To me, it is very reminiscent of ideas we’ve covered in Procedural Justice. For more information on trauma-informed judicial practice, click here.

6. There is a List of Local Mental Health Authorities

If, as a Texas municipal court professional, you’ve ever wondered where mental health authorities are near you, this information will prove particularly useful. The Texas Department of State Health Services maintains a list of local mental health authorities, and there is even a search form. To find out more, click here.

Are the Days Numbered for Driver’s License Suspensions for Nonpayment?

Recently, the American Legislative Exchange Council (ALEC) published a model policy titled Resolution in Support of Limiting Driver’s License Suspensions to Violations that Involve Dangerous Driving. While the name of the resolution says plenty, here is the official summary taken from the resolution:

A person whose driver’s license is suspended will often find it more difficult to earn a living and therefore pay the debt they owe to the government. The number of individuals with a suspended license also places a burden on the limited resources of law enforcement. This resolution encourages state policymakers to revise laws to limit driver’s license suspensions imposed for violations against the government to conduct that involves offenders with dangerous driving such as drunk driving or multiple moving violations.

If this reasoning garners enough support, it could lead to the elimination of some programs in Texas that are widely used. First of all, the Driving Responsibility Program (DRP) would be squarely targeted. The DRP began in 2003 as a system to increase public safety and to fund trauma care that, until that time, was uncompensated. Many of us in the court system know the DRP as “points and surcharges” that layer additional fees due to DPS on top of fines and costs already paid as part of a criminal judgment. Those that don’t pay surcharges (and many, if not most, do not pay—the most generous estimates show that roughly half are paid, with other reports showing a much smaller portion being paid) face a driver’s license suspension. Issues with notification and a lack of information regarding amnesty provisions lead to many drivers operating their cars without a valid driver’s license either intentionally or inadvertently. This, in turn, can lead to more criminal charges, fees, costs, possible arrest and, yes, even more surcharges. Critics of the system feel that it can place people in a hole that is nearly impossible to crawl out of. Other than trauma center funding, the DRP does not seem to enjoy broad support. Efforts to repeal the DRP (most recently HB 2068 in 2017) have failed.

While the ALEC resolution  reflects a national viewpoint, similar thought is growing in Texas. On May 11 of this year, there was a convening of stakeholders regarding driver’s license suspension and recovery policies. While listening to the varying viewpoints, it became clear that many want to do away with not only the DRP, but also the Failure to Appear/Failure to Pay program better known as OmniBase. The reasoning is similar to what is posted in the ALEC summary above—OmniBase causes driver’s license suspensions for behavior that may have nothing to do with dangerous driving. While that may be true, OmniBase provides a great option for many courts in Texas both large and small.

Prior to programs such as OmniBase and the Scofflaw programs, courts did not have what we often refer to as “passive enforcement” mechanisms to enforce judgments. OmniBase allow courts to flag driver’s licenses of those defendants who have not appeared or paid for a couple of months. This flag does NOT suspend the license. In fact, it may do nothing for six years. If the defendant does not appear or satisfy the judgment, then when his or her license naturally expires, they will be unable to renew the license until they appear in court or satisfy their judgment, and pay a $30 Omni fee. For small courts—especially those that may operate without a police department or jail—this program can work well. It provides an option other than arrest and/or jail to enforce compliance. Additionally, under recent changes in 2017, defendants have many more ways to avoid the Omni fee, including a prohibition of the fee for any defendant found to be indigent.

What are your thoughts? Should driver’s license suspensions be used to enforce judgments in programs like Texas’ OmniBase? Should the DRP be repealed? Please share your thoughts and let me know if your court uses OmniBase.

Walk-In Docket Success in Texas

Many courts in Texas enhance the administration of justice in their jurisdictions through the use of walk-in dockets. Walk-in dockets refer to the practice of courts designating specific times for defendants to show up to see a judge or appropriate court personnel regarding charges against them. While defendants are still given a scheduled court date on their citation or summons, an available walk-in docket “makes the court more defendant friendly,” according to Janis Fletcher, Court Clerk for the City of Sherman. At these walk-in dockets, defendants may be able to see a judge to enter a plea, request a payment plan, inform the court of difficulty with satisfying the judgment, or for an indigency determination. Allowing defendants an option where they have some measure of control as to how and when they resolve their cases can lead to increased confidence in the judiciary and, as Janis Fletcher says, “more cases being closed.”

I polled representatives of a dozen Texas municipal courts who were willing to share information about their walk-in dockets and the success they have seen in their cities.

Scheduling

All of the courts that have implemented walk-in dockets tailor them according to the needs of the community as well as the demands and constraints of court staff. The city of Woodway has found that a weekly walk-in docket on Wednesday mornings is sufficient, according to Court Administrator Malia Elkins. Other municipal courts, such as those in Amarillo and Luling, offer times every day when defendants may walk in to see the judge. According to Court Administrator Kim Pekofske, Lancaster Municipal Court offers monthly walk-in dockets with some additional Saturday dockets during warrant round-up.

Getting the Word Out

The most well-intentioned court’s walk-in docket will prove useless if the public is unaware of its existence. Courts use many different tactics to ensure that court users know about the availability of the docket and what can be handled there. In Woodway, citizens are made aware through multiple means including notices on citations, website, collection agency letters, information sheets, and receipts. In Lancaster many of the same methods are used and they also post notice in the court lobby during open court dockets, give notice at the clerk’s window, and through the marshal’s office. In Sherman, defendants are told of the walk-in dockets anytime they contact the court in any manner. In small towns such as Wilson, Idalou, and Petersburg, staff tells defendants when they call and inquire and can also rely partially on word of mouth, as Judge and Prosecutor Jan Blacklock Matthews says “everybody knows everybody and everything.” Once walk-in dockets are established and in practice for a number of years, they can become an institution. According to Court Administrator Victoria Medley, “Amarillo Municipal Court has had the current walk-in schedule for 14 years. It is also posted on-line and attached to all court correspondence emails/mail.” In Midland, the practice has been in place for even longer. According to Presiding Judge Sharon Hatten, “having open walk in sessions is not something new for the City of Midland Municipal Court.   The daily open session times have been the same for 30 years.  In these sessions, defendants have the opportunity to appear before a judge to discuss their rights and options for cases pending in the Municipal Court.”

Results after Implementation

Courts that can remember a time before offering walk-in dockets have witnessed impressive results. Seguin has offered walk-in dockets for the last ten years. Prior to that, defendants were only allowed to see a judge if they were on a docket. According to Court Administrator Landra Solansky, “defendants seem to like the fact that they are allowed to appear any Tuesday before their scheduled appearance date.” Court Coordinator Cara Everts of Midland says “by making our court more accessible to defendants, we have experienced higher rates of compliance.  More people come in, get their citations resolved, and get to experience a justice system in which they are treated fairly and respectfully.” Handling cases at a walk-in dockets can also ease the burden of other dockets crowded with cases. In Addison, their “formal first appearance dockets are much smaller, and the case gets resolved much quicker.  People seem to be much happier once someone has listened to them and explained options, according to Court Administrator Paula Dale.

Implementing in Your Court

Establishing an effective process takes time and careful planning. Courts should consider the needs of the community and the availability of staff. The greatest challenge in setting up a walk-in docket is generally time—staff time, judge time, docket wait time. Courts may only have a judge available on certain days that will limit when a docket may be offered. Also, walk-in dockets could lead to large numbers of defendants showing up for multiple reasons, slowing the pace down as necessary paperwork is printed and prepared. Courts should prepare some pilot walk-in dockets and adjust accordingly.

After initial challenges are overcome, courts should begin to see meaningful benefits from this service. Judge Bonnie Townsend said it well: “My thought on the walk-in docket is that it equals access to justice, and if we as public servants want the public’s trust and confidence, then we must earn it.”

What is the greatest benefit to your city and/or the public in offering walk-in dockets?

I think the greatest benefit from a walk-in docket is accessibility to justice. Our citizens and folks from out of town appreciate that the judge is available on a regular basis and do not have to wait two weeks or a month to be seen. We are moving cases along more quickly than those that do not see people on a daily basis. –Bonnie Townsend, Presiding Judge, City of Luling

Many people can take care of their business with the court on their own time.  Shorter wait times. Faster resolutions. Continued case activity. –Sharon Jennings, Municipal Court Administrator, City of Corsicana

The public is allowed to appear in Court when it is convenient for them. –Landra Solansky, Court Administrator, City of Seguin

Accessibility to Judges and the court system. –Victoria Medley, Court Administrator, City of Amarillo

The biggest advantage is giving the defendant more options to resolve their cases and easy access to the court. –Kim Pekofske, Court Administrator, City of Lancaster

If the matter can be resolved without a hearing then the person does not have to return thus saving their time away from work etc. – Paula Dale, Court Administrator, Town of Addison

Procedural Justice in a Video Nutshell

This week, in Austin, about 20 municipal court leaders were able to spend a couple of days with Emily LaGratta of the Center for Court Innovation to discuss how Procedural Justice can lead to the more successful administration of justice in Texas municipal courts. Emily did a wonderful job leading an interesting, energizing, and useful discussion. It was a wonderful time to hear about the great things happening in Texas municipal courts, to reflect on our challenges, and  to generate specific ideas for improvement. One of the resources shared with us is this video that quickly and clearly answers the question: What is Procedural Justice? We were encouraged to watch and think about how our courts provide understanding, neutrality, respect, and voice to our court users–and also to consider what can get in the way of us providing those things in our courts. I encourage you to do the same.

Procedural Justice (or Procedural Fairness) has been mentioned several times on this blog and multiple times over the last several years in TMCEC programs. For more related information, read about the four elements of procedural fairness, the importance of fair procedures vs. fair outcomes, and appearing to do justice.