Judges and the Ethics of Fundraising

Fundraising by judges can be a tricky business. Judges may participate in activities outside the court, but many charitable and civic-minded organizations rely upon donations from the public to run. Participation in worthwhile organizations that depend on fundraising for support is a continuing dilemma for judges.

First, an elected judge may raise funds for election, if following applicable election finance laws. Canon 7; Office of Court Administration Judicial Ethics Opinion 55 (1981). However, a judge may not hold a fundraiser for operating or living expenses. Op. 55 (1981); Canon 5, 4b(1).

Canon 4C of the Code of Judicial Conduct describes a judge’s appropriate participation in extra-judicial activities. A judge may participate in civic and charitable activities that do not reflect adversely upon the judge’s impartiality or interfere with the performance of the judge’s duties. This includes serving in a leadership capacity in such an organization. However, Canon 4C(2) of the Code of Judicial Conduct prohibits any type of participation, or lending the prestige of judicial office, in soliciting funds no matter how worthy the purpose. Op. 58. A judge should not solicit funds for any educational, religious, charitable, fraternal, political, or civic organization or use or permit the use of the prestige of judicial office for that purpose. A judge should not be a speaker or guest of honor at a fundraising event, but may attend such events. There is a further restriction, that a judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before that judge’s court, or be regularly engaged in adversarial proceedings in any court.

There is one exception, however. A judge may raise funds for an organization that is “devoted to the improvement of the law, the legal system, or the administration of justice.” Even in raising funds under this exception, a judge should still be guided by Canons 1 and 2, and should be clear that such participation is as an authorized representative of the organization, and not for the judge personally.

TCCA Highlight: Pat Riffel 

Mark Goodner sat down with Pat Riffel to discuss the Texas Court Clerks Association (TCCA). 

MG: Pat, first of all let me say congratulations again for being named the TMCA Outstanding Clerk of the Year at the recent TMCA Annual Meeting. I know you don’t want me to mention that, but I am so happy you were recognized. You deserve it! You have always been very involved in TCCA, TMCEC, and Clerk Certification Program. Recently, on this blog, I talked to Jennifer Bozorgnia about her certification process, how it helped her, how it helps the clerks she supervises, and what advice she would give to clerks beginning the process. I am interested in your thoughts on all of those topics, so thanks for taking the time to discuss that with me.

PR: Thank you so much for the kind words—it was truly an honor to be recognized by this group of judges, prosecutors, and clerks!  As I mentioned at that meeting—I don’t do any of what I do on my own—”it takes a village”, “no man’s an island”, etc.  And my Island/Village is the people from TCCA and TMCEC!

MG: TCCA (and TMCEC) are not just about certification. What would you tell clerks about getting involved in TCCA chapters—even if they might not be interested in certification?

PR: Even if certification is not on your radar (but we might be able to convince you,) TCCA is an invaluable tool.  The benefits are many and-long standing. TCCA is a networking jewel. My first TCCA meeting was in 2003, and I still rely on the people I met in Austin that week! The theme was something about Orchids—which made absolutely no sense to me—and I only went because I was fairly new to the field and just needed to know what was going on!!! If you know me at all—you realize I MUST be in the know! I believed then, and still believe, that you can’t be proficient in a system you don’t understand—and to understand, you need to learn and involve yourself.

 MG: What would you say is the most significant benefit of someone getting involved in TCCA? 

PR: TCCA’s most valuable asset is its people—the networking, support, advice, and direction offered freely and happily by other clerks has been an amazing experience.  I have worked in three very distinct professional fields, and TCCA is by far-the most welcoming and helpful. There is no competition—we aren’t there to best each other—but to truly help one another.   TCCA offers a mentoring program for New Clerks and for those working on Level 3—just taking the networking into a more formal realm.

TCCA offers a myriad of educational opportunities. The best piece of advice I ever got was in High School when a teacher advised me to “never pass up an educational opportunity if it’s handed to you!”

This was when I was struggling with the possibility of attending college as the first in my family to do so! I took the opportunity and have lived by that philosophy ever since.  There are so many free opportunities offered by TCCA, formally, or through the network.

Also—TCCA will help you communicate with your city administration.  We have done salary surveys, as well as justification for certification position papers that help you aid your city in understanding your worth.

MG: You have been such an influential voice in TCCA. I know that many TCCA members and officers may be looking to transition to retirement in the not-too-distant future. What can you tell us about the future of TCCA? Do you envision changes? 

PR: Currently, one of the main focuses of the TCCA board and Education Committee has been the need for succession planning. We have worked too hard and too long to give this profession the status it has reached. We would be amiss to believe that others can’t keep it going—we just need to find those others—and we are on a quest to do so—WE NEED YOU!

TCCA is looking at a restructure of the organization into regions.  We envision the current chapters becoming regions. They would not need to have their own board, would not need to be concerned with filling offices, but would still hold regional meetings, regional education, etc.  It is a clearer way to connect us all together.

Further, though you know I am not always a fan—virtual education will forever have a place in our education system. It has been a really good fit for study sessions and for general informational sessions.   I envision a hybrid system of educational delivery.

MG: If someone is involved—or even just considering getting involved—in TCCA, what would you tell them? How could they get involved? And how could they take on a leadership role, if they wish to do so?  

If you want to get involved LET US KNOW! 

I would first suggest you attend meetings, conference, virtual education etc. Put yourself out there-talk to people about the association. Almost all of us attend TMCEC regionals or special classes. There are always TCCA people there, either at a table or in the room. Talk to them! We are a chatty group and would love to visit with you.

We can help you explore where your skill set fits. The time required depends on the committee and role you take, but we have something to fit your needs.  As mentioned earlier: we need fresh, young faces willing to learn and grow as we plan for succession and further success of the organization.

MG: Thank you so much Pat. Those looking for more information can find it on the clerk certification page of the TMCEC website. The TCCA website is an abundant source of information, as well. 

Municipal Court Week: November 7-11, 2022

Municipal Court Week is a time to appreciate the dedicated individuals that comprise the Texas municipal judiciary. It is also a great opportunity to share with the public the important role that local courts and their personnel play in preserving public safety. Every city celebrates in their own unique way.

TMCEC encourages all municipal courts to start planning now to make the most of this special time. The Municipal Court Week webpage is full of ideas and resources including photos and activity lists for cities’ past celebrations.

If your city has not celebrated before or is seeking more personalized assistance, TMCEC’s TxDOT Grant Administrators, Liz De La Garza (elizabeth@tmcec.com) and Ned Minevitz (ned@tmcec.com), can help! Simply shoot them an email saying you’d like to set up a phone call to discuss Municipal Court Week.

This Month in Case Law History: Sabine and Individual Liability for Officers of Corporations

31 years ago this month, a the Austin Court of Appeals reached a decision in a case cited in Chapter 15 of the TMCEC Bench Book (Corporations and Associations). Sabine Consol., Inc. v. State, 816 S.W.2d 784 (Tex. App.—Austin 1991, pet. ref’d) was decided on August 28, 1991. 

In September 1985, two construction workers employed by Sabine Consolidated, Inc. (Sabine), a construction company, were killed when a trench they were working in collapsed. The State filed complaints against Sabine and its president, alleging criminally negligent homicide, on a theory that the accused failed to adequately shore and slope the trench, which caused the workers’ deaths.  

Sabine’s president argued that Tex. Pen. Code § 7.23 was unconstitutionally vague as to liability of officers of corporations. § 7.23(b) states that an agent having “primary responsibility” for the discharge of a duty to act imposed by law on a corporation or association is criminally responsible for omission to discharge the duty to the same extent as if the duty were imposed by law directly on him. Sabine’s president argued that the term “primary responsibility” is vague and indefinite. The Austin Court of Appeals disagreed, holding that the term was not unconstitutionally vague or indefinite, and that the term was given its ordinary usage. The Court upheld the law imposing individual criminal liability for acts committed on behalf of a corporation or association.  

Criminal law practitioners in Texas should be familiar with § 7.23. So should anyone that works in municipal court: corporations may be charged for violations of class C misdemeanors. An agent who has primary responsibility for the discharge of a duty, such as one imposed by a city ordinance may be charged in addition to any charge against the corporation. The decision to charge the agent, the corporation, or both, is left to the prosecutor, who must seek not to convict but to see that justice is done. 

From the 800 Line: Community Service and Jail Credit Rates

Art. 45.041 of the Code of Criminal Procedure tells us, in part that the “the judgment and sentence, in case of conviction in a criminal action before a justice of the peace or municipal court judge, shall be that the defendant pay the amount of the fine and costs to the state.” Although this is the judgment and sentence, we know that is not always the method of discharge of a judgment. Some refuse to pay. Many can’t afford to pay. There are two primary avenues of defendants to discharge or satisfy a judgment without payment. Often classified as “non-cash credit” within court software, the two methods were community service and jail credit. Both of these have gone through substantial change in the last handful of legislative sessions. It comes as no surprise that we have received recent calls asking: What are the current rates for Community Service and Jail Credit?

For a number of years, both jail credit and community service utilized the same number—when  assigning jail credit or community service before September 1, 2021, the minimum value to be credited was set by statute and was the same. One “unit” of either (8 to 24 hours of jail credit, or 8 hours of community service) were to be credited not less than $100. 

However, the 87th Legislature spoke and tipped the balance. As of September 1, 2021, one unit (8 to 24 hours) of jail credit must now be credited at $150. Art. 45.041, C.C.P. Eight hours of community service must still be credited as not less than $100. Art. 45.049(e), C.C.P. The amounts specified in these statutes are minimums, not maximums. Courts may still assign a higher value to either kind of credit if it is fair and serves the interest of justice.

Is Technology the Answer to Speeding Fatalities?

According to the National Highway Traffic Safety Administration, speeding caused 11,258 United States traffic fatalities in 2020. Some traffic fatalities may simply be unavoidable. For example, a cautious, law-abiding driver hits a patch of invisible black ice and loses control of his vehicle. Speeding fatalities, on the other hand, are the result of a conscious choice made by drivers. This has led some traffic safety stakeholders to suggest a simple solution: make it impossible for drivers to make the choice to speed.

While this countermeasure is not currently gaining any significant traction in the U.S., the European Union (EU) has recently taken an initial step to make it a reality. Beginning in 2024, all new cars in the EU must be equipped with “Intelligent Speed Assistance” (ISA). ISA is not a speed governor that caps a vehicle’s speed capability. Rather, it is a series of optical and vibrational warnings that activate when an operator is traveling too fast. In some situations, the technology will automatically reduce the vehicle’s speed, but such automation is overridable by the driver.

ISA is an option on many vehicles manufactured worldwide. But governments (including in the United States) have generally stopped short of requiring it and other traffic safety technologies on new vehicles. This makes the EU’s recent mandate a monumental step in the global struggle to reduce traffic fatalities. Will the United States follow in the EU’s footsteps? Will speeding fatalities one day be nonexistent? Will vehicle technologies cause a drastic shift in the types of cases Texas municipal courts most often hear? As we often say at TMCEC: stay tuned.

Resource Highlight: Cash Bond Refund Form from OCA

Section 13 of S.B. 6, known as the Damon Allen Act, added Section 17.53 to the Code of Criminal Procedure requiring OCA to develop statewide procedures and prescribe forms to be used by a court to facilitate the refund of any cash funds paid toward a monetary bond, with an emphasis on refunding those funds to the person in whose name a receipt described by Article 17.02 was issued; and the application of those cash funds to the defendant’s outstanding court costs, fines, and fees.

OCA has indeed created that form. Information regarding the form and these procedures can be found here, as well as below.

The clerk of the court shall make this form available for no charge to the requestor after final disposition of a criminal case. 

The procedures as listed on the page also mention fees that can be charged to compensate “the county” for expenses in handling the funds. This begs the question for municipal courts: Can municipal courts charge the fee to compensate the city? It’s unclear. See the note about the fees below in italics as taken from the txcourts.gov website.

Fees Charged under LGC 117.055 Effective 12/02/2021

  • Pursuant to Section 117.055, Local Government Code, to compensate the county for the accounting and administrative expenses incurred in handling the registry funds that have not earned interest, including funds in a special or separate account, the Clerk may deduct a fee equal to 5% of the withdrawal, but not to exceed $50, at the time of refunding a cash bail bond if:
    • Defendant was found guilty at trial or after appeal; or
    • Defendant entered a plea of guilty or nolo contendre and was convicted by the court or placed on deferred adjudication.
  • Clerk may NOT deduct the fee if:
    • Defendant was found NOT guilty at trial or after appeal; or
    • The complaint, information or indictment was dismissed without a plea of guilty or nolo contendre being entered.
  • If the Clerk deducts a fee before final disposition of the criminal case and the court subsequently makes or enters an order or ruling that would have prohibited the deduction of a fee if it had been entered before the bond was refunded, the Clerk must refund the amount of the deducted fee to the person who requested the refund of the cash bail bond funds. This DOES NOT apply to a dismissal following successful completion of deferred adjudication.

Download here: Motion to Release Funds Deposited for Cash Bail Bond

2022 Impaired Driving Symposium

This week, municipal judges, justices of the peace, county judges, and district judges from across Texas gathered in Bee Cave and literally sat at the same table to discuss their roles and responsibilities within the lifespan of an impaired driving case. The annual two-day Impaired Driving Symposium’s roundtable setup facilitates networking and troubleshooting between judges that handle the various stages of an impaired driving case. One municipal judge in attendance commented: “I come from a small town. We deal with same defendants a lot. It is great to come to a conference like this and learn how judges from other jurisdictions and levels of the judiciary address issues related to drugs and alcohol.”

2022 Impaired Driving Symposium Roundtable Format

This unique event was conceptualized almost a decade ago when municipal judges serving as magistrates expressed concerns that they were generally unaware whether the bond conditions they set on impaired driving cases were being enforced. The curriculum and format of the Symposium was designed with this concern in mind. This year, courses included an impaired driving case law update, DWI bond conditions, drugged driving, and an interactive impaired driving scenarios session. Judge David Newell from the Texas Court of Criminal Appeals also provided a comprehensive overview of the Fourth Amendment as it relates to impaired driving and traffic safety.

Judge David Newell

This conference was funded by the Texas Department of Transportation (TxDOT). Thanks to TxDOT’s generosity, participants enjoyed free lodging, travel reimbursement, and no CLE reporting fee. The 2023 Impaired Driving Symposium is scheduled for July 31-August 1 in Odessa. Monitor TMCEC’s Impaired Driving Symposium page for updates and registration information. We hope to see you there!

Not Responsible for Broken Windshields!

This piece arose out of a conversation amongst TMCEC attorneys, Ben Gibbs researched the issue. This is what he found.

“If I stay back 201 feet, are you responsible for my broken windshield?” 

There are signs on the backs of almost every truck that say something very much like “Stay back 200 feet! Not responsible for broken windshields!” What is the legal effect of those signs? This is actually two questions, although the answers can be boiled down to a pretty imprecise, “Not much.” 

Criminally, a person (or the person’s agent or employee) may not transport loose material in a vehicle, without first securing the loose material to prevent it escaping by blowing or spilling. Tex. Transp. Code §§ 725.003, 725.021. A violation of this requirement is a misdemeanor punishable by a fine of $25-$500. There is no defense provided if the operator of the vehicle warns the vehicles behind or otherwise disclaims liability.  

There is a related provision in the transportation code requiring a red flag or cloth not less than 12 inches square or a strobe light be displayed on a vehicle transporting poles, piling, or timber from the point of origin of the timber to the processing mill. Tex. Transp. Code §§ 622.041, 622.042. However, the strictures of this statute are not met by a sign, and display of the flag does not waive criminal liability if loose materials are not properly secured. 

Criminally, then, a sign as described is without legal effect if a person operates a vehicle on a highway, and debris is improperly secured, such that it blows or spills. But, what about civil liability? 

There is no statute that waives liability for motor vehicles which transport material, against damage caused by the material escaping. Generally, posting a sign waiving liability does not absolve the poster from the duty of ordinary care. See, e.g., Langford v. Nevin, 117 Tex. 130, 133, 298 S.W. 536, 537 (1927); McAshan v. Cavitt, 149 Tex. 147, 149, 229 S.W.2d 1016, 1017 (1950).  

Section 725.021 imposes a duty, which, when breached, may be alleged as a cause of harm in a negligence action. See, Noblin v. EE Ranches, Inc., 296 S.W.3d 773, 777 (Tex. App.—El Paso 2009, no pet.). It is not, however, conclusive of a breach of duty, nor that any such breach was the proximate cause of harm. Block v. Mora, 314 S.W.3d 440, 446 (Tex. App.—Amarillo 2009). Those elements must be pled and proved separately.  

Without delving too deeply into the civil aspect (there are additional arguments, beyond the scope of this article), the brief answer is likely the same as the criminal one.