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.

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.