Three years ago this week, I posted the following content on an earlier version of Full Court Press (still accessible at blog.tmcec.com). The post did not migrate to our new address. Since this very topic came up today in our Central Texas Virtual Regional Judges and Clerks seminars, I decided to post it again (with minor edits).
Senate Bill 1913 and House Bill 351 introduced numerous important changes related to municipal courts and fine-only misdemeanors. An important procedural difference are the several new (or altered) notice requirements that all municipal court should be aware of. See the four notice requirements below:
1. On the Citation (Art. 14.06(b), C.C.P.): A citation must contain information regarding the alternatives to full payment of any fine or costs assessed, if the person is convicted of the offense and is unable to pay that amount.
a. Sample Language: The judgment and sentence for the offense you are charged is the payment of a fine and costs. If ordered to pay a fine and costs, and you cannot pay, notify the court immediately. If you are determined by the court to have insufficient resources or income to pay, the court is required to provide you other ways to discharge the fine and costs.
b. Practice Tip: If you are still using old printed citations, the new language should be incorporated as an addendum.
2. Upon Receipt of Plea and Waiver of Jury Trial by Mail (Art. 27.14(b), C.C.P.): Upon receiving a plea and a waiver of jury trial by mail, the court shall notify the defendant either in person or by regular mail of the amount of any fine or costs assessed in the case, information regarding the alternatives to the full payment of any fine or costs assessed against the defendant, if the defendant is unable to pay that amount, and, if requested by the defendant, the amount of an appeal bond the court will approve.
a. Regular Mail: A court, justice, judge, magistrate, or clerk may send any notice or document using mail or electronic mail. This section applies to all civil and criminal statutes requiring delivery of a notice or document. Sec. 80.02, G.C.
3. Notice Prior to Warrant (Art. 45.014(e-f), C.C.P.): A justice or judge may not issue an arrest warrant for the defendant’s failure to appear at the initial court setting, unless: (1) the judge provides by telephone or regular mail notice that includes: (A) a date and time when the defendant must appear before the judge (defendant may request an alternative date); (B) the name and address of the court with jurisdiction in the case; (C) information regarding alternatives to the full payment of any fine or costs, if the defendant is unable to pay that amount; and (D) an explanation of the consequences if the defendant fails to appear; and (2) the defendant fails to appear. Two versions of this statute still exist. Under the S.B. 1913 version, the date and time when the defendant must appear must be set within 30 days of when notice is provided.
a. Gray Areas: While the language of the statute specifies that notice is required prior to issuing a warrant for the defendant’s failure to appear, many, if not most, courts are extending the same protection prior to issuing a warrant for the underlying charge, as well.
b. Notice can be sent prior to nonappearance: Many courts are sending notice for all citations as there is no statutory need to wait for a nonappearance to offer an additional, initial appearance setting.
4. Notice Prior to Capias Pro Fine (Art. 45.045(a-2), C.C.P.): This fourth notice provision is the one that has changed the most. Initially, what I wrote below was added to the law with the passage of House Bill 351.
Before a court may issue a capias pro fine for the defendant’s failure to satisfy the judgment, (1) the court must provide notice by regular mail that includes a statement that the defendant has failed to satisfy the judgment and the date and time of the show cause hearing; and (2) either the defendant fails to appear at the hearing or based on evidence presented at the hearing, the court determines that the capias pro fine should be issued.
a. Irreconcilable?: Senate Bill 1913 was also passed in 2017, but it did not include notice language. Instead, it just included language about the hearing. Perhaps because its last record vote occurred two days after House Bill 351’s last record vote, the notice language may have never appeared in the published statute. See the following excerpt from the Code Construction Act (Chapter 311 of the Government Code).
Sec. 311.025. IRRECONCILABLE STATUTES AND AMENDMENTS. (a) Except as provided by Section 311.031(d), if statutes enacted at the same or different sessions of the legislature are irreconcilable, the statute latest in date of enactment prevails.(b) Except as provided by Section 311.031(d), if amendments to the same statute are enacted at the same session of the legislature, one amendment without reference to another, the amendments shall be harmonized, if possible, so that effect may be given to each. If the amendments are irreconcilable, the latest in date of enactment prevails.(c) In determining whether amendments are irreconcilable, text that is reenacted because of the requirement of Article III, Section 36, of the Texas Constitution is not considered to be irreconcilable with additions or omissions in the same text made by another amendment. Unless clearly indicated to the contrary, an amendment that reenacts text in compliance with that constitutional requirement does not indicate legislative intent that the reenacted text prevail over changes in the same text made by another amendment, regardless of the relative dates of enactment.(d) In this section, the date of enactment is the date on which the last legislative vote is taken on the bill enacting the statute.(e) If the journals or other legislative records fail to disclose which of two or more bills in conflict is latest in date of enactment, the date of enactment of the respective bills is considered to be, in order of priority:(1) the date on which the last presiding officer signed the bill;(2) the date on which the governor signed the bill; or(3) the date on which the bill became law by operation of law.
The two provisions did not seem irreconcilable to me, although they were different. In fact, a valid show cause hearing should include notice. So with the passage of Senate Bill 1913 in 2017 and later Senate Bill 346 in 2019, it is clear that a show cause hearing is required prior to the issuance of a capias pro fine. See Article 45.045(a-2 through a-5) for more guidance on the hearing. Of course, notice to the defendant prior to the show cause hearing should be a prerequisite.