Before reading on, take five minutes to watch CBS Texas’s 2023 news story, The Ongoing Fight Against Ghost Cars in Texas, embedded below.
A valid registration and license plate shows that a motor vehicle is in compliance: it has undergone any required safety inspections and is covered by automobile insurance. This helps ensure other road users’ personal (as well as financial) safety. A “ghost car” is a motor vehicle with a counterfeit license plate designed to deceive other motorists and law enforcement into believing that the vehicle is in compliance. The reason ghost cars are particularly prevalent in Texas is that, as of today, Texas still permits temporary paper license plates (or “tags”) in certain situations, such as immediately following a car’s sale. Other states, such as New York, have even alerted local authorities to be on the lookout for fake Texas plates on their roads. Creating a fake temporary paper license plate is not complicated. They can be easily generated at home with nothing more than a black-and-white computer printer. What are Texas lawmakers doing to stop this alarming trend?
In 2021, in an attempt to prevent the use of legitimately created but unlawfully used temporary license plates, Texas limited the number of temporary plates vehicle dealers and converters could issue each year (H.B. 3927). But this did not address the use of counterfeit temporary plates. In 2023, Texas outlawed temporary paper license plates beginning July 1, 2025 (H.B. 718). This legislative act projects to result in a sharp decline in the number of ghost cars in Texas. It will be drastically more difficult to create a fake plate that appears legitimate to the naked eye. With fewer ghost cars, there should also be fewer complaints alleging a violation of Section 503.067 of the Transportation Code (“Unauthorized Reproduction, Purchase, Use, or Sale of Temporary Tags”) being filed in municipal court.
After an arrest involving family violence or for trafficking of persons, sexual assault, indecent assault, aggravated sexual assault, or stalking, Texas magistrates may enter a Magistrate’s Order of Emergency Protection (MOEP) under Article 17.292 of the Code of Criminal Procedure. MOEPs are designed to protect the victims of such crimes.
Beginning with MOEPs entered on or after June 1, 2024, all magistrates in Texas are required to use the new MOEP form available on the Office of Court Administration’s (OCA) Standardized Protective Order Forms webpage. This requirement is in Article 17.292(d-1) of the Code of Criminal Procedure, which was enacted in 2023 through S.B. 48. While the new form is required, a magistrate’s failure to use it does not affect the validity or enforceability of an issued MOEP. Along with the new standard MOEP, OCA has also created a new Motion to Modify MOEP and Order on Motion to Modify MOEP, which are available on the page linked above. There is no change to how MOEPs are transmitted, filed, and enforced following execution.
The new standard forms may be filled out digitally or printed and filled out by hand. In line with Article 17.292(d-1), the forms should not be altered by courts. Any questions, suggestions, or issues related to the new forms should be directed to OCA. Should adjustments or improvements be necessary, OCA has indicated that they will revise the forms accordingly.
Given these changes, TMCEC has removed its MOEP as well as orders related to MOEP modification from the Forms Book. During a TMCEC webinar presented by OCA’s Kimberly Piechowiak on June 6, 2024, titled The New Magistrate’s Order for Emergency Protection (available on-demand on TMCEC’s Online Learning Center), one participant pointed out that the new MOEP provides “The Magistrate’s Record of Service is attached to this Order.” OCA has not, at this time, developed a standard Record of Service. Therefore, the Magistrate’s Record of Service of Order of Emergency Protection is still available in the Forms Book. The Clerk’s Letter: Copy of Service of Order of Emergency Protection is also still available in the Forms Book.
New Texas Rule of Judicial Administration Rule 7.1 requires all courts to adopt a policy governing court confidentiality no later than May 1, 2024. The Supreme Court order, including the text of the rule, as well as the Supreme Court’s Confidentiality Policy and agreement is provided below.
The policy must: (1) define who it applies to, (2) define confidential information, (3) impose a duty of confidentiality on all court staff that continues after employment at the court ends, (4) address when, if ever, the disclosure of confidential information is authorized, (5) provide the language of relevant laws, (6) address negligent or accidental disclosure of confidential information, (7) warn of potential penalties for improper disclosure, and (8) require all court staff to acknowledge receipt of the policy in writing. The policy must be provided to all new court staff members and training on it must be given prior to the new staff member beginning any substantive work for the court. Furthermore, all existing court staff members must be provided with the policy biannually.
Where to Start
If you are scrambling to create and adopt this new policy, please know that you have a good starting point. The Texas Supreme Court has provided its Confidentiality Policy that can be used as a sample (see file above). Because this is The Supreme Court’s policy, it does not mention the municipal-court-specific confidentiality provisions contained in Articles 45.0217/45A.462, 45.0218/45A.055, and 45.313 of the Code of Criminal Procedure. TMCEC has created an adapted municipal-court-specific sample (provided below as a downloadable word document), which includes, among other things, these statutes. Arguably, these added provisions are not required in the policy, but it would create a more complete definition of “confidential information” as required under the rule.
Does the confidentiality policy have to be submitted to the State?
The rule itself does not require that it be submitted to the State. The order from the Supreme Court of Texas requires the clerk of that court to file it with the Secretary of State, send it to members of the state bar and legislators, and publish in the Texas Register. Those directions are for the clerk of the Supreme Court of Texas to send the Supreme Court’s order—not a municipal court clerk to send their city’s individual policy.
How do we adopt it? Does the city council have to adopt it?
This rule must be adopted by every court. There is no requirement that city officials adopt a rule. Generally, a reference to a court is a reference to the judge of that court. Once a policy is created, adoption can be as simple as a signed and stamped order from the judge (or presiding judge) that the court adopts the policy as attached.
How often do we have to provide a copy of the policy to staff?
There has been some discussion about this. The rule requires that the policy be provided to court staff at least biannually. In the dictionary, biannually means twice a year (versus biennially which means every other year). There may be some instances where biannually is used to mean every other year, but the safe route is to follow the common definition and provide it to staff twice a year.
What does the training have to look like?
This will be up to each court. There are no specifics as to what the training must consist of. The rule requires that all new court staff members be provided with the policy and be trained on it prior to beginning any substantive work for the court.
Does this apply to volunteers or third-party workers that might work with the court?
The model rule mentions “employees of this court.” It gives no clues beyond that. Each court, within its rule, is to define who it applies to—so there is some room for flexibility here. The model rule includes this sentence:
This policy applies to all Court staff, including interns.
This sentence could be modified to specify who it applies to in your specific court. If you want to include volunteers, independent contractors, etc., this would be where to include them.
Last night, the Fifth Circuit Court of Appeals denied Texas’ motion to stay pending appeal. This means that S.B. 4 is not in effect as we wait for the court to determine the legality of the new immigration law. See the full decision below.
February 29, 2024: The U.S. District Court for the Western District of Texas granted a preliminary injunction enjoining the enforcement of S.B. 4 because it violated the Supremacy Clause of the U.S. Constitution. Article VI, Clause 2 of the U.S. Constitution, the Supremacy Clause, establishes that the U.S. Constitution and any federal laws made pursuant to it constitute the supreme law of the land and thus take precedence over any conflicting state laws.
March 2, 2024: The Fifth Circuit Court of Appeals ordered a temporary administrative stay overturning the District Court’s injunction. The Fifth Circuit, however, placed a seven-day stay on its administrative stay to give the federal government an opportunity to appeal this decision to the U.S. Supreme Court. The Fifth Circuit also stated that it will hear oral arguments on the constitutionality of S.B. 4 as soon as possible.
March 4, 2024: The U.S. Supreme Court ordered an administrative stay on the Fifth Circuit’s order until 4:00 p.m. (CDT) on March 13, 2024. The Supreme Court further ordered Texas to submit a response by March 11.
March 12, 2024:The U.S. Supreme Court extended the administrative stay on the Fifth Circuit’s order until 4:00 p.m. (CDT) on March 18, 2024.
March 18, 2024: Justice Alito extended the administrative stay barring S.B. 4 from taking effect.
March 19, 2024: The U.S. Supreme Court vacated its stay, allowing Texas to enforce its new immigration law.
March 19, 2024: The Fifth Circuit Court of Appeals dissolved the stay, which allowed the preliminary injunction from the federal district court to bar S.B. 4 until the court considered a motion from Texas to stay the injunction pending appeal.
March 20, 2024: The Fifth Circuit heard oral argument of Texas’ motion to stay the injunction.
March 26, 2024: The Fifth Circuit denied Texas’ motion. S.B. 4 will not take effect until the legality of the law is determined on appeal.
Late last night, a panel concluded that the administrative stay entered allowing S.B. 4 to take effect should be lifted. The stay was dissolved. This means that the preliminary injunction from the federal district court is barring S.B. 4 until the court considers Texas’ motion to stay the injunction pending appeal. This has been quite the back and forth. Oral arguments begin today at 10:00 am. See last night’s order below.
Relying on procedure rather than substance, the U.S. Supreme Court vacated its stay from yesterday, allowing Texas to enforce its new immigration law, SB 4. Essentially, the SCOTUS said it’s not in their purview to consider the merits of the 5th Circuit’s stay because the 5th Circuit used an administrative stay rather than a stay pending appeal. See the full concurring opinion along with two dissenting opinions below:
The U.S. 5th Circuit Court of Appeals is scheduled to hear oral arguments in the case on Wednesday, March 20, 2024. The 5th Circuit on March 2, 2024 ordered a temporary administrative stay overturning the U.S. District Court’s preliminary injunction barring the enforcement of S.B. 4.
Supreme Court Justice Alito once again extended the stay barring Texas’ new immigration law S.B. 4 from taking effect today. Last week’s stay expired at 4:00 p.m. (CDT) today. Today’s order extends the stay without a specific end date. See the order below:
TMCEC will continue to monitor this fluid situation and keep constituents apprised of updates. Mark your calendar! S.B. 4 and recent changes regarding the confidentiality of court work product information will be the focus of a special TMCEC Morning Coffee on Thursday, March 21st at 10:00 a.m.
Yesterday, we told you about the latest on S.B. 4. Today, the U.S. Supreme Court has extended the stay until March 18, 2024. This pushes the earliest effective date of the new illegal immigration law to next Monday.
February 29, 2024: The U.S. District Court for the Western District of Texas granted a preliminary injunction enjoining the enforcement of S.B. 4 because it violates the Supremacy Clause of the U.S. Constitution. Article VI, Clause 2 of the U.S. Constitution, the Supremacy Clause, establishes that the U.S. Constitution and any federal laws made pursuant to it constitute the supreme law of the land and thus take precedence over any conflicting state laws.
March 2, 2024: The Fifth Circuit Court of Appeals ordered a temporary administrative stay overturning the District Court’s injunction. The Fifth Circuit, however, placed a seven-day stay on its administrative stay to give the federal government an opportunity to appeal this decision to the U.S. Supreme Court. The Fifth Circuit also stated that it will hear oral arguments on the constitutionality of S.B. 4 as soon as possible.
March 4, 2024: The U.S. Supreme Court ordered an administrative stay on the Fifth Circuit’s order until 4:00 p.m. (CDT) on March 13, 2024. The Supreme Court further ordered Texas to submit a response by March 11.
March 12, 2024:The U.S. Supreme Court extended the administrative stay on the Fifth Circuit’s order until 4:00 p.m. (CDT) on March 18, 2024.
Stay Tuned (and Save the Date)
TMCEC will continue to monitor this fluid situation and keep constituents apprised of updates. Mark your calendar! S.B. 4 and recent changes regarding the confidentiality of court work product information will be the focus of a special TMCEC Morning Coffee on Thursday, March 21st at 10:00 a.m. Additional information will be shared in the weeks and months ahead.
S.B. 4 Implementation Temporarily Paused Pending U.S. Supreme Court Review
For months, TMCEC has been monitoring S.B. 4, the “Texas Illegal Immigration Law.” The bill, scheduled to go into effect on March 5th, is embroiled in federal litigation. While a federal trial court issued a 114-page decision stopping the bill from taking effect, two days later a federal court of appeals “reversed course” saying that it would allow the bill to go into effect while the case against it proceeded in the courts. Now all eyes are on the U.S. Supreme Court, which issued a temporary administrative stay that expires this week.
Supreme Court of the United States
What Municipal Courts Need to Know about S.B. 4
On December 18, 2023, during the fourth special session, the Texas Legislature passed S.B. 4 with a March 5, 2024 effective date. Among other things, S.B. 4 adds Chapter 51 to the Penal Code, which creates state offenses related to illegal entry into Texas ranging in punishment from Class B misdemeanor to second degree felony.
Importantly, for municipal judges who perform magistrate duties, S.B. 4 creates Chapter 5B of the Code of Criminal Procedure. Article 5B.002(a) gives magistrates the discretion, following a probable cause determination, to order the discharge of a person arrested for the newly created offenses in Chapter 51 of the Penal Code (Sections 51.02 and 51.03) and issue a written order requiring the person to return to the foreign nation from which he or she entered or attempted to enter the United States. The arrestee:
Must agree to the order;
Must not have been previously convicted of an offense under Chapter 51 or discharged under Article 5B.002; and
Must not be charged with another Class A misdemeanor or higher offense.
If a magistrate chooses to issue an order under Article 5B.002, the order must include (1) the manner of transportation of the person to a port of entry and (2) the law enforcement officer or state agency responsible for monitoring compliance with the order. Magistrate orders under Article 5B.002(a) must be filed with the county clerk of the county where the person was arrested.
Furthermore, prior to the issuance of an order under Article 5B.002, the arresting law enforcement agency must collect all available identifying information on the arrestee, including taking fingerprints, and cross-reference it against all relevant criminal databases.
Federal Court Activity Timeline
February 29, 2024: The U.S. District Court for the Western District of Texas granted a preliminary injunction enjoining the enforcement of S.B. 4 because it violates the Supremacy Clause of the U.S. Constitution. Article VI, Clause 2 of the U.S. Constitution, the Supremacy Clause, establishes that the U.S. Constitution and any federal laws made pursuant to it constitute the supreme law of the land and thus take precedence over any conflicting state laws.
March 2, 2024: The Fifth Circuit Court of Appeals ordered a temporary administrative stay overturning the District Court’s injunction. The Fifth Circuit, however, placed a seven-day stay on its administrative stay to give the federal government an opportunity to appeal this decision to the U.S. Supreme Court. The Fifth Circuit also stated that it will hear oral arguments on the constitutionality of S.B. 4 as soon as possible.
March 4, 2024: The U.S. Supreme Court ordered an administrative stay on the Fifth Circuit’s order until 4:00 p.m. (CDT) on March 13, 2024. The Supreme Court further ordered Texas to submit a response by March 11.
Stay Tuned (and Save the Date)
If the U.S. Supreme Court does not intervene, S.B. 4 could take effect this Wednesday, March 13th. TMCEC will continue to monitor this fluid situation and keep constituents apprised of updates. Mark your calendar, S.B. 4 and recent changes regarding the confidentiality of court work product information will be the focus of a special TMCEC Morning Coffee on Thursday, March 21st at 10:00 a.m. Additional information will be shared in the weeks and months ahead.
Under Rule 7.1, every court must, no later than May 1, 2024, adopt a policy governing court confidentiality. The policy must: (1) define who it applies to, (2) define confidential information, (3) impose a duty of confidentiality on all court staff that continues after employment at the court ends, (4) address when, if ever, the disclosure of confidential information is authorized, (5) provide the language of relevant laws, (6) address negligent or accidental disclosure of confidential information, (7) warn of potential penalties for improper disclosure, and (8) require all court staff to acknowledge receipt of the policy in writing. The policy must be provided to all new court staff members and training on it must given prior to the new staff member beginning any substantive work for the court. Furthermore, all existing court staff members must be provided with the policy biannually.
The Texas Supreme Court has provided a sample Confidentiality Policy and Agreement. Because this is a generic sample for all courts, it does not mention the municipal-court-specific confidentiality provisions contained in Articles 45.0217/45A.462, 45.0218/45A.055, and 45.313 of the Code of Criminal Procedure. TMCEC has created an adapted municipal-court-specific sample, which includes, among other things, these statutes. (See the download link below.) If a municipal court opts to base its policy on either of these samples, TMCEC highly encourages the court to closely examine and adapt it as necessary to ensure compatibility with the specific court’s operations, as well as state law.
If you would like to hear more about this new development, please join TMCEC on Thursday, March 21, 2024 at 10:00am for a Morning Coffee webinar regarding Rule 7.1. We hope to see you there!
Full Court Press 