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.”
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.
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.
From the 800 Line: Temporary Tags
In 2021, the Texas Legislature passed H.B. 3927 to combat the prevalence of unauthorized temporary motor vehicle tags. Valid temporary tags allow vehicles to be legally operated without registration (typically following a vehicle purchase). Much of H.B. 3927 focused on the creation and distribution of counterfeit temporary tags, which would result in Class B misdemeanor or higher charges. But, perhaps due to new priorities of law enforcement, Class C misdemeanor filings for drivers operating vehicles with counterfeit temporary tags seem to be on the rise since the passage of H.B. 3927. This has led to numerous questions from municipal judges and clerks asking what charge—and what fine range—should apply when police cite a driver for displaying an unauthorized temporary tag.
§ 503.067(b), T.C., states that a person may not operate a vehicle that displays a temporary tag in violation of Chapter 503, which is an entire chapter dedicated to dealer’s and manufacturer’s license plates. Under § 503.094, the fine range, “except as otherwise provided,” is $50-5,000 and can be trebled (tripled) upon a finding that the violation was committed willfully or with conscious indifference. However, § 503.094 goes on to specify that offenses under § 503.067(b) are Class C misdemeanors. Class C misdemeanor is the term used in § 12.23 of the Penal Code for fine-only misdemeanors with the punishment as “a fine not to exceed $500.”
The use of the term “Class C misdemeanor” in § 503.094(d)(1) arguably modifies the $50-5,000 range. TMCEC has interpreted this mention of Class C misdemeanors to set the fine range for offenses under § 503.067(b) or (c) as those prescribed by § 12.23 of the Penal Code: $0-500. To give effect to as much of the language in § 503.094(b) as possible, though, a judge could safely set the fine within both the Penal Code Class C range as well the $50 minimum that also appears in Section 503.094, resulting in a range of $50-500. If the defendant is demonstrated to have acted willfully or with conscious indifference, the trebled fine would range would be $150-1,500.
Either minimum fine ($0 or $50) might be reasonably read into the statute.
Some may read the statute to say that the fine range for a Class C misdemeanor under § 503.067(b) or (c) is $50-5,000 (or $150-15,000 for willful or consciously indifferent conduct). However, that reading gives no effect to the use of the legal term of art, “Class C misdemeanor,” in § 503.094(d)(1). Furthermore, there are offenses in Chapter 503 that are not itemized in Subsections (d)(1) through (d)(4) that give effect to § 503.094(b).
The Right to Counsel vs. The Right to Appointed Counsel
In criminal prosecutions, the accused has the right to be represented by counsel, to be heard by the accused or by counsel, or both. This right is enshrined in Article 1, Section 10 of the Texas Constitution and in Chapter 1 of the Code of Criminal Procedure. However, the right to representation is not the same as the right to free representation.
An indigent defendant is entitled to have an attorney appointed to represent him in any adversarial judicial proceeding that may result in punishment by confinement. Tex. Code of Crim. Proc. Art. 1.051(c). However, in “any other criminal proceeding,” the defendant is only entitled to appointed counsel “if the court concludes that the interests of justice require representation.” Id. “Any other criminal proceeding” here refers to any proceeding for which confinement may not be part of the sentence. Although a defendant may be incarcerated for, for example, failure to appear or failure to pay a fine in municipal court, incarceration may never be part of the sentence for the underlying offense. Scott v. Illinois, 440 U.S. 367 (1979).
In fine-only cases, then, there are two factors to be met before a court is required to appoint counsel: indigence and the interest of justice. In this context, indigence is simply the financial inability to employ counsel. The determination of what the interests of justice require is within the court’s discretion. Factors for a judge to consider include whether the case will involve unique matters or matters of first impression, whether the risks to liberty are grave, and whether the accused lacks the education, experience, or ability to proceed without appointed counsel. See, e.g., Valentine v. State, No. 07-12-0307-CR, 2013 Tex. App. LEXIS 5174, at *4 (Tex. App.—Amarillo Apr. 25, 2013); Barcroft v. State, 881 S.W. 2d 838, 841 (Tex. App.—Tyler 1994, no pet.)
For additional information, please see the file below as well as pages 30-31 of the October 2016 Special Edition of the Recorder, which is devoted to fines, fees, costs, and indigence.
Three Weeks Left Until the End of the Academic Year!
There are only three weeks left the end of the 2022 Academic Year, which is also the deadline for completing judicial education hours. If you are a judge still needing some hours, there are still plenty of options remaining to complete your hours.
In-Person TMCEC Conferences
If you would like an in-person educational experience, TMCEC only has a handful left. They are as follows:
August 15-16, 2022 Impaired Driving Symposium (limited space available)
August 18-19, 2022 Mental Health Conference (limited space available)
August 31, 2022 Regional Roundtable (limited space available, and only for those in Regions I-V)
Note that the number of judicial education hours offered varies by program.
If you would like to attend a seminar, please register today as there are only a handful of spots still available. You may register for a seminar by going to the registration page on our website – from the homepage of the website, click on the blue “Conferences and Events” button then select “Registration” from the drop-down menu.
Don’t Forget the Suspension of Rules
Please keep in mind that the emergency order suspending portions of the Rules of Judicial Education is still in effect. On March 30, 2020, the Court of Criminal Appeals issued an emergency order suspending all sections of the Rules of Judicial Education that require live, continuous hours of judicial education that would prevent a judge from completing his or her hours during the disaster.
Here’s what you need to know regarding the order:
- All experienced municipal judges are still required to complete 16 hours of judicial education before August 31, 2022. Non-attorney judges must complete the 32-hour New Judges Seminar within 12 months of appointment.
- Typically, each judge would need to satisfy at least eight of those hours (or all 16 for a judge completing a first or second year of education) through live, continuous training. This year, however, all 16 hours can be completed by electronic means.
Satisfy Judicial Education Requirements and S.B. 6 at the Same Time
Note that the Magistrate Duties: Setting Bail in Criminal Cases program is available on demand. This course is TMCEC’s OCA-approved course required by S.B. 6 and is required for any magistrate that releases defendants on bail for Class B or higher offenses. Generally, magistrates must complete this course within 90 days of taking office. Magistrates that were serving on April 1, 2022, however, have until December 1, 2022.
TMCEC will report to OCA the names of the magistrates who have completed the full 8-hour training course.
Webinars On Demand
Additionally, TMCEC currently offers dozens of webinars on demand and continues to offer new webinars frequently. Viewing webinars is a permissible method to satisfy your hours while the order is in effect.
Waivers and Opt Outs
Finally, if you are having trouble meeting the educational requirements this year, keep in mind that you may request a waiver. If you have completed other relevant CLE or judicial education, you may submit an Intent to Opt Out form as long as you have completed at least two years of training and did not opt out of TMCEC training last year. For more information, see the alternative judicial education page on the TMCEC website.
Clerk Certification Highlight: Jennifer Bozorgnia
Mark Goodner sat down with Jennifer Bozorgnia to discuss The Municipal Court Clerk Certification Program
MG: Jennifer, thanks for sitting down with me today to discuss clerk certification. With a goal of encouraging professional development and educational growth within the court clerk profession, program participants achieve certification upon successful completion of each of the three levels: Level I (CCCI), Level II (CCCII), and Certified Municipal Court Clerk (CMCC) or what we sometimes call Level III. Now there are only about 130 CMCCs in all of Texas. Jennifer, you are number 47! How did you get started with the certification program and how has it helped you?
JB: Hi, Mark! Thanks so much for inviting me to participate today. The clerk certification program is one I hold near-and-dear to my heart, so any opportunity to share how it’s impacted my career is always appreciated. My CMCC certification is one of my proudest professional accomplishments for so many reasons! As you mentioned, I truly believe the program elevates our profession – from increased public confidence in our judicial system to a heightened understanding of how our roles and our courts support a positive quality-of-life for our communities.
As a brand-new Deputy Court Clerk in the small-volume court of Kennedale in the 2000’s, I was incredibly fortunate to work for the BEST Court Administrator of all time. Not only did she encourage my involvement in professional organizations like the Texas Court Clerks Association (TCCA) and the Texas Municipal Courts Association (TMCA), she also provided the resources necessary to begin pursuing my certifications – registering me for education through TMCEC, offering me study-time while at work, and cheering me on throughout every step of the process. Because I took advantage of what she offered, I was able to achieve Level I and Level II certifications within 6 months of one another and immediately began pursuing Level III, thereafter. While rigorous, the Level III journey was so rewarding!
Throughout my pursuit, I applied gained knowledge to improve processes and anticipate potential downfalls for my court in Kennedale. I was well-prepared for promotional opportunities and therefore, appointed as the Court Administrator and City Magistrate when the positions opened. I learned a ton and established meaningful relationships with clerks across the state. I used all of this when applying for a management role in the City of Irving’s Municipal Court – which, ultimately, led to my next professional chapter.
During the observation portion of the CMCC program, the Irving Municipal Court graciously hosted me to fulfill my large-volume requirement. While there, I fell in love with the team, their organizational culture, and their approach to customer service. When the management role was posted for them, I knew it was right for me, BUT I was disappointed to learn that I didn’t qualify because at the time, I lacked the formal education requirements for the position. REGARDLESS, I chose to apply anyway – using my recent CMCC certification in lieu of that formal education requirement… and it worked!
Ten years later, I’m now serving as the Director of Court Services for the City of Irving, a large-volume court, while leading a team of more than 35 dedicated professionals! I’ve used the discipline acquired during the clerk certification program to also achieve my CCM designation through the NCSC and complete my Master’s degree in Public Service and Administration through Texas A&M (Gig ‘em!) I’ve been able to take multiple leadership roles in TCCA and help cultivate the future of our profession by partnering with organizations like TMCEC and TCCA to facilitate ongoing education on meaningful and relevant topics.
Ultimately, I’m saying all of this not to impress anyone, but to impress upon EVERYONE three main takeaways:
1. As Court Clerks, our ongoing education and professional development is essential to building the public’s perception that we will always support a mission dedicated to the fair and impartial administration of justice;
2. As with any opportunity presented, you will only get out of something what you are willing to invest into it. The clerk certification program is a tool at your disposal. Use it! And lastly;
3. As leaders in public service, always remember that people may forget your name or the exact details of what you do, but they’ll never forget how you make them feel. I’ll never forget my first Court Administrator and what I felt she did for me (thank you, Bobbie!) Always be THAT type of leader – the one that always encourages growth and becoming better. Just in this, you will, undoubtedly, leave an impact!
MG: Thank you. Obviously, you are very active with TCCA and the certification program. You just told us how it has helped you personally with your own career. As a court administrator, when you encourage clerks to go through the certification process, how does that help their growth as court professionals? Do you notice a difference in the effectiveness of the court as they move throughout the process?
JB: Oh, that’s a great question! I believe there are so many perspectives to consider when answering this, but from my experience in both a small and large-volume court, I think it all comes down to confidence. Every court, no matter their size, is constantly tasked with overcoming challenges. Our challenges in Irving are much different than those that were present while I was in Kennedale.
For example, in Kennedale our resources were limited. Our judge and prosecutor were contracted, part-time, allowing us to schedule dockets only once per month. We were a staff of three – two clerks and a marshal, and we were cross-trained to assist with water utilities when billing clerks were out of the office. To be even more efficient, as the Court Administrator, I was appointed to also serve as the City Magistrate to review and conduct all statutory proceedings arising from an arrest by a KPD officer. Our general fund budget allocation was minimal and our special revenue funds (such as Court Technology and Building Security) were only as healthy as the number of citations issued (and the amount we collected).
However, in Irving these specific obstacles are factored in much less. Due to our size, though, we have other concerns to consider instead. For instance, we’re a constant target for the media’s scrutiny of the judicial system, our team is specialized by division – leaving them at a disadvantage to fully understand caseflow management from beginning to end, we’re always balancing operational efficiency with the motivational factors of more than 35 different team members– and that’s just to name a few!
Overall, no obstacle is greater in one place than the obstacle in another, it’s just a different obstacle – regardless of the organization’s size. This is why I think clerks’ professional growth and effectiveness are primarily achieved when they gain confidence; confidence in the knowledge learned throughout the program and confidence in reliable connections made with other clerks across the state, whether through TCCA, TMCEC, TMCA, etc. Ultimately, in my opinion this gained confidence strengthens the ability for them to make effective decisions. When I encourage clerks to complete the certification process, my hope is that they become empowered to not only make decisions wisely, but also equipped to defend those decisions using the appropriate tools taught to them throughout the program.
MG: I imagine some new court employees considering certification are worried about taking that on while others can’t wait to get started. I personally think it is such a fantastic way for someone to turn a job into a profession and a career. If someone is just entering the profession and is considering beginning the court certification journey, what advice would you give them?
JB: You hit the nail on the head, Mark. I deeply believe the certification “journey” helps transform our job into a career! To better understand this transformation, we can take a quick look at the origin of the word “career.” According to dictionary.com, it’s derived from the Latin word, carrus, or chariot, and later evolves to “signify the path chosen as one’s life’s work.” With that definition, it could easily be construed to mean that our job becomes a career when we choose to use it as the vehicle, or method, to achieve our life’s work.
For those just getting started or for those considering the journey, I’ll leave you with this bit of advice – first, make the commitment and just do it. Do it even when you don’t feel like doing it anymore. I guarantee your reward will far outweigh any reminder of how hard you thought it would be to accomplish it. Second, share your journey – the good and the bad. Let us celebrate you when things are great and let us encourage you when they’re not. You never know how your story could positively impact others around you. Lastly, don’t forget to approach the certification program as your vehicle to transform your job as a court clerk into your career as a public service professional! It won’t happen overnight, but nothing worth working for ever does. Embrace the process of your journey and you’ll, inevitably, result in being better because of it.
MG: Thank you so much for sharing your story and your thoughts, Jennifer. 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.
Resource Highlight: Dual Office-Holding Made Easy
TMCEC often receives requests for information about dual office-holding. If you ever encounter these concerns, we first strongly suggest that you contact the city attorney with employment questions. In the end, legal advice about who a city employs and how should come from your own attorney, who may be familiar with confidential matters to which TMCEC cannot be privy.
We can direct you to an excellent resource through the Texas Municipal League, optimistically titled “Dual Office Holding and Incompatibility Laws Made Easy.” Authored by Assistant General Counsel Zindia Thomas and Law Clerk Paloma Dominguez, the publication is available here (also embedded below). While it does not cover every possible permutation of the question of who may be a judge, it does an excellent job of laying out the basics and giving a foundation on the intent behind Texas dual office holding law. The fact that there are so many Attorney General Opinions related to dual office holding shows that every situation is unique.
Full Court Press 