By Ben Gibbs

Naff v. State, 946 S.W.2d 529, decided May 15, 1997, is a useful case for municipal court practitioners because it addresses three common arguments and spells out clear legal reasons for its decision. Although not binding statewide authority, the Naff opinion relies heavily on Texas Court of Criminal Appeals authority and uses clear and comprehensible language.

This case started like many in municipal court: David Allen Naff was convicted and fined for four traffic offenses in municipal court and assessed fines and costs of more than $1,200. The offenses included fail to maintain financial responsibility, no driver’s license, no motor vehicle registration, and no motor vehicle inspection (which is no longer a separate offense in Texas). He appealed to the county court at law in Wichita County, where the court affirmed all four convictions and the fine amounts. Naff then appealed to the Second Court of Appeals in Fort Worth.

At the second court of appeals, Naff argued three points: the complaints, because they were not signed by a person with personal knowledge of the underlying facts, were deficient; the prosecution was illegal because it was conducted by a municipal court prosecutor (and city attorney) rather than by the County Attorney as required by the Texas Constitution, article V, section 21; and that regulation of his person or his vehicle while on public roadways was a violation of his right to travel.

The court held that, because personal knowledge is not listed as a requirement in the statutes prescribing the form of complaints, it is not necessary. An affiant is permitted to base the accusations in a complaint on information derived from a police report.

The court held that prosecution in municipal court by a municipal prosecutor is also not legal error. Article V, section 21 states that all prosecutions in district and inferior courts shall be conducted in counties which do not elect a district attorney. Wichita county does, in fact, have a district attorney. The district attorney’s jurisdiction is defined by statute, and so may be delegated to other attorneys, as has been done in municipal courts.

Finally, the court held that reasonable regulation of Naff’s traveling is not an infringement of his right to travel, but is rather a reasonable regulation of the privilege to drive an automobile on a Texas highway. Regulating licensing and registration laws and requiring proof of financial responsibility are a proper subject of police power, and not a denial of due process.

By Benjamin Gibbs

As public opinion on tobacco has shifted, so, too, has the law on underage possession. In the 88^th legislature, there are bills introduced which would criminalize selling “alternative nicotine products” and certain flavors of tobacco to minors. See e.g., 88^th legislature, SB 920, HB 4481. These bills would punish sellers, not underage possessors of these products. As currently written, they will not change the law regarding possession of tobacco offenses under Section 161.252, or the deferral under Section 161.253. In that interest, here is a quick refresher on the law as to underage possession of tobacco, e-cigarettes, and tobacco products.

Upon conviction of a tobacco offense by a minor, the court shall suspend execution of the sentence and order attendance at an e-cigarette and tobacco awareness program. Because this occurs after conviction, the court should also determine an appropriate fine, not to exceed $100.

From the first codification of this offense in 1997 until the revision in 2019, subsequent offenses under this section had a higher maximum fine. Although this is no longer the case, there is a provision which echoes that. For a first conviction under Section 161.252, if the defendant completes the ordered course (or community service if the course is unavailable), the court shall discharge the defendant and dismiss the complaint. If the defendant completes the course, and the court discharges the defendant under this provision, all penalties and disabilities are released, including the fine and court costs. The only impact that will remain is that this will be considered a prior conviction for purposes of Section 161.253.

If the defendant has been previously convicted of an offense under Section 161.252, even if the conviction was previously dismissed after completion of an awareness program, the penalty is modified. If the defendant does not complete the program, the fine assessed upon conviction, up to $100, remains. If the defendant does complete the program, the fine may be reduced, at the discretion of the court, to not less than half of the amount previously imposed. This is not a reassessment of the fine but should be based upon the amount of the fine assessed at the time of conviction.

There is also a special expunction provision under Subchapter N. On or after the individual’s 21^st birthday, and for a fee of $30 per offense, the defendant may apply to have any number of convictions under Section 161.252 expunged. The expunction is mandatory if the defendant applies, and there is no requirement that the defendant have completed the required course under Section 161.253 before applying for expunction.

On January 27, 2023, the Supreme Court of Texas issued the Final General Emergency Order Regarding the COVID-19 State of Disaster. The Final Order renewed and amended the Fifty-Ninth Emergency Order and granted special rules pursuant to Governor Abbott’s declared state of disaster. The Final Order was effective February 1, 2023, and expired March 1, 2023.

The Final Order continued the practice of the previous orders, and provided specific authority for courts to operate remotely. All courts in Texas in any criminal case were authorized to require participants involved in a hearing to participate remotely, such as by teleconferencing, videoconferencing, or other means.  After consideration on the record or in a written order, municipal courts were authorized to require a lawyer, party, or juror to appear remotely. Courts were also authorized to conduct proceedings away from the courts’ usual location, if certain criteria were met.

Now that the Order has expired, courts have the same ability to conduct remote proceedings that they had prior to the first order, issued on March 13, 2020. If that ability exists, a court must find it in statutory authority or, arguably, its own inherent power. But if a court could not conduct a proceeding remotely prior to March 13, 2020, how can it today?

There is no general authority for courts to conduct proceedings remotely. Court processes have, for decades, been organized around a presumption that a court is a physical location, and a court proceeding is a process that occurs in that location. Court jurisdiction is described by the court’s physical location. Several important rights have been shaped by the concept of a physical gathering place for court, such as the right to confront witnesses, the right to a public trial, the rules of hearsay, and the process of voir dire. While none of those rights absolutely requires physical presence, the history and case law surrounding them has been shaped by the idea of it. With that in mind, beyond constitutional limitations, there are few times in law when conducting remote or videoconference proceedings is expressly prohibited.

Before the Emergency Orders, there was certainly some express authority in the Code of Criminal Procedure for conducting remote or videoconference proceedings:

• Article 15.17 expressly allows a magistrate to deliver required warnings and information by two-way electronic videoconference, with image and sound. This proceeding is required for any person arrested, whether they are subsequently brought to the jail or released for a later appearance before a magistrate under Article 14.06.
• Article 27.18 allows acceptance of a plea by videoconference, with the written agreement of the defendant and the State, provided the videoconference allows simultaneous full motion video and interactive communication of image and sound and the defendant can communicate privately with the defendant’s attorney without being recorded or overheard.

• Proceedings in municipal courts are governed by Chapter 45 of the Code of Criminal Procedure. In Chapter 45, there is some express authority to conduct remote and videoconference proceedings and possible implied authority:
  • Article 45.0201 expressly allows appearance by telephone or videoconference for hearings under Article 45.0445 (Reconsideration of Satisfaction of Fine or Costs) and Article 45.045 (Capias Pro Fine). Article 45.046 allows videoconferencing for commitment hearings.
  • Some practitioners find implied authority for videoconference or other remote proceedings in Articles 45.001 and 45.002. Under those articles, courts are directed to construe Chapter 45 to ensure appropriate dignity in court procedure without undue formalism, and to process cases without unnecessary expense or delay. Where the chapter does not provide a rule, courts are directed to apply other general provisions of the Code of Criminal Procedure “to the extent necessary to achieve the objectives” of the chapter. Although this obviously does not use the term “videoconference,” some practitioners read into this article a permissiveness for municipal courts.

Without the clear and specific authority previously offered to courts in the Emergency Orders, courts must continue under authority offered in the Code of Criminal Procedure. Some courts see many benefits to virtual proceedings but have halted the practice absent specific authority from the Legislature or caselaw. Others may find enough permissive authority in Chapter 45 or their inherent power to carry on with virtual proceedings. All courts, however, would benefit from clear guidance regarding virtual hearings coming out of the 88th Legislature. As of now, TMCEC has identified no bills filed that would expressly authorize virtual hearings for municipal courts. The filing deadline for legislation this session is March 10, 2023. Courts should always remember that any process employed must conform to due process and respect the rights of the accused at every step of the process.