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.

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Mark Goodner sat down with Thomas Velez to discuss Velez joining the TMCEC team.

MG: Well, we are approaching the end of week one with you as a member of our team here at TMCEC. Let me again reiterate how thrilled we are to have you onboard. How is everything going so far and what’s your focus been this first week?

TV: Honestly, it’s been a relief. Everybody is kind and welcoming and the scope of the work is fascinating. I feel like my focus this first week is getting to know my new colleagues, learning the language here at TMCEC, and figuring out how my experience can be useful to us and our constituents.

MG: That’s great. It sounds like you’re hitting the ground running! This blog post will, in some ways, serve to introduce you to our constituency. I’d like them to know that you’ve been an attorney for over 10 years, mostly working as a prosecutor focusing on domestic violence cases. In addition to that, what would you want our constituents to know about you—either regarding your work experience or personally or both?

TV: I have spent my career as a trial attorney – in the district, county, and municipal courts.  I think I would really like everybody to know that I am truly a nerd at heart. If I could study all day for a living and then talk about what I learned that is what I would do; so, I think that is why being with TMCEC feels so perfect.

MG: I agree. That is perfect! Next week, you will be in attendance to observe New Judges and New Clerks seminars. I know that will be a lot of information to absorb even for someone as knowledgeable and experienced as you. What do you plan to focus on in the coming weeks and months as a new team member for TMCEC?

TV: My passion is for how things operate in the real-world and so my goal is to really demonstrate to our constituency that their experience is seen and heard. My focus for the near future is lots of learning. And I learn by doing so that means I will really be trying to go feet first into as much as I can. The team here is brilliant and they are responsible for so many amazing resources. I am excited to hopefully contribute to their library of success in an essential and meaningful way.

MG: I appreciate you taking the time to chat with me today. Hopefully, our constituents will read about you and introduce themselves to you soon at an upcoming event!

In Texas, gambling is illegal. Gambling is so illegal, in fact, that allowing charitable raffles at rodeos required Texas to amend its Constitution. See, Tex. Const. Art 3, Sec. 47 (d-1), Proposition No. 1, Nov. 2, 2021. Chapter 47 of the Penal Code clearly sets out a prohibition on, effectively, all gambling. Tex. Pen. Code § 47.02. Given this, one might wonder about the gambling clubs opening in several cities.

An affirmative defense exists in Chapter 47. Gambling is not illegal if: the gambling occurred in a public place; no person received any economic benefit other than personal winnings; and except for the advantage of skill or luck, the risks of losing and the chances of winning were the same for all participants. The poker clubs which have opened in cities in Texas operate under the theory that they are legal under Chapter 47 because they are private clubs, charge a membership fee but do not take a cut of winnings, and the games do not favor any player other than through skill or luck. Whether this is true is a legal question.

The Texas Attorney General has declined to issue an opinion on this question, pending the outcome of a case which has brought this before the Texas Supreme Court.

Many cities in Texas have considered whether to issue certificates of occupancy for gaming clubs. In Dallas, one club, The Texas Card House, applied for a certificate of occupancy, and the certificate was granted. Then it was revoked, reinstated, and revoked again. The matter has now been appealed to the Fifth Court of Appeals in Dallas. Depending upon the outcome of the Texas Card House v. Espinoza case, cities which granted these certificates may seek to enforce their zoning ordinances though any available means. Beyond the criminal enforcement of zoning ordinances, prohibited gambling under Penal Code Section 47.02 is a class C misdemeanor. Although these may not yet have found their way to municipal courts, there is a very real possibility that they will, depending upon how courts decide this point of law.

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.