Full Court Press

Municipal Court Week: November 7-11, 2022

Municipal Court Week is a time to appreciate the dedicated individuals that comprise the Texas municipal judiciary. It is also a great opportunity to share with the public the important role that local courts and their personnel play in preserving public safety. Every city celebrates in their own unique way.

TMCEC encourages all municipal courts to start planning now to make the most of this special time. The Municipal Court Week webpage is full of ideas and resources including photos and activity lists for cities’ past celebrations.

If your city has not celebrated before or is seeking more personalized assistance, TMCEC’s TxDOT Grant Administrators, Liz De La Garza (elizabeth@tmcec.com) and Ned Minevitz (ned@tmcec.com), can help! Simply shoot them an email saying you’d like to set up a phone call to discuss Municipal Court Week.

This Month in Case Law History: Sabine and Individual Liability for Officers of Corporations

31 years ago this month, a the Austin Court of Appeals reached a decision in a case cited in Chapter 15 of the TMCEC Bench Book (Corporations and Associations). Sabine Consol., Inc. v. State, 816 S.W.2d 784 (Tex. App.—Austin 1991, pet. ref’d) was decided on August 28, 1991.

In September 1985, two construction workers employed by Sabine Consolidated, Inc. (Sabine), a construction company, were killed when a trench they were working in collapsed. The State filed complaints against Sabine and its president, alleging criminally negligent homicide, on a theory that the accused failed to adequately shore and slope the trench, which caused the workers’ deaths.

Sabine’s president argued that Tex. Pen. Code § 7.23 was unconstitutionally vague as to liability of officers of corporations. § 7.23(b) states that an agent having “primary responsibility” for the discharge of a duty to act imposed by law on a corporation or association is criminally responsible for omission to discharge the duty to the same extent as if the duty were imposed by law directly on him. Sabine’s president argued that the term “primary responsibility” is vague and indefinite. The Austin Court of Appeals disagreed, holding that the term was not unconstitutionally vague or indefinite, and that the term was given its ordinary usage. The Court upheld the law imposing individual criminal liability for acts committed on behalf of a corporation or association.

Criminal law practitioners in Texas should be familiar with § 7.23. So should anyone that works in municipal court: corporations may be charged for violations of class C misdemeanors. An agent who has primary responsibility for the discharge of a duty, such as one imposed by a city ordinance may be charged in addition to any charge against the corporation. The decision to charge the agent, the corporation, or both, is left to the prosecutor, who must seek not to convict but to see that justice is done.

From the 800 Line: Community Service and Jail Credit Rates

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.

appointment-of-counsel-quick-reference Download

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. 